GC E E RAL LAW S OF,,THE STATEn OF KANSA S, IN FOlRBCE AT THE CLOSE OF TrE SESSION NOF THE LEGISLA rTUJRE Tha d Marxeh 03th,; TO WHICH IS APPENDED TlHE CONSTITUTION OF THE UNITED STATES, TREATY OF CESSION, ORGANIC ACT, CONSTITUTION OF THE STATE OF KANSAS., AND THE ACT OF ADMISSION. PUBL~SHED BY AUTHORITY,. TOPEKA, KANSAS:'. H..BENNET, STATE PRJIN't IR. Printed at the Gazette (o's Steam Printing House, Clunctnatt, O. 1862 C ON T E N T S. PAGE. CONSTITUTION OF THlE UNITED STATES -- ------ 13 TREATY OF CESSION OF THE TERRITOPRY OF LOUISIANA, FROMi THE FRENCH REPUBLIC TO THE UNITED STATES _ —------ 32 ORGANIC ACT OF THE TERRITORY OF KANSAS ---— ___ -__ - -_-______ 37 CONSTITUTION OF THE STATE OF KANSAS- _ —-- 48 ACT FOR THE ADMISSION OF THE STATE OF KANSAS INTO THE UNION -------- 75 LAWS. CEAPTER 1, AN ACT relating to acknowledgments, oaths and depositions. Act of 1860 _-_______ — - -____________- - - — ___.- 79 2, " to confirm certain acknowledgments _________ _____ —- _ 79 3, " to authorize actions to be brought in certain cases. Acts of 1859 _- ___ ____ _-_ ______________ —------— __80 4, " to repeal certain acts ~______ ~_~_~_-_-_________~_______- 81 5, " to legalize certain acts...________ _________ __._________ 83 6, JOINT RESOLUTION, accepting the terms of the act of admission __ 84 7, AN ACT to district and apportion the State ______-____________ 84 8, " concerning apprentices. Acts 1859 ___-__________~_~____ 89 9, " making appropriations for the State Library, and expenses of the supreme court _-_ 94 10, " making appropriations for educating the deaf and dumb children of the State of Kansas, for the year 1862 -_____ 95 11, " making appropriations for the current expenses of the years 1861 and 1862 __________________________________ 96 12, " making appropriations for certain current Legislative and other expenses for the years 1861 and 1862 ------------ 100 4 d3JCONTENTS. PAGE. CHa-PT: 13, AN ACT to legalize the assessment of Davis county -. —--- 101l 14, " to regulate voluntary assignments with a view to insolvency. Acts 1860._..1___._ ___.... —--— I —-------— _ 102 15, " relating to attorneys at law. Acts 1859 _____ ~___-____~____ 102 16, " providing for the election of district attorneys and defining their duties. Act, June 1, 1861 -____________-1__- __ 105 17, " relating to the authentication of statutes, records, office papers, etc. Acts 1859 ___-__ ______ __________ _ 107 18, L' regulating actions against boats. Acts of 1859 ~______-____ 110 19, " respecting bonds, notes, and bills of exchange. Acts of 1859._ 112 20, (' to extend the time of the completion of the bridge across the ]Kansas river, at Tecumseh. —_-______- ______-_.__-___- 116 21, " to authorize the city of Wyandotte to purchase the Wyandotte Bridge ____ —---------- - - - -------- 116 22, JOINT RESOLUTION accepting a block of land in the city of Topeka, for capitol purposes_________ -__________- __ 116 23, AN ACT to provide for the incorporation of cemetery associations. Act of June 4, 1861____ _____ _ _____-____- ____ 117 24, " concerning plats of cities and towns. Acts of 1859 — ________ 119 25. " for the relief of occupying claimants __________-__-_____- 121 26, " to establish a code of civil procedure. Acts of 1859 — _____-_ 125 27, " to amend an act entitled "An act to establish a code of civil procedure." Acts of 1859 ______________-____ ___ 232 28, " to amend an act entitled "An act to establish a code of civil procedure." Acts of 1860. ________________-___ 233 29, " to amend an act entitled "An act to establish a code of civil procedure." Acts of 1860 _____- — _______ ____- _ 235 30, " to amend an act entitled "An act to establish a code of civil procedure." __ _______235 31, " to amend all act entitled "' An act to establish a code of civil procedure." ------------ 237 32, " to establish a code of criminal procedure. Acts of 1859. 238 33, " regulating crimes and punishments of crimes against the persons of individuals. Acts of 1859 ___- _____________- _ 287 34,'C defining and providing for the punishment of certain crimes therein named. Acts of 1861 ------ ---— _________- __ 346 35, " to establish a criminal court in Leavenworth county -_-_____ 348 3.36, " providing for the appointment of commissioners to take depositions in other Territories and States. Acts of 1859 __. 349 37, " relating to master commissioners. Act of May 18, 1861______ 350 38, " regulatii;g contracts and promises. Acts of 1859______.__ 351 39, " making valid contracts for the sale of improvements on public lands. Acts of' 1859. —- 352 CONTENTS. 5 PAGN. ~k.~:~~a 40, AN ACT providing for joint conventions of the two houses of the- State Legislature. Act of May 7, 1861 _ —-__ —__ 353 41, regulating conveyances. Acts of 1859 354 42, " legalizing certain conveyances made by L. C. Conery ------- 357 43,'~ respecting convicts. Acts of 1859 --— ____ —-— _ —_ ------ 358 447, " to enable universities and other institutions, societies and companies to become bodies corporate. Acts of 1859__- 360 45, a to incorporate churches - ___- ___- ____ —___ __-383 46, " to incorporate cities of the State of Kansas ___- ____- ____ 384 47, " to provide for the incorporation of towns and villages. Acts of 1859-.. —------— __ — ___ ________- -- ___-398 48, " to amend an act to incorporate the city of Elwood - -------—. 405 49, " to amend an act to incorporate the Gardner Town Company_- 406 50, " to amend an act to incorporate the City of Quindaro -------- 407 51, a to amend an act to incorporate the White Cloud City Company 408 52, b relating to counties and county officers. Acts of 1860____~.. 409 53,. respecting the duties of county and township officers. Acts of 1860 ----------- ---------- ---------- --------- 435 54, " relating to the organization of new counties. Act of June 4, 1861.-............____________-_ —---- __ 436 5, " to provide for the permanent location of the county seat of Anderson county ___._ 438 56,' to enable the county commissioners of Aitchison county to correct and revise tax books for 1861 ~_-___ -__._ 440 57, " to provide for the permanent location of the county seat of Chase county __-____ 440 58, " to provide for the permanent location of the county seat of Dickinson county ____-____441 59, " to legalize the action of the county board of Doniphan county- 443 60, i" to organize the county of Greenwood and to provide for the temporary location of the county seat ----— 443 6s 1, to change the name of Breckenridge county to Lyon county-_ 444 62, " setting apart Washington Park, in the town of Emporia, Breckenridge county, Kansas, for county buildings- _.. 445o 63, to provide for the transferring, transcribing and legalizing the records of Madison county; and to legalize all official acts of the county and township officers of said county__ 4465 64, t to provide for the temporary location of the county seat of Osage county -447, 65, " to provide for the permanent location of the seat of justice of Potawatomie county -____________-__.__ __-__- 449 66, " to organize and define the jurisdiction of the supreme court. Acts of May 21, 1861 --- -- 449 6 CONTENTS. PAGE. CHAPTER 67, AN ACT prescribing the duties of the reporter of the supreme court — __ 452 68, " relating to the organization of courts of justice and their powers and duties. Act of April 24, 1861 -__- ____-454 69, " regulating the terms of the district court in the several judicial districts. Act of May 20, 1861 -________ — _____ 456 70, " to amend an act entitled " An act regulating the terms of the district court in the several judicial districts." ~. —----- 460 71, " to amend an act entitled " An act regulating the terms of the district court in the several judicial districts."_-. _ 460 72, " to change the terms of the district court in the third and fifth judicial districts~.....___.......__...... 461 73, " to provide for the transferring of certain cases from the district court for the county of Morris to the district court for the county of Chase ------— _ —-----—. —-- -- _ - 463 74, " defining the duties and prescribing the qualifications of the clerks of the district courts. Acts of May 18, 1861 —._. 463 75, " to establish and define the jurisdiction of probate courts. Act of June 3, 1861 __ _ - ___ —------------------- 465 76, " relating to costs, where the State of Kansas, or any county in the State, is plaintiff __ ~____ —- __________ 466 77, " providing for the collection of damages in certain cases. Acts of 1858......-._467 78, " authorizing the transcribing of deeds and other instruments of writing for Dickinson county ----------------— _-_-_- 467 79, " relating to tax deeds in the city of Lawrence _-____ —- 468 80, " concerning descents and distributions. Acts of 1859 —--- --- 468 81, " concerning divorce and alimony. Acts of 1860 ___-___ _ 472 82, " supplementary to an act concerning divorce and alimony. Acts of June 4, 1862 ------ _ — __ ____ -__ 477 83, " relating to dower. Acts of 1860~_-_______________~ ___ 478 84, " to restrain dram shops and taverns, and to regulate the sale of intoxicating liquors. Acts of 1859- -...___ _- __-__ 486 *85, " to protect the purity of the ballot box __________ 490 86, " regulating elections, and to prescribe the qualifications of voters, and to prevent illegal voting. Act of May 13, 1861 490.87, to provide for the election of State, district, and other officers. Act of May 22, 1861 -___ —---— _ —---— ____ —----- 503 88~, " providing for the election of township officers. Act of May 23, 1861~ -------------— ~ —- --------- 504:89, " to prescribe the manner of contesting the election of State and county officers, members of the Legislature, and other officers. Act of June 3, 1861 _-___-____-__ —------- 505 90, " to create a State board of equalization. Act of June 3, 1861._ 511 CONTENTS. 7 PAGe,. CHAPTER 91, AN ACT respecting executors and administrators, of their appointment and removal from office. Acts of 1859 _____- _________ 512 92, " exempting certain property from sale on execution, or other process. Acts of 1859 ___- ______ ___ _________ 547 93, " to amend an act exempting certain property from sale on execution, or other process. Acts of 1860-______- _-__ 550 94, " amendatory to an act to exempt certain property from sale on execution or other process. Acts of 1860 _ —__________ 551 95, "' relating to executions returned not satisfied. Acts of 1860___ 551 96, " legalizing wire fence. Acts of 1860 _____-_______~_________ 552 97, " providing for division fence. Act of May 13, 1861______~ 553 98, c" regulating ferries. Acts of 1859 ~....___________~ ____ 555 99, " fixing the fees of the clerk of the supreme court, district attorneys, county officers, justices of the peace, constables, witnesses, jurors, referees, printers and notaries public__ 558 100, " regulating the rates of printers' fees for publishing legal advertisements and laws, and to repeal an act entitled "cAn act regulating the rates of printers' fees for publishing legal advertisements." ------— 566 101, " to prevent the firing of woods, marshes and prairies. Acts, 1860 567 102, " for the prevention of frauds and perjuries. Acts of 1859~_~. 568 103, " relative to fugitives from justice from other Territories and States. Acts of 1859 -_..._ 570 104, " to provide for the management and investment of the State school fund. Acts of June 4, 1861~____~___- _______ __ 572 105, " to provide for the protection of game. Acts of May 10, 1861 576 106, " concerning guardians and wards. Acts of 1859 _______-___ 5-6 107, " regulating proceedings on writs of habeas corpus. Acts of 1859 579 108, " for vacating highways, streets and alleys -_______________ 593 109, " for the maintenance and support of illegitimate children. Acts of 1859 -__- __..____ __-._.._______ __ 595 110, " regulating trials of impeachment, and fixing the compensation of members and officers of the court.-___-_ —__-______ 598 111, " regulating enclosures. Acts of 1859 _________~_~ ________ 599 112, " supplementary to an act regulating enclosures. Acts of 1860_ 600 113, " to restrain intercourse with the Indians. Acts of 1860 -____ 601 114, " to prohibit the selling of intoxicating liquor to Indians -_____ 601 115, " making citizens of certain Indians in Kansas Territory. Acts of 1860 __-__-__ __-___ _______________ 602 116, " regulating the interest of money. Acts of 1860 ____-______ 603 117, " to prevent and punish armed invasion from or into this Territory. Acts of 1860..- __ 604 118, " concerning county jails. Acts of 1859 ___-_____ 605 8 CONTENTS. PAGIo CHAPTER 119, AN ACT providing for the selection and summoning of grand and petit jurors. Acts of 1859. —_ ___- -_____-____- _.___ 607 1207:' relating to the organization of justices' courts, and their powers and duties. Act of May 22, 1861..-________-_- ______ 612 121, " regulating the jurisdiction and procedure before justices of the peace, and the duties of constables in civil cases. Acts of 1859 ___ — ___.__-_._________ ___ —___.__ __ 614 122, " to amend an act entitled "An act regulating the jurisdiction and procedure before justices of the peace, and the duties of constables in civil cases. Acts of 1860 __-__ __.. _- 653 123, " to define the duties of justices of the peace in cases of breaches of the pe:tce. Acts of 1859 ________ __ 654 124, " to amend an act entitled " An act to define the duties of justices of the peace in cases of breaches of the peace." Acts of 186-0 _658 125, "' confirming certain jurisdiction of justices of the peace in the city and county of Leavenworth __-____-_____-__ __ 659 126,' prescribing the number of justices of the peace in Easton Township, Leavenworth county --— _____.___________ 6598 127, " to increase the number of justices of the peace in Blue Rapids and Vermillion Townships ----------- ________ 660 128, " to increase the number of justices of the peace in Marmaton Township, Bourbon county __- __-___- ____- ____ 660 129, " to amend an act entitled " An act to incorporate the Kansas Valley Bank." ________________-____... ____ 661 130, " to establish a legal method by which to subdivide a section of land, as surveyed by the United States surveyors, into quarter sections. Acts of 1860 _______ ______- -__ 661 131, " containing several provisions regarding landlords, tenants, lessors and lessees. Acts of 1858 -___ ____ ___ 662 132, " in relation to landlords and tenants- __ _________ _____ 664 133,' relating tothe publication and distribution of the laws in force at the close of the present session of the Legislature —-- 664 134, " to provide for the distribution of the laws and journals of the Legislature. Act of June 4, 1861 -__________. —---- 675 135, " adopting the common law as the rule of action in this Territory, and regulating the authentication of statutes, and the taking effect thereof. Acts of 1859 _____.. —------ 678 136, Ad for securing liens to mechanics and others. Acts of 1859 778 137, " to create a lien in favor of mechanics and others, and to regulate the proceedings to enforce the collection,Of the same 680 138, " for the benefit of livery stable keepers. Acts of 1860 689 139, " concerning lunatics and habitual drunkards. Acts of 1858-__ 689 CONTENTS. 9 PAGE. CArPTER 140, AN ACT in relation to marriage. Acts of 1859 -____- ___ 695 141, " to protect the rights of married women, and in relation to the liabilities incident to the marriage relation. Acts of 1859 697 142, " to amend an act entitled "An act to protect the rights of married women, and in relation to the liabilities incident to the marriage relation. Acts of 1860 _____~_________ 699 143, " to organize and discipline the militia. Act of April 23, 1861 699 144, " supplementary to an act entitled "An act to organize and discipline the militia." Act of May 7, 1861 -_________ T718 145, " for the auditing of the expenses of the State militia during the year 1861 7_____________________-__-________ 719 146, " relating to minors. Acts of 1859 -__~________ - -_________ 720 147,'" to enable Andrew S. Hughes, a minor, to donate personal property ____ ____ —---------------------------- 721 148, " authorizing George E. Van Deusen, a minor, to exercise the rights of majority _______- ______-______~_________ 721 149,' to provide for the foreclosure of mortgages. Acts of 1859 _ 722 150, " to regulate chattel mortgages, and bills of sale of personal property. Acts of 1860 -_______ ____________-__ 722 151, " to provide for entering satisfaction of mortgages -___________ 724 152, " to prevent the mutilation or alteration of acts and bills. Acts of 1859.-___7.. ___________-___ _______-725 153, i" respecting notaries public. Acts of 1859_______-_________- 725 154, " to prevent nuisances. Acts of 1858 ______- _____ —---- 726 155, " regulating oaths, and prescribing the form of oaths of office. Acts of 1859 __-7___ _____ —-_- ----- 728 156, " prescribing the form of oath or affirmation, and qualification of officers, privates and musicians. Act of May 11, 1861 729 157, " to restrain the issuing of county Warrants ___________- _____ 730 158, " in relation to lost or destroyed county orders or warrants..... 731 159, " to provide for the recording of land patents __-____-______ 732 160, " to facilitate the settlement of the estates of deceased partners. Acts of 1860___ ~732 161, " for the formation of limited partnerships. Acts of 1860 _____ 739 162, " to provide for the partition of real estate. Acts of 1860 -___- 740 163, " for the relief of the poor — ___________- _______________745 164, " to provide for the State printing. Act of May 15, 1861 _-___.751 165, " supplementary to and amendatory of an act entitled "An act to provide for the State printing." ___- ____-___ 761 166, " to establish prison bounds. Acts of 1860 — _________._____- _ 762 167, " relating to the commitment of prisoners. Acts of 1860 -_-__ 763 168, " relative to tlie disposition of unclaimed property. Acts of 1858 763 169, " concerning writs of Quo Warranto. Acts of 1859 ~...... _ _ 766 10 CONTENTS. PAGE, CHAPTER 170, AN ACT relating to railroad companies ------------------------- - 767 171, " to provide for the redemption of real estate sold under execution, order of sale, or other final process. Act of June 4, 1861 _______ —--------------- _769 172, " relating to sales of real property. Acts of 1860 -________ __ 772 173, " to recover public records. Acts of 1859___ __8 ___-___ —- __ 774 174, " repealing an act to establish the office of land district recorder, and providing for the disposition of the records of said offices -___-________ _______ —_ —-- _775 175, " to provide revenue for the year 1862 ---- ____ __ — ------ 778 176, " defining the mode of laying out and establishing roads. Acts of 1860 ___- ------------------------------------- 779 177, " locating a State road from Lawrence to Paoli -__ —- ----- 798 178, " to locate a certain road 7_____________-___ —--- __ _ 798 179, " to provide for commissioners to assess damages sustained by the location of certain roads-____ —____ _ —-. - __ — __ 799 180, " to establish the salaries of State officers, justices of the supreme court, judges of the district court, and officers of the Legislature. Act of May 20, 1861_. _____ 800 181, a for the regulation and support of common schools. Act of 1861 802 182, " to provide for the distribution of the school fund —_____-. _. 821 183, " to promote medical science. Act of May 7, 1861 ~_ —------ 821 184, " relating to settlers upon lands without any legal right thereto. Act of June 4, 1861 ___ —--------- ------------ - 823 185, " to organize a State agricultural society _ ------------------ 824 186, " to authorize the formation of county and town agricultural and horticultural societies. Act of May 10, 1861 ______ 825 187, " defining the powers and duties of certain State officers. Act of June 3, 1861 -.-_______ —---— __-______ ___ 826 188, "' concerning the construction of statutes. Acts of 1859 ~_____ 837 189, " to provide for the protection of stock from contagious diseases. Act of May 1, 1861 --------- ------------------- 839 190, " for the protection of property in horses and other animals. Acts of 1860 ______ —- ___ —--------- -------------- 841 191, " respecting horses and mules. Acts of 1858 ------- ____ 842 192, " to provide for the regulation of the running at large of swine. Acts of 1860_____________ ~___ — ----— ______ 843 193, " supplemental and amendatory to "An act to provide for the running at large of swine." Acts of 1860 ________-____ 845 194, " to regulate the taking up and posting of strays. Act of May 23, 1861~______ —----- ----- ------ 845 195, " relating to suits on foreign judgments. ------------------- 850 196, " defining the duties of county surveyor_____ —.__- ___ —------- 850 CONTENTS. 11 PAGE. CHAPTER 197, AN ACT to provide for the assessment and collection of taxes. Acts of 1860 -----------------— __- ___- ________ —-— _ 857 198, " to amend an act to provide for the assessment and collection of taxes__ __._ _-______ —____ —_-__ —____ 874 199, " relating to the payment of taxes. Acts of 1860 - -----------— 881 200, " to require certain counties to collect and pay over delinquent territorial taxes __ —-_- - ________ _______ _882 201, " to authorize the commissioners of Miami county to correct errors and irregularities in the assessment and collection of taxes.-......._~__ ____ ______- __- ___-___-_883 202, " regulating the assessment and collection of taxes upon certain lands- __ —---- 883 203, " relating to townships and township officers. Acts of 1860 _-. 884 204, " to regulate the entries and disposal of town sites. Acts of 1858 889 205, " prescribing the duties and liabilities of the treasurer of State. Act of April 26, 1861 _____ ~________ __~_______ 892 206, " to punish, by fine, the county and State treasurer for dealing in scrip __ — - - - - -_ 894 207, " to prevent and punish trespasses on school lands. Act of June 4, 1861 ____ —___ — ___~_____~ __-__ -_____ 895 208, " to prevent certain trespasses. Acts of 1859 _-___ ____. 896 209, " concerning trusts and powers. Acts of 1858 ~.... —------- 897 210, " to provide for filling vacancies in the office of county assessor. Act of June 4, 1861 -_______________________ 899 211, " regulating weights and measures. Act of 1858 ----------- 900 212, " regulating weights and measures — ___ __ —-— __ -- ------ 901 213, " providing for the protection of widows and minor children. Act of June 5, 1861 ~_-__~___ __________~ __-_- 902 214, " for the relief of widows. Act of June 20, 1861 ~ __ ----- 902 215, " regulating wills. Acts of 1859 ____~_________~_____- _____ 903 216, " to provide for the taking effect of laws. Acts of 1858_____ —- 905 LIST OF LAwS OF A GENERAL NATURE NOT PUBLISHED IN THIS VOLUME ------- 907 CONSTITUTION OF THE UNITED STATES OF AMERICA. PREAMBLE. Objects of the Constitution. CONSTITUTION. ARTICLE I. Legislative Power. II. Executive Power. III. Judicial Power. IV. Relative Rights of States. V. How the Constitution may:be amended. VI. Of former Debts, supremacy of the Constitution and Laws of the United States, and oath required of Public Officers. VII. Of the ratification of the Constitution. AMENDMENTS. I. Religious Freedom and the Rights of Speech, the Press, and of the People to assemble and Petition. II. Right to bear Arms. III. Restrictions on Quartering Troops. IV. Restrictions on the Right of Search and Seizure. V. Rights of Persons charged with Crimes, and of Private Property. VI. Mode of Trial in Criminal Cases. VII. Of Trials by Jury in Civil Actions. VIII. Of excessive Bail, and restrictions on Fines and other Punishments. IX. Rights reserved to the People.'X. Powers retained by the States and People. XI. United States Courts not to have jurisdiction of Suits brought by individuals against one of the States. XII. Manner of choosing President and Vice President. 2 14 CONSTITUTION OF PREAMBLE. Pleasmble. WE, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America, ARTICLE I. SECTION I. TLegislativepow- 1. All legislative powers herein granted shall be vested in a er vested in Conre8,s. Congress of the United States, which shall consist. of a Senate and House of Representatives. SECTION II. sentatives howP 1. The House of Representatives shall be composed of memcomposed. bers, chosen every second year, by the People of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. Qualifications of 2. No person shall be a representative who shall not have: representative. 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. Apporeptionment 3. Representatives and direct taxes shall be apportioned tives and direct 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, ineluding those bound to service for a term of years, and excluding Indians not taxed- three-fifths of all other persons. Census. 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 thousand, but each State shall have at least one representative; and, until such enumeration shall be made, the State of New Hampsamre shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, N ew York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South, Carolina five, and Georgia three, THE UNITED STATES. 15 4. When vacancies happen in the representation from any acancies to be State, the executive authority thereof shall issue writs of election to fill such vacancies. 5. The House of Representatives shall choose their speaker House of representatives to and other officers; and shall have the sole power of impeach- choosestheir own ment. Impeachment. SECTION III. 1. The Senate of the United States shall be composed of two Senate how corlnsenators from each State, chosen by the Legislature thereof, for posed. six years; and each senator shall have one vote. 2. Immediately after they shall be assembled in consequence How cla.silic. 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 waay be chosen every second year; and, if vacancies happen Oftemporary by resignation, or otherwise, during the recess of the Legisla- appoitments. ture of any State, the Executive thereof may make temporary appointments, until the meeting of the Legislature, which shall then fill such vacancies. 3. No person shall be a senator who shall not have attained Qualifications of 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. 4. The Vice President of the United States shall be Presi- Vice President to be president dent of the Senate, but shall have no vote, unless they be qf the Senate. equally divided. 5. The Senate shall choose their other officers, and, also, a President pro tern. and other President pro tempore, in the absence of the Vice President, or officers may lbe chosen. when he shall exercise the office of President of the United States. 6. The Senate shall have the sole power to try all impeach- Power to try impeachments. 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 person shall be convicted without the concurrence of two-thirds of the members present. 7. Judgment in cases of impeachment shall not extend fur- Effect of jldgment ill such ther than to removal from office, and disqualification to holdcases. and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable 1q3 CONSTITUTION OF and subject to indictment, trial, judgment and punishment according to law. SECTION IV. Times, places, 1. The times, places, and manner of holding elections for and manner of eleotingmem- senators and representatives shall be prescribed in each State, by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. Se3sions annual, 2. 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 V. Mambership. 1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each Quorum. shall constitute a quorum to do business; but a smaller numAdjournments. ber 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. uiles and'orders 2. Each House may determine the rules of its proceedings, Censures and expulsion. punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. Journals of each 3. Each House shall keep a journal of its proceedings, and house. from time to time publish the same, excepting such parts as may in their judgment require secrecy, and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal. Limitation of 4. Neither house, during the session of Congress, shall, the right to adjourn. 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 VI. Compensation 1. The Senators and Representatives shall receive a comand privileges. pensation 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 attendance 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. 2. No Senator or Representative shall, during the time for THE UNITED STATES. [17 which he was elected, be appointed to any civil office under the To wheatmoffeoC authority of the United States, which shall have been created, gresspphaltn~t or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office. SECTION VII. 1. All bills for raising revenue shall originate in the House of bills for ra',ing revexlnue. of Representatives; but the Senate may propose or concur with amendments, as on other bills. 2. Every bill which shall have passed the House of Repre- Ofthe President's veto, in sentatives and the Senate, shall, before it become a law, be caseofbills. presented to the President of the United States; if he approve, 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 objections 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. 3. Every order, resolution or vote to which the concurrence Alsoin case of concurrent orof the Senate and House of Representatives may be necessary, ders, resolntion or votes. (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 being 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 VIII. The Congress shall have power 1. To lay and collect taxes, duties, imposts, and excises, to Powers of Cnpay the debts and provide for the common defense and general gress. 118 CONSTITUTION OF welfare of the United States; but all duties, imposts and excises shall be\ uniform throughout the United States; 2. To borrow money on the credit of the United States; 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; 4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; 5. To coin money, regulate the value thereof, and of foreig, coin, and fix the standard of weights and measures; 6. To provide for the punishment of counterfeiting the securities and current coin of the United States; 7. To establish post offices -and post roads; 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 9. To constitute tribunals inferior to the Supreme Court; 10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; 13. To provide and maintain a navy; 14. To make rules for the government and regulation of the land and naval forces; 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; 16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed 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 discipline prescribed by Congress; 17. 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 Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings; and, THE UNITED STATES. 19 18. 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 IX. 1. The migration or importation of such persons as any of Restriti'ons the States now existing shall think proper' to admit, shall not f Congres. 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 dollars for each person. 2. 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. 3. No bill of attainder or ex post facto law shall be passed. 4. No capitation or -other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. 5. No tax or duty shall be laid on articles exported from any State. 6. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State, be obliged to enter, clear or pay duties in another. 7. No money shall be drawn from the treasury, but in consequence 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. 8. 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 whatever, from any king, prince or foreign State. SECTION X. 1. No State shall enter into any treaty, alliance or confed- Powoertswithhel(,I eration; grant letters of marque and reprisal; coin money; vidual States. emit bills of credit; make anything 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 grunt any title of nobility. 2. No State shall, without the consent of the Congress, lay 20 CONSTITUTION OF Cpngessit cr any imposts or duties on imports or exports, except what may p ermit certain acts, otherwisi be absolutely necessary for executing its inspection laws; and the States. the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, 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. ARTICLE II. SECTION I. vice Presidentd 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: 2. Each State shall appoint, in such manner as the Legisla-,lectorsofthoseture 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. Original ode of 3. The Electors shall meet in their respective States, and electing PresiCent and Vice vote by ballot for two persons, of whom one, at least, shall not President. [Amendmentl2 be an inhabitant of the same State with themselves. And they substituted for b i t they the third clause i, Art. 2, l.] shall make a list of all the persons voted for, 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 sh.all then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the THE UNITED STATES. 21 representation from each State having one vote; a quorum for this purpose shall consist of a member or members from twothirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors, shall be the Vice President. But if there should remain two or more who have equal votes,[ the Senate shall choose from them, by ballot, the Vice President. 4. The Congress may determine the time of choosing Elec- imgEle of choostors, and the day on which they shall give their votes; which wlt they shall day shall be the same throughout the United States. 5. No person, except a natural born citizen, or a citizen of Qalifieations of the United States, at the time of the addption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. 6. In case of the removal of the President from office, or of Psovisionsfrcy his death, resignation or inability to discharge the powers and in that office. 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 accordingly, until the disability be removed, or a President shall be elected. 7. The President shall, at stated times, receive for his ser-esidOntso. vices, a compensation, which shall neither be increased 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. 8. Before' he enter on the execution of his office, he shall Hisoath, 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 will, to the best of my ability, preserve, protect and defend the Constitution of the United States." SECTION II. 1. The President shall be commander-in-chief of the army Presidnt to b and navy of the United States, and of the militia of the several chief.'States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer May require the CONSTITUTION OF heads of depart- in each of the executive departments, upon any subject, reinents. lating to the duties of their respective offices; and he shall eriedones and have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Of treaties and 2. He shall have power, by and with the advice and consent foreign interof the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and Appo~intment of with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court and all other officers of the United States, whose appointments are not herein otherwise 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 departments. Of vacancies in 3. The President shall have power to fill up all vacancies the recess of the snaite. that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. SECTION III. Futher powers 1. He shall, from time to time, give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them; and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed; and shall commission all the officers of the United States. SECTION IV. Otf removal of 1. The President, Vice President and all civil officers of the officers of the U. S. by impeach-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. Judicial power, 1. The judicial power of the United States shall be vested in how vested. one Supreme Court, and in such inferior Courts as the Congress THIE UNITED STATES. 23 may, from time to time, ordain and establish. The judges,Tenre of offe'. both of the Supreme and inferior Courts, shall hold their offices during good behavior, and shall, at stated times, receive for Compensation. their services, a compensation, which shall not be diminished during their continuance in office. SECTION II. 1. The judicial power shall extend to all cases in law and Extent ofthlciiequity, arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their [See amendment authority; to all cases affecting ambassadors, other public min- 11 isters and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. 2. In all cases affecting ambassadors, other public ministers Original and appellate jurisdicand consuls, and those in which a State shall be a party, the tion of the Slpremne Court. 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. 3. The trial of all crimes, except in cases of impeachment, Of trialbyY, jiry. ntWhere to be held shall be by jury; and such trial shall be held in the State where the said crime shall have been committed, but when not committed within any State, the trial shall be at such place or places as the Congress may, by law, have directed. SECTION III. 1. Treason against the United States shall consist only in oDeofition o levying war against them or in adhering to their enemies, giv- mode of proof. ing 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. 2. The Congress shall have power to declare the punishmentIts punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attained. 24 CONSTITUTION OF ARTICLE IV. SECTION I. Mutual credit to 1. Full faith and credit shall be given in each State to the be given to the public acts of nublic acts, records, and judicial proceedings of every other the states. M~ode' of authenticat- State. And the Congress may, by general laws, prescribe the ing. manner in which such acts, records, and proceedings shall be proved, and the effect thereof. SECTION II. Reciprocal right 1. The citizens of each State shall be entitled to all the privof ileges and immunities of citizens ili the several States. Fugitives from 2. A person charged in any State with treason, felony or justice. 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 removed to the State having jurisdiction of the crime. Fugitives from 3. No person held to service or labor in one State, under the service or labor.. laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due. SECTION III. Admission of 1. New States may be admitted by the Congress into this new states. 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. Power of Con- 2. The Congress shall have power to dispose of and male all gress as to the territory and needful rules and regulations respecting the territory, or other other property of the U. S. property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. SECTION IV. Obligation of 1. The United States shall guarantee to every State in this the U. S. to protect the several Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence. THE UNITED STATES. 25'ARTICLE V. SECTION I. 1. The Congress, whenever two-thirds of both Houses shall How tho onst. deem it necessary, shall propose amendments to this Constitu- amended. tion, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purpdses, as part of this constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof; as the one or the other mode of ratification may be proposed by Congress: Provided, That no amendment, which may be made prior to the year one thousand Proiso. 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. SECTION I. 1. All debts contracted, and engagements entered into, be-Debts under the confederation fore the adoption of this Constitution, shall be as valid against the "asumed by the United States. United States under this Constitution, as under the confederation. 2. This Constitution and the laws of the United States which Supremacy of the U. S. constishall be made in pursuance thereof, and all treaties made, ortution and laws. which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution sr laws of any State to the contrary notwithstanding. 3. The Senators and Representatives before mentioned, and Oath required of public officers. the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be re- No religioustest quired as a qualification to any office, or public trust, under the United States. ARTICLE VII. SECTION I. 1. The ratification of the conventions of nine States shall be 26 CONSTITUTION OF Ratification of sufficient for the establishment of this Constitution, between 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 eighty-seven, and of the Independence of the United States of America, the twelfth.; In witness- whereof, we have hereunto subscribed our names. GEORGE WASHINGTON,; President and Deputy from Virginia. NEW HAM-PSHIRE. JOHN LANGDON, - NICHOLAS GILMAN. MASSACHUSETTS. NATHANIEL GORMAN, RUFUS KING. CONNECTICUT. WM. SAM'L JOHNSON, ROGER SHERMAN. NEW YORK. ALEXANDER HAMILTON. NEW JERSEY. WIL: LIVINGSTON, DAVID BREARLY, WM. PATTERSON, JONA. DAYTON. PENNSYLVANIA. B. FRANKLIN, THOMAS MIIFFLIN, ROBT. MORRIS, GEO. CLYMER, THoS. FITZSIMONS, JARED INGERSOLL, JAMES WILSON, Gou V: MORRIS. DELAWARE.; GEO. READ, GUNNING BEDFORD, JR., JOHN DICKINSON, RICHARD BASSETT, JACO: BROOM. MARYLAND. JAMES MCHEN:RY, DAN: OF ST. THOS. JENIFER. DANL. CARROLL. VIRGINIA. JOHN BLAIR, JAMES MADISON, JR. NORTH CAROLINA. WM. BLOUNT, RICH'D DOBBS SPAIGI%, I-U: WILLIAMSON. SOUTH CAROLINA. J. RUTLEDGE, CHARLES COTESWOTTH PINCKNE~, CHARLES PINCKNEY, PIERCE BUTLER GEORGIA. WILLIAM FEW, ABR. BALDWIN. ATTEST: WILLIAM JA'CKSON, Secretary. THE UNITED STATES. 27 IN CONVENTION. MONDAY, September 17th, 1787. Present-The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia' 1. Resolved, That the preceding Constitution be laid before the United States in Congress assembled, and that it is the opinion of this Convention, that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under the recommendation of' its Legislature, for their assent and ratification; and that each convention assenting to and ratifying the same, should give notice thereof to the United States in Congress assembled. 2. Resolved, That it is the opinion of this convention, that as soon as the conventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which: electors should be appointed by the States which shall have ratified the same, and a day on which the electors should assemble tovote for the President, and the time and: place for commencing proceedings under this Constiitution. That after such publication, the electors should be appointed, and the Senators and Representatives elected. That the electors should meet on the day fixed for the election of the President, and should transmit their votes, certified, signed, sealed and- directed as the Constitution requires, to the Secretary. of the United, States, in. Congress assembled; that the Senators and Representatives should convene at the time and place assigned; that the Senators should appoint a President 4of the Senate, for the sole purpose of receiving, opening, and counting the votes for: President; and that after he shall be chosen, the: Congress, together' with; the President, should, without delay, proceed to execute this Constitution. By the unanimous order of the convention: GEORGE WASHINGTON, President. WILLIAM JACKSON, Secretary. 28 THE CONSTITUTION AMENDMENTS TO THE CONSTITUTION. [The conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, Congress, at the session begun and held at the city of New York, on Wednesday, the 4th of March, 1789, proposed to the Legislature of the several States, twelve amendments, ten of which only were adopted. They are the ten first following:] ARTICLE I. doei ad tfree Congress shall make no law respecting an establishment'of the prefsspeeh, religion, or prohibiting the free exercise thereof; or abridging petition. the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the government for a redress of -grievances. ARTICLE II. aRight to bearn A well regulated militia being necessary to the security of a arms. free State, the right of the people to keep and bear arms shall not be infringed. ARTICLE III. Restrictions on No. soldier shall, in time of peace, be quartered in any house quartering troops. without the consent of the owner; nor is time of war, but in a manner to be prescribed by law. ARTICLE IV. Restrictions on The right of the people to be secure in their persons, houses ureh d seizpapers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. THE UNITED STATES. 29 ARTICLE V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a sons charged with crimes an d. grand jury, except in cases arising in the land or naval forces, of private property. or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject 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, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. ARTICLE VI. In all criminal prosecutions, the accused shall enjoy the right Mode of trial ii criminal cases. to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. ARTICLE VII. In suits at common law, where the value in controversy shall of trial by jury in civil actions. exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. ARTICLE VIII. Excessive bail shall not be required, nor excessive fines im- Of bail. Offines or other punishposed, nor cruel and unusual punishments inflicted.. ments. ARTICLE IX. The enumeration in the constitution, of certain rights, shall Rights reserved not be construed to deny or disparage others retained by theto the popl. people. ARTICLE X. The powers not delegated to the United States by the Con- Powers retained by the states and stitution, nor prohibited by it to the States, are reserved to the pepl.tt States respectively, or to the people. 3 30 CONSTITUTION OF ARTICLE XI. t. S.courtsnot The judicial power of the United States shall not be conto have jurisdlcbrouoght byundi strued to extend to any suit in law or equity, commenced or ode of thegstates.prosecuted against one of the United States by citizens of a;nother State, or by citizens or subjects of any foreign State. ARTICLE XII. chaosing Presi- 1. The electors shall meet in their respective States and vote tnt awnd Vice by ballot for President and Vice President, one of whom, at President. least, shall not be an inhabitant of the same State with themselves; 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 persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of 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 President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. Caoice by house But in choosing the President, the votes shall be taken by of representatives in case of States, the representation from each State having one vote; a no election by electors. 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 devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional debility of the President. choice of Vice 2. The person having the greatest number of votes as Vice President by the enate, in elBseofPresidennt, shall be the Vice President, if such number be a mano election by the eletors. jority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President. A quo THE UNITED STATES. 31 rum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of His qualifica. President, shall be eligible to that of Vice President of the United States. ARTICLE XIII. If any citizen of the United States shall accept, claim, re- If any citizen of the U. S. shall ceive or retain any title of nobility or honor, or shall, without accept any title, present, etc., the consent of Congress, accept and retain any present, pen- fromany forigl' sion, office or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them. [NoTE. —The 11th article of the amendments to the Constitution was proposed at the second session of the third Congress; the 12th article, at the first session of the eighth Congress; and the 13th Article, at the second session of the eleventh Congress.] TRIEATY OF CESSION. TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE FRENCH REPUBLIC. The President of the United States of America and the First Consul of the French Republic, in the name of the French people, desiring to remove all source of misunderstanding relative to objects of discussion mentioned in the second and fifth articles of the convention of the 8th Vendemaire, an 9, (30 September, 1800,) relative to the rights claimed by the United States in virtue of the treaty concluded at Madrid, the 27th of October, 1795, between his Catholic Majesty and the said United States, and willing to strengthen the union and friendship which at the time of the said convention was happily re-established between the two nations, have respectively named their plenipotentiaries, to-wit: the President of the United States of America, by and with the advice and consent lltobrt R. iv- of the Senate of the said States, Robert R. Livingston, minisingston, ministe, of theUnitedter plenipotentiary of the United States, and James Monroe, minister plenipotentiary and envoy extraordinary of the said States, near the government of the French Republic; and the First Consul, in the name of the French people, the French cit-,.bt~erble boisizen Barbe Marbois, minister of the public treasury, who, after Fraence. having respectively exchanged their full powers, have agreed to the following articles: ARTICLE I. Cession from Whereas, By the article the third of the treaty concluded Spain to France. at St, Ildefonso, the 9th Vendemaire, an 9, (Ist October, 1800,) between the First Consul of the French Republic and his Catholic Majesty, it was agreed as follows: " His Catholic Majesty promises and engages on his part to retrocede ot the TREATY OF CESSION. 33 French Republic, six months after the full and entire execution of the conditions and stipulations herein relative to his royal highness, the Duke of Parma, the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it; and such as it should be after the treaties subsequently entered into between Spain and other States;" and WAereas, In pursuance of the treaty, and particularly of the third article, the French Republic has an incontestible title to the domain and the possession of the said territory; the First Consuil of the French Republic desiring to give to the United States a strong proof of his friendship, doth hereby cede to the United States, in the name of the French Republic, forever, and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French Republic in virtue of the above mentioned treaty, concluded with his Catholic Majesty. ARTICLE 11. In the cession made by the preceding article, are included cessiond incla,' the adjacent islands belonging to Louisiana, all public lots and property not squares, vacant lands, and all public buildings, fortifications, barracks and other edifices, which are not private property. The archives, papers and documents relative to the domain Archives,ant public doenand sovereignty of Louisiana and its dependencies, will bements. left in the possession of the commissioners of the United States, and copies will be afterwards given in due form to the magistrates and municipal officers, of such of the said papers and documents as may be necessary to them. ARTICLE III. The inhabitants of the ceded territory shall be incorporated Rights of inhal — in the union of the United States, and admitted as soon as teae. possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess. ARTICLE IV, There shall be sent, by the government of France, a com-A conissary ofO France to the end that he do evey act necesse sent missary to Louisiana, to the end that he do every act necessary, to Lou~isiana. 84 TREATY OF CESSION. as well to receive from the officers of his Catholic Majesty the said country and its dependencies in the name of the French Republic, if it has not been already done, as to transmit it in the name of the French Republic to the commissary or agent of the United States. ARTICLE V. MJilitary posts to Immediately after the ratification of the present treaty by be remitted, and troops to be em- the President of the United States, and in case that of the barked. First Consul shall have been previously obtained, the commissary of the French Republic shall remit all the military posts of New Orleans and other parts of the ceded territory, to the commissary or commissaries named by the President to take possession; the troops, whether of France or Spain, who may be there, shall cease to occupy any military post from the time of taking possession, and shall be embarked as soon as possible, in the course of three months after the ratification of this treaty. ARTICLE VI. Treaties of The United States promise to execute such treaties and arFrance with Indians to be exe- tides as may have been agreed between Spain and the tribes:roted. and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon. ARTICLE VII. princto bed e As it is reciprocally advantageous to the commerce of France empt from and the United States to encourage the communication of both greater duties and tonnage, nations for a limited time, in the country ceded by the presthan ditizens of the United States, for 12 ent treaty, until general arrangements relative to the commerce years. of both nations may be agreed on, it has been agreed between the contracting parties, that the French ships, coming directly from France or any of her colonies, loaded only with the produce or manufactures of France or her said colonies, and the ships of Spain coming directly from Spain or any of her colonies, loaded only with the produce or manufactures of Spain or her colonies, shall be admitted, during the space of twelve years, in the ports of New Orleans, and all other legal ports of entry within the ceded territory, in the same manner as the ships of the United States, coming directly from France or Spain or any of their colonies, without being subject to anv TREATY OF CESSION. 35 other or greater duty on merchandize, or other or greater tonnage than those paid by the citizens of the United States. I)uring the space of time above mentioned, no other nation No other nations to have the shall have a right to the same privileges in the ports of the same privilege. ceded territory; the twelve years shall commence three months after the exchange -of ratifications, if it shall take place in France, or three months after it shall have been notified at Paris to the French government, if it shall take place in the United States; it is, however, well understood, that the object of the above article is to favor the manufactures, commerce, freight and navigation of France and Spain, so fir as relates to the iMrportations that the French and Spanish shall make into the said ports of the United States, without in any sort affecting the regulations that the United States may make concerning the exportation of tlie produce and merchandise of the United States, or any right they may have to make such regulations. ARTICLE VIII. In future, and forever after the expiration of the twelveruture priviyears, the ships of France shall be treated upon the footing leges of France. of the most favored nations in' the ports above mentioned. ARTICLE IX. The particular convention signed this day by the respective Treaty:relative to payment of' ministers, having for its object to provide for the payment of debts due to citizens of the U. S. debts due to the citizens of the United States by the French approved. Republic, prior to the 30th of September, 1800, (8th Vendemaire, 9,) is approved, and to have its execution in the same manner as if it had been inserted in the present treaty, and it shall be ratified in the same form and in the same time, so that the one shall not be ratified distinct from the other. Another particular convention, signed at the same date as the present treaty, relative to a definite rule between the contracting parties, is in the like manner approved, and will be ratified in the same form and in the same time, and jointly. ARTICLE X. The present treaty shall be ratified in good and due form, and the ratification shall be exchanged in the space of six months after the date of the signature by the ministers plenipotentiary, or sooner if possible. 36 TREATY OF CESSION. In faith whereof, the respective plenipotentiaries have signed these articles in the French and Englsh languages, declaring nevertheless, that the present treaty was originally agreed to in the French language; and have thereunto set their seals. Done at Paris, the tenth day of Floreal, in the eleventh year of the French Republic, and the 30th April, 1803. ROBERT R. LIVINGSTON, [L. S.1 JAMES MONROE, [L. s.] BARBE MARBOI, [L. S.] OIRGANIC ACT. AN ACT TO ORGANIZE THE. TERRITORY OF KANSAS. SECTION 19. And be itfurther enacted, That all that part of the territory of the United States included within the following limits, except such portions thereof as are hereinafter expressly exempted from the operations of this act, to wit: beginning at a point on the western boundary of the State of Bondaries. Missouri, where the thirty-seventh parallel of north latitude crosses the same; thence west on said parallel to the eastern boundary of New Mexico; thence north on said boundary to latitude thirty-eight; thence following said boundary westward to the east boundary of the Territory of Utah, on the summit of the Rocky Mountains; thence northward on said summit to the fortieth parallel of latitude; thence east on said parallel to the western boundary of the State of Missouri; thence south with the western boundary of said State, to the place of beginning, be, and the same is hereby created into a temporary government by the name of the Territory of Kansas, and when admitted as a State or States, the said Territory, or any portion of the same, shall be received into the Union with or without slavery, as their constitution may prescribe at the time of their admission; Provided, That nothing in this Territory may act contained, shall be construed to inhibit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such times as Congress shall deem convenient and proper, or from attaching any portion of said Territory to any other State or Territory of the United States; Providedfurther, That nothing in this act contained Rights of,dians not to be mirshall be construed to impair the rights of person or property red. now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between 38 ORGANIC ACT. Territory be- the United States and such Indians, or to include any territory longing to any Indian triberot which by treaty with any Indian tribe is not, without the conritorial or State sent of said tribe, to be included within the territorial limits limits. or jurisdiction of any State or Territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Kansas, until said tribe shall signify their assent to the President of the United States to be included within the said Territory of Kansas, or to affect the Control of Indi- authority of the government of the United States to make any an affairs reserved to the ui- regulation respecting such Indians, their lands, property, or ted States. other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed. Executive. SEC. 20. And be it further enacted, That the executive power and authority in and over said Territory of Kansas, shall be invested in a Governor, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The Governor shall reside within said Territory, and shall be Commander-in-chief of the Militia thereof. HIe may Governor may grant pardons and respites for offenses against the laws of said grant pardons. Territory, and reprieves for offenses against the laws of the United States, until the decision of the President can be made Shall commis- known thereon; he shall commission all officers who shall be siQoni officers. appointed to office under the laws of the said Territory, and shall take care that the laws be faithfully executed. SEC. 21. And be it fJrther enacted, That there shall be a Secretaryof the Secretary of said Territory, who shall reside therein, and hold Territory his office for five years, unless sooner removed by the President Duties. of the United States; he shall record and preserve all the laws and proceedings of the Legislative Assembly hereinafter constituted, and all the acts and proceedings of the Governor in his executive department; he shall transmit one copy of the laws and journals of the Legislative Assembly, within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each year, to the President of the United States; and two copies of the laws to the President of the Senate and to the Speaker of the House of Representatives, to be deposited in the libraries of Congress; and in case of the death, removal, resignation or absence ofo shall act as Gov- the Governor from the Territory, the Secretary shall be, and ernor, when. he is hereby authorized and required;, to execute and perform ORGANIC ACT. 39 all the powers and duties of the Governor during such vacancy or absence, or until another Governor shall be duly appointed and qualified to fill such vacancy. SEC. 22. And be it further enacted, That the legislative Legislative powpower and authority of said Territory shall be vested in the Governor and Legislative Assembly. The Legislative Assemtbly shall consist of a (Council and HIouse of Representatives. The Council shall consist of thirteen members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The House of Representatives shall, at its first session, consist of twenty-six memnbers, possessing the same qualifications as prescribed for members of the Council, and whose term of service shall continue one year. The number of representatives may be increased by the Legislative Assembly, from time to time, in proportion to the increase of qualified voters; Provided, That the whole number shall never exceed thirty-nine. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts, for the election of the council and representatives, giving to each section of the Territory representation in the ratio of its qualified voters, as nearly as may be. And the members of the Council and House of Representatives shall reside in, and be inhabitants of, the district, or county or counties, for which they may be elected, respectively. Previous to the first election, the Governor shall cause a census, or enumeration of the inhabitants and qualified Censusto e tavoters of the several counties and districts of the Territory, to be taken by such persons, and in such mode as the Governor shall designate and appoint; and the person so appointed shall receive a reasonable compensation therefor. And the first election shall be held at such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the Governor shall appoint and direct; and he shall, at the same time, declare the number of members of the Council and HIouse of Representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each of said council 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 Representatives, shall be declared by the Governor to be duly elected 40 ORGANIC ACT. Vacancies, &c. members of said House; Provided, That in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the Legislative Assembly, the Governor shall order a new election; and the persons thus elected to the Legislative Assembly, shall meet at such place and on such day as the Governor shall apTime of holding point; but thereafter, the time, place and manner of holding elections there-;after. and conducting all elections by the people, and the apportioning the representation in the several counties or districts, to the Council and House of Representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of,~o~gth of ses- the Legislative Assembly; Provided, That no session, in any one year, shall exceed the term of forty days, except the first session, which may continue sixty days. SEC. 23. And be it further enacted, That every free white Qualifications of male inhabitant above the age of twenty-one years, who shall voters. be an actual resident of said Territory, and shall possess the Eliogiility to qualifications hereinafter prescribed, shall be entitled to vote at the first election, and shall be eligible to any office within the said Territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the Legislative Assembly; Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States and those who shall have declared on oath their intention to become such, and shall have taken an oath to support the Constitution of the United Army officers States, and the provisions of this Act; Andprovidedfurther, and soldiers not allowed to vote. That no officer, soldier, seaman or marine, or other person in the army,or navy of the United States, or attached to troops in the service of the United States, shall be allowed to vote or hold office in said Territory, by reason of being on service therein. SEC. 24. And be it further enacted, That the legislative Legislative pow- power of the Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this Act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; Non-residents nor shall the lands or other property of non-residents be taxed not to be taxed higher than res. higher than the lands or other property of residents. Every bill which shall have passed the Council and House of Repre ORGANIC ACT. 41 sentatives of the said Territory, shall, before it becomes a law, be presented to the Governor of the Territory; if he approve, qovrlors sh:ll he shall sign it; but if not, he shall return it with his objec- veto power. tions to the House in which it originated, who shall enter the objections 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, to be entered on the Journal of each House, respectively. If any bill shall not be returned by the Governor within three 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 Assembly, by adjournment, prevent its return, in which case it shall not be a law. SEC. 25. And be it further enacted, That all township, dis- Township, district and county trict and county officers, not herein otherwise provided for, oficrs, how shall be appointed or elected, as the case may be, in such manner as shall be provided by the Governor and Legislative Assembly of the Territory of Kansas. The Governor shall nominate, and by and with the advice and consent of the Legislative Council, appoint all officers not herein otherwise provided for; and in the first instance the Governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the Legislative Assembly; and shall lay off the necessary districts for members of the Council and House of,Representatives, and all other officers. SEC. 26. And be it further enacted, That no member of the Mernmers of the Legislature shall Legislative Assembly -shall hold, or be appointed to any office ot hold ofice, which shall have been created, or the salary or emoluments of which shall have been increased while he was a member, during the term for which he was elected, and for one year after the expiration of such term, but this restriction shall not be applicable to members of the first Legislative Assembly; and no person holding a commission or appointment under the United States, except postmasters, shall be a member of the Legislative Assembly, or shall hold any office under the government of said Territory. SeC. 27. And be it further enacted, That the judicial power Judicial power, of said~ Territory shall be vested in a Supreme Court, District 42 ORGANIC ACT. Courts, Probate Courts and in Justices of the Peace. The Supreme Court shall consist of a Chief Justice and two Associate Justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said Territory, annually, and thbey shall hold their offices during the period of four years, and until their successors shall be appointed and qualified. The said Territory shall be divided.riIts.l - into three judicial districts, and a District Court shall be held in each of said districts by one of the justices of the Supreme Court, at such times and places as may be prescribed by law; and the said judges shall, after their appointment, respectively reside in the district which shall be assigned them. The jurisJurisdiction diction of the several courts herein provided for, both appellate and original, and that of'the Probate Courts and of Justices of the Justices of the Peace, shall be as limited by law; Provided, That Justices of the Peace shall not have jurisdiction of any matter in controversy when the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said Supreme and District Courts, respectively, shall possess chancery as well as common law jurisdiction. Each District Court, or the judge thereof, Cler-ks. shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Writs of error, bills of exception and appeals shall be allowed in all cases from the final decisions of said District Courts, to the Supreme Court, under such regulations as may be prescribed by law; but in no case removed to the Supreme Court, shall trial by jury be allowed in said court. The Supreme Court or the justices thereof, shall appoint its own clerk, and every clerk shall hold his office at the pleasure of Write of error the court for which he shall have been appointed. Writs of and appeals. error and appeals from the final decisions of said Supreme Court shall be allowed, and may be taken 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 or affirmation of either party or other competent witness, shall exceed one thousand Appeals in ca- dollars; except only that in all cases involving title to slaves, sos involving titie to slaves. the said writs of error or appeals shall be allowed and decided by said Supreme Court, without regard to the value of the matter, property or title in controversy; and except, also, that a writ of error or appeal shall also be allowed to the Supreme ORGANIC ACT. 43 Court of the United States, from the decision of the said Supreme Court created by this act, or of any judge thereof, or of the District Courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of Appeals in Hapersonal freedom; Provided, That nothing herein contained shall be construed to apply to or effect the provisions of the Not to effect the provisions of the "Act respecting fugitives from justice, and persons escaping Act ivrespecting b fugitives. from the services of their masters," approved February twelfth, seventeen hundred and ninety-three, and the " Act to amend and supplementary to said act," approved September eighteenth, eighteen hundred and fifty; and each of the said District Courts shall have and exercise the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States; and the said Supreme and District Courts of the said Territory and the respective judges thereof, shall and may grant writs of habeas corpus in all cases in which the Habels Corpus. same are granted by the judges of the United States in the District of Columbia; and the first six days of every term of said courts or so much thereof as may be necessary, shall be appropriated to the trial of causes arising under the said Constitution and laws, and writs of error and appeal in all such cases shall be made to the Supreme Court of said Territory, the same as in other cases. The said clerk shall receive the same fees in all such cases which the clerks of the District Courts of Utah Territory now receive for similar services. SEC. 28. And be it further enacted, That the provisions of Fugitive slave law to be in the act entitled " An act respecting fugitives from justice, and forc be i persons escaping from the service of their masters," approved February twelfth, seventeen hundred and ninety-three, and the provisions of the act entitled " An act to amend, and supplementary to the aforesaid act," approved September eighteenth, eighteen hundred and fifty, be and the same are hereby declared to extend to and to be in full force within the limits of the said Territory of Kansas. SEC. 29. And be itfiurther enacted, That there shall be ap- United States pointed an attorney for said Territory, who shall continue in ey. office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall receive the same fees and salary as the attorney of the United States for the present Territory of Utah. There u. s. Marshal. shall also be a Marshal for the Territory, appointed, who shall 44 ORGANIC ACT. hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President, and who shall execute all processes issuing from the said courts when exercising their jurisdiction as circuit and district courts of the United States; he shall perform the duties, be subject to the same regulations and penalties,and be entitled to the same fees as the Marshal of the District Court of the United States for the present Territory of Utah, and shall, in addition, be paid two hundred dollars annually, as a compensation for extra services. Territorial offi- SEC. 30. And be it further enacted, That the Governor, r, how ap- Secretary, Chief Justice and Associate Justices, Attorney and pointed and qualified. Marshal, shall be nominated, and by and with the advice and consent of the Senate, appointed by the President of the United States. The Governor and Secretary to be appointed as aforeOaths of office. said, shall, before they act as such, respectively take an oath or affirmation before the district judge or some justice of the peace in the limits of said Territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the Chief Justice or some Associate Justice of the Supreme Court of the United States, to support the Constitution of the United States, and faithfully to discharge the duties of their respective offices, which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificate shall be received and recorded, by the said Secretary, among the executive proceedings; and the Chief Justice and Associate Justices, and all other civil officers in said Territory, before they act as such, shall take a like oath or affirmation before the said Governor or Secretary, or some judge or justice of the peace of the Territory, who may be duly commissioned and qualified, which said oath or affirmation shall be certified and transmitted by the person taking the same, to the Secretary, to be by him recorded as aforesaid; and, afterwards, the like oath or affirmation shall be taken, certified and recorded, in such manner and form as Compenation ofmay be prescribed by law. The Governor shall receive an offlcers. annual salary of two thousand five hundred dollars. The Chief Justice and Associate Justices shall receive an annual salary of two thousand dollars. The Secretary shall receive an annual salary of two thousand dollars. The said salaries shall be paid quarter-yearly, from the dates of the respective appointments, at the treasury of the United States; but no ORGANIC ACT. 45 such payment shall be made until said officers shall have entered upon the duties of their respective appointments. The members of the Legislative Assembly shall be entitled to re- ComPensation of members of legceive three dollars& each per day, during their attendance atislature, clerks, the sessions thereof, and three dollars each for every twenty miles travel in going to and returning from the said sessions, estimated according to the nearest usually traveled route; and an additional allowance of three dollars shall be paid to the presiding officer of each House, for each day he shall so preside. And a chief clerk, one assistant clerk, a sergeant-atarms and door-keeper, may be chosen for each House; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day during the session of the Legislative Assembly; but no other officers shall be paid by the United States; Provided, That there shall be but one ses- session annal sion of the Legislature annually, unless, on an extraordinary Go,venor may occasion, the Governor shall think proper to call the Legisla- ture together on ture together. There shall be appropriated annually, the nary oCcrson. usual sum to be expended by the Governor, to defray the con- by Congresst, defray Territo.. tingcnt expenses of the Territory, including the salary of a rial expenses clerk of the executive department; and there shall also be appropriated annually, a sufficient sum to be expended by the Secretary of the Territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the Legislative Assembly, the printing of the laws and other incidental expenses; and the Governor and the Secretary of the Territory shall, in the disbursement of all moneys in- Exenditu res, trusted to them, be governed solely by the instructions of the Secretary of the Treasury of the United States, and shall, semi-annually, account to the said Secretary for the manner in which the aforesaid moneys shall have been expended; and no expenditure shall be made by said Legislative Assembly for objects not specially authorized by the acts of Congress making the appropriations, nor beyond the sums thus appropriated for such objects. SEC. 31. And be itfurther enacted, That the seat of gov- Seat of COoer, ment. ernment of said Territory is hereby located temporarily at Fort Leavenworth; and that such portions of the public buildings as may not be actually used and needed for military purposes, may be occupied and used under the direction of the Governor and Legislative Assembly, for such public purposes as may be required under the provisions of this act. 46 ORGANIC ACT. Delegates to SEC. 32. And be it fuuther enacted, That a delegate to the House of Representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the Legislative Assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other Territories of the United States to the said House of Representatives; but the delegate first elected shall hold his seat only during the term of Congress to which Electionof, &c. he shall be elected. The first election shall be held at such time and places, and be conducted in such manner as the Governor shall appoint and direct; and at all subsequent elections, the times, places and manner of holding the elections, shall be prescribed by law. The person having the greatest number of votes shall be declared, by the Governor, to be duly elected, and a certificate thereof shall be given accordingly. wto tkeiffend That the Constitution, and all laws of the United States which this Territory. are not locally inapplicable, shall have the same force and effect within the said Territory of Kansas as elsewhere within omasOes under the United States, except the eighth section of the act preparAct of admission atory to the admission of Missouri into the Union, approved of Mjissouri in- i t apoe operative and March sixth, eighteen hundred and twenty, which being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the compromise measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefromrr, but to leave the people thereof perfectly free to form and People to regu laetPheitrdoe~.ge regulate their domestic institutions in their own way, subject tic institutions in their own only to the Constitution of the United States; Provided, That way. ]nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of the sixth of March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery. Aoppropriations SEC. 33. And be itfurther enacted, That there shall hereingandlibrary. after be appropriated, as has been customary for the Territorial governments, a sufficient amounrt, to be expended under the direction of the said Governor of the Territory of Kansas, not exceeding the sums heretofore appropriated for similar objects, for the erection of suitable public buildings at the seat of government, and for the purchase of a library, to be kept at the ORGANIC ACT. 47 seat of government for the use of the Governor, Legislative Assembly, Judges of the Supreme Court, Secretary, Marshal and Attorney of said Territory, and such other persons, under such regulations, as shall be prescribed by law. SEC. 34. And be itfurther enacted, That when the lands in Survey of lands. the said Territory shall be surveyed under the direction of the aidnth"ity-six government of the United States, preparatory to bringing the Schools. same into market, sections numbered sixteen and thirty-six in each township in said Territory, shall be, and the same are hereby reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same. SEC. 35. And be it further enacted, That until otherwise Judicial DiSt provided'by law, the Governor of said Territory may define the judicial districts of said Territory, and assign the judges who may be appointed for said Territory to the several districts; and also appoint the times and places for holding courts in the several counties or subdivisions in each of said judicial districts, by proclamation, to be issued by him; but the Legislative Assembly, at their first or any subsequent session, may organize, alter or modify such judicial districts, and assign the judges and alter the times and places of holding the courts, as to them shall seemn proper and convenient. SEC. 36. And be it further enacted, That all officers to be officers required to give bonds appointed by the President, by and with the advice and con- and security. sent of the Senate. for the Territory of Kansas, who, by virtue of the provisions of any law now existing, or which may be enacted during the present Congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security at such time and place, and in such manner as the Secretary of the Treasury may prescribe. SEC. 37. And be it further enacted, That all treaties, lawsTreaties, laws,.. &c.,to beenand other engagements made by the government of the United forced. States with the Indian tribes inhabiting the Territories embraced within this act, shall be faithfully and rigidly observed, notwithstanding any thing contained in this act; and that the existing agencies and superintendencies of said Indians be continued with the same powers and duties which are now prescribed by law, except that the President of the United States may, at his discretion, change the location of the office of Superintendent. Approved, May 30, 1854. CONSTITUTION OF THE STATE OF KANSAS. ADOPTED AT WYANDOTT, JULY 29, 1859. ORDINANCE. )Lands of the WHEREAS, The Government of the United States is the proUnited States. prietor of a large portion of lands included in the limits of the State-of Kansas, as defined by the Constitution; and WHEREAS, The State of Kansas will possess the right to tax such lands for the purpose of government, and for other purposes; now, therefore, Be it ordained by the People of Kansas: Rtights to tax That the right of the State of Kansas to tax such lands, is such lands relinquished. relinquished forever, and the State of Kansas will not interfere with the title of the United States to such lands, nor with any regulation of Congress in relation thereto, nor tax nonresidents higher than residents; provided, always, that the following conditions be agreed to by Congress: School Sections. SECTION 1. Sections numbered sixteen and thirty-six, in each [See Act of Admission, prop.l. township in the State, including Indian Reservations and Trust Lands, shall be granted to the State for the exclusive use of common Schools; and when either of said sections, or any part thereof; has been disposed of; other lands of equal value, as nearly contiguous thereto as possible, shall be substituted therefor. University SEc. 2. That seventy-two sections of land shall be granted to [See as above, prop.2, page 76.] the State for the erection and maintenance of a State University. Lands for pub- SEC. 3. That thirty-six sections shall be granted to the State lie buildings. rs, pa gbove, for the erection of public buildings. prop.S, page 76.]' STATE OF KANSAS. 49 SEC.. 4. That seventy-two sections shall be granted to the itor benevsolent State for the erection and maintenance of charitable and benevolent institutions. SEC. 5. That all salt springs, not exceeding twelve in num- Sa,lt spring antd ber, with six sections of land adjacent to each, together with all [seei At of Admines, with the lands necessary for their full use, shall bepage77.] granted to the State for works of public improvement. SEC. 6. That five per centum of the proceeds of the public Five per centunt lands in Kansas, disposed of after the admission of lKansas public lands for into the Union, shall be paid to the State for a fund, the in- pSrop., page 77 come of which shall be used for the support of the common schools. SEC. 7. That the five hundred thousand acres of land tou ThderOA, ocfr4t which the State is entitled under the Act of Congress entitled Sept., 184 "An Act to appropriate the proceeds of the sales of Public Lands and grant Pre-emption rights," approved September 4th, 1841, shall be granted to the State for the support of comlmon schools. SEC. 8. That the lands hereinbefore mentioned shall be se- lManer of selevtion. lected in such manner as may be prescribed by law; such se- [See act of Adlections to be subject to the approval of the Commissioner of the General Land Office of the United States. PREAMBLE. WE, the people of Kansas, grateful to Almighty God for our Preamble. civil and religious privileges, in order to insure the full enjoymlent of our rights as American citizens, do ordain and establish this Constitution of the State of Kansas, with the following boundaries, to-wit: "Beginning at a point on the western Boundaries A [See Act of Adboundary of the State of Missouri, where the thirty-seventh m ~ission,c 1se parallel of north latitude crosses the same; thence running west on said parallel to the twenty-fifth meridian of longitude west from Washington; thence north on said meridian to the fortieth parallel of north latitude; thence east on said parallel to the Western boundary of the State of Missouri; thence south with the western boundary of said State to the place of beginning, BILL OF RIGHTS. SECTION 1. All men are possessed of equal and inalienable Equalrlights. natural rights, among which are life, liberty and the pursuit of happiness. 50 CONSTITUTION OF THE Pitecrnt i pthe SEC. 2. All political power is inherent in the people, and all people. free governments are founded on their authority, and are instiSpecial privi- tuted for their equal protection and benefit. No special privieges. leges or immunities shall ever be granted by the Legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency. People ~may s- SEC. 3. The people have the right to assemble, in a peacesemble, petition, etc. able manner, to consult for their common good, to instruct their representatives, and to petition the government, or any department thereof, for the redress of grievances. May bear arms. SEC. 4. The people have the right to bear arms for their deNo standing armies. fense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power. Trial by jury. SEC. 5. The right of trial by jury shall be inviolate. Slavery prohibi- SEC. 6. There shall be no slavery in this State; and no inted. voluntary servitude, except for the punishment of crime, whereof the party shall have been duly convicted. Rights of con- SEC. 7. The right to worship God according to the dictates science. of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of, or interference with the rights of conscience be permitted, nor any preference be given by law to any No religious test religious establishment or mode of worship. No religious test nor property qualification, or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on aecount of religious belief Writ of habeas SEC. 8. The right to the writ of habeas corpus shall not be corpus. suspended, unless the public safety requires it in case of invasion -or rebellion. 1esoespt bailabcpi SEC. 9. All persons shall be bailable by sufficient sureties, tl offenses. except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. ccullsed may ap- SEC. 10. In all prosecutions, the accused shall be allowed to pear and defend, peG-r ad,appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy Trial by jury. public trial by an impartial jury of the county or district in STATE OF KANSAS. 51 which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense. SEC. 11. The liberty of the press shall be inviolate; and all pLibrty of the persons may freely speak, write or publish their sentiments on Libel. all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted. SEC. 12. No person shall be transported from the State for Nopersontransported from any offense committed within the same, and no conviction in State, etc. the State shall work a corruption of blood or forfeiture of estate. SEC. 13. Treason shall consist only in levying war against Treason. the State, adhering to its enemies, or giving them aid and comfort. No person shall be convicted of treason unless on the evidence of two witnesses to the overt act, or confession in open court. SEC. 14. No soldier shall, in time of peace, be quartered in Soldiers shali not be quartered any house without the consent of the occupant, nor in time of where. war, except as prescribed by law. SEC. 15. The right of the people to be secure in their per- Search and seizsons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or property to be seized. SEC. 16. No person shall be imprisoned for debt except in No pridpon-t case of fraud. SEC. 17. No distinction shall ever be made between citizens Nodisettnctioi and aliens in reference to the purchase, enjoyment or descent andaiens. of property. SEC. 18. All persons, for injuries suffered in person, reputa- Justiceadministion or property, shall have remedy by due course of law, delay. and justice administered without delay. SEC. 19. No hereditary emoluments, honors or privileges, No hereditary emoluments, etc. shall ever be granted or conferred by the State. SEC. 20. This enumeration of rights shall not be construed All powers not delegated remain to impair or deny others retained by the people; and all pow- with the people. ers not herein delegated remain with the people. 5;2 CONSTITUTION OF THE ARTICLE 1. EXECUTIVE. ertcumente ande SECTION 1. The executive department shall consist of a how chosen. Governor, Lieutenant-Governor, Secretary of State, Auditor, Treasurer, Attorney-General and Superintendent of Public Instruction; who shall be chosen by the electors of the State Term of ofice. at the time and place of voting for members of the Legislature, and shall hold their offices for the term of two years from the second Monday in January, next after their election, and until their successors are elected and qualified. Mlectionreturns. SEC. 2. Until otherwise provided by law, an abstract of the returns of every election, for the officers named in the foregoing section, shall be sealed up and transmitted, by the Clerk State Board of of the Board of Canvassers of the several counties, to the Sec. Canvassers and retary of State, who, with the Lieutenant-Governor and Attheir duties. - w torney-General, shall constitute a Board of State Canvassers, whose duty it shall be to meet at the State Capital on the second Tuesday of December succeeding each election for State officers, and canvass the vote for such officers and proclaim the — ncIasleoafti, allresult; but in case any two or more have an equal and the "choose. highest number of votes, the Legislature shall, by joint ballot, choose one of said persons so having an equal and the highest number of votes for said office. The Governor SEC. 3. The supreme executive power of the State shall be supreme executire. vested in a Governor, who shall see that the laws are faithfully executed. Et may require SEC. 4. He may require information in writing from the ofinformation in vriting. ficers of the executive department, upon any subject relating to their respective duties. May convene Legislay conventure in SEC. 5He may, on extraordinary occasions, convene the Legislature in extra session, Legislature by proclamation, and shall, at the commencement etc. Annual WMe. of every session, communicate, in writing, such information as sage. he may possess in reference to the condition of the State, and recommend such measures as he may deem expedient. May adjourn SEC. 6. In case of disagreement between the two houses in Legislature, when. respect to the time of adjournment, he may adjourn the Legislature to such time as he may think proper, not beyond its regular meeting. Pardoning pow- SEC. 7. The pardoning power shall be vested in the Governor, under regulations and restrictions prescribed by law. Seal of the State. SEC. 8. There shall be a seal of the State, which shall be kept STATE OF KANSAS. 53 by the Governor, and used by him officially; and which shall be the great seal of Kansas. SEC. 9. All commissions shall be issued in the name of the Commissions isState of Kansas; signed by the Governor, countersigned by the Secretary of State, and sealed with the great seal. SEC. 10. No member of Congress, or officer of the State or Who exclucled from holding ofof the United States, shall hold the office of Governor, except fie of Governor. as herein provided. SEC. 11. In case of the death, impeachment, resignation, Vacancy. removal or other disability of the Governor, the power and duties of the office for the residue of the term, or until the disability shall be removed, shall devolve upon the President of the Senate. SEc. 12. The Lieutenant-Governor shall be President of the Lieutenant-Gov. ernor President Senate, and shall vote only when the Senate is equally divided. of Senate, etc. The Senate shall choose a President, pro tempore, to preside in President, pro temore. case of his absence or impeachment, or when he shall hold the office of Governor. SEC. 13. If the Lieutenant Governor, while holding the office Vacancy. of Governor, shall be impeached or displaced, or shall resign or die, or otherwise become incapable of performing the duties of the office, the President of the Senate shall act as Governor until the vacancy is filled or the disability removed; and if the President of the Senate, for any of the above causes, shall be rendered incapable of performing the duties pertaining to the office of Governor, the same shall devolve upon the Speaker of the House of Representatives. SEC. 14. Should either the Secretary of State, Auditor, Vacancyinother executive offices, Treasurer, Attorney General or Superintendent of Public In- how filled. struction, become incapable of performing the duties of his office, for any of the causes specified in the thirteenth section of this article, the Governor shall fill the vacancy until the disability is removed, or a successor is elected and qualified. Every such vacancy shall be filled by election, at the first general election that occurs more than thirty days after it shall have happened; and the person chosen shall hold the office for the unexpired term. SEC. 15. The officers mentioned in this article shall, at stated Compensation of times, receive for their services a compensation to be established by law, which shall neither be increased nor diminished during the period for which they shall have been elected. 54 CONSTITUTION OF THE Officers to re- SEC. 16. The officers of the executive department, and of all port, when. public State institutions, shall, at least ten days preceding each regular session of the Legislature, severally report to the Governor, who shall transmit such reports to the Legislature. ARTICLE II. LEGISLATIVE. Legislative SECTION 1. The legislative power of the State shall be vested power. in a House of Representatives and Senate. First House of SEC. 2. The first House of Representatives under this ConRepresentatives and Senate. stitution shall consist of seventy-five members, who shall be chosen for one year. The first Senate shall consist of twentyfive members, who shall be chosen for two years. After the first election, the number of Senators and members of the House of Representatives, shall be regulated by law; but shall never exceed one hundred Representatives and thirty-three Senators. Compensation of SEC. 3. The members of the Legislature shall receive as commembers. pensation for their services, the sum of three dollars for each day's actual service at any regular or special session, and fifteen Mileage. cents for each mile traveled by the usual route in going to and returning from the place of meeting; but such compensation shall not in the aggregate exceed the sum of two hundred and forty dollars for each member, as per diem allowance for the first session held under this Constitution, nor more than one hundred and fifty dollars for each session thereafter, nor more than ninety dollars for any special session. Who may be SEC. 4. No person shall be a member of the Legislature who members. is not at the time of his election a qualified voter of, and resident in, the county or district for which he is elected. Same. SEC. 5. No member of Congress or officer of the United States shall be eligible to a seat in the Legislature. If any person, after his election to the Legislature, be elected to Congress or elected or appointed to any office under the United States, his acceptance thereof shall vacate his seat. Same. SEC. 6. No person convicted of embezzlement or misuse of the public funds, shall have a seat in the Legislature. Officers to take SEC. 7. All State officers, before entering upon their respecoas hs. tive duties, shall take and subscribe an oath or affirmation to support the Constitution of the United States and the Constitution of this State, and faithfully to discharge the duties of their respective offices. STATE OF KANSAS. 55 SEC. 8. A majority of each house shall constitute a quorum. Quorum. Each house shall establish its own rules, and shall be judge of iules. To judge of qualificationts the elections, returns and qualifications of its own members. of its members. SEC. 9. All vacancies occurring in either house, shall beVacancies. filled for the unexpired term by election. SEC. 10. Each house shall keep and publish a journal of its Journals to be proceedings. The yeas and nays shall be taken and entered immediately on the journal, upon the final passage of everyr ina, pass~etof bill or joint resolution. Neither house, without the consent yeas and nays. of the other, shall adjourn for more than two days, Sundays Adjornments. excepted. SEC. 11. Any member of either house shall have the right Melmbers may to protest against any bill or resolution; and such protest shall, protest. without delay or alteration, be entered on the journal. SEC. 12. All bills shall originate in the House of Representa- All bills originate in House. tives, and be subject to amendment or rejection by the Senate. SEC. 13. A majority of all the members elected to eachMajority of members elected house, voting in the affirmative, shall be necessary to pass any necessary to pass bill. bill or joint resolution. SEC. 14. Every bill and joint resolution passed by the House witis two idays,d of Representatives and Senate, shall, within two days thereafter, by presidng officers. be signed by the presiding officers, and presented to the Governor; if he approve it, he shall sign it; but if not, he shall return it to the House of Representatives, which shall enter the objections at large upon its journal and proceed to reconsider If bill be vetoed, the same. If, after such reconsideration, two-thirds of the two-thirds inay pass. members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the Senate, by which it shall likewise be reconsidered, and if approved by two-thirds of all the members elected, it shall become a law. But in all such cases, the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted,) after it shall have been presented to the Governor, it shall become a law in like manner as if he had signed it, unless the Legislature, by its adjournment, prevent its return, in which case it shall not become a law. SEC. 15. Every bill shall be read on three separate days in Bills to be read three separate each house, unless in case of emergency. Two-thirds of the dayshouse, where such bill is pending, may, if deemed expedient, May suspend rules. suspend the rules; but the reading of the bill by section, on its Bills must be read by sections, final passage, shall in no case be dispensed with. on final pasage. 15 6 CONSTITUTION OF THE No bill shall SEC. 16. No bill shall contain more than one subject, which thanone snbject. shall be clearly expressed in its title, and no law shall be revived tlas. or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed. Laws shall be SEC. 17. All laws of a general nature shall have a uniform uniform. operation throughout the State; and in all cases where a genNo special laws. eral law can be made applicable, no special law shall be enacted. rivorces by Dis- SEC. 18. All power to grant divorces is vested in the District Court. trict Courts, subject to regulation by law. Acts take effent, SEC. 19. The Legislature shall prescribe the time when its when. acts shall be in force, and-shall provide for the speedy publication of the same; and no law of a general nature, shall be in lectionm or force until the same be published. It shall have the power to appointment of officers, and fill- rovide for the election or appointment of all officers, and the ing of vacancies.rovI a n ofies t filling of all vacancies not otherwise provided for in this Constitution. Enacting clause SEC. 20. The enacting clause of all laws shall be, "Be it of laws. enacted by the Legislature of the State of Kansas;" and no law shall be enacted except by bill. Powers ofcounty SEC. 21. The Legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation and administration as it shall deem expedient. Privilees of SEC. 22. For any speech or debate in either house, the memmembers. bers shall not be questioned elsewhere. No member of the Legislature shall be subject to arrest-except for felony or breach of the peace-in going to or returning from the place of meeting, or during the continuance of the session; neither shall he be subject to the service of any civil process during the session, nor for fifteen days previous to its commencement. eNotditinction SEC. 23. The Legislature, in providing for the formation and between males scand females in regulation of schools, shall make no distinction between the sions. rights of males and females. Money drawn, SEC 24. No money shall be drawn from the treasury except and appropria- tions how made. n pursuance of a sp cific appropriation made by law; and no appropriation shall be for a longer term than one year. Sessions of the SFC. 25. All sessions of the Legislature shall be held at the Legislature. State Capital, and all regular sessions shall commence annually, on the second Tuesday of January.'ensls, SEC. 26. The Legislature shall provide for taking an enumeration of the inhabitants of the State, at least, once in ten years. The first enumeration shall be taken in A. D. 1865. STATE OF KANSAS. 57 SEC. 27. The House of Representatives shall have the sole House has so' power to impeach. All impeachments shall be tried by thePeh ete Trials by Senate. Senate, and when sitting for that purpose, the Senators shall take an oath to do justice according to the law and the evidence. No person shall be convicted without the concurrence of twothirds of the Senators elected.SEC. 28. The Governor and all other officers under this Con- Officers subect to impeachment. stitution, shall be subject to impeachment for any misdemeanor Punishlent. in office; but judgment in all such cases shall not be extended further than to removal from office, or disqualification to hold any office of profit, honor or trust, under this Constitution; but the party, whether convicted or acquitted, shall be liable to indictment, trial, judgment and punishment, according to law. ARTICLE IIL JUDICIATL. SECTION 1. The judicial power of the State shall be vested Judicial pouee's. in a Supreme Court, District Courts, Probate Courts, Justices of the Peace, and such other Courts, inferior to the Supreme Court, as may be provided by law; and all courts of record Courts of record shall have a seal, to be used in the authentication of all process. to have seal. SEC. 2. The Supreme Court shall consist of one Chief Jus- Supreme Court, tice and two Associate Justices, (a majority of whom shall constitute a quorum,) who shall be elected by the electors of the State at large, and whose term of office, after the first, shall be Election, nld six years. At the first election, a Chief Justice shall be chosen term of office. tor six years, one Associate Justice for four years, and one for two years. SEC. 3. The Supreme Court shall have original jurisdiction Jurisdiction of in proceedings in quo warranta, mandamus and habeas corpus; Supreme Court. and such appellate jurisdiction -as may be provided by law. It Terms of shall hold one term, each year, at the seat of government, and such other terms at such places as may be provided by law, and its jurisdiction shall be co-extensive with the State. SEc. 4. There shall be appointed, by the Justices of the Su- Reporter aud Clerk shall be preme Court, a reporter and clerk of said Court, who shall hold appointed. their offices two years, and whose duties shall be prescribed by law. SEC. 5. The State shall be divided into five judicial districts, Five district in each of which there shall be elected, by the electors thereof, Judges shall be a District Judge, who shall hold his office for the term of four Term of. "as8 CONSTITUTION OF THE years. District Courts shall be held at such times and places as may be provided by law. Jurisdiction. SEC. 6. The District Courts shall have such jurisdiction in their respective districts as may be provided by law. Clerk elected. SEC. 7. There shall be elected, in each organized county, a clerk of the District Court, who shall hold his office two years, and whose duties shall be prescribed by law. Probate Court, SE. 8. There shall be a Probate Court in each county, which juriediction of. shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors and persons of unsound minds, as may be prescribed by law, and shall have jurisdiction in cases of habeas corpus. This court shall consist l] odge, how ele~Led, etc. of one judge, who shall be elected by the qualified voters of the county and hold his office two years. He shall be his own Shall be his own lerick. clerk, and shall hold court at such times and receive for compensation such fees, as may be prescribed by law. Justices of the SEC. 9. The Justices of the Peace shall be elected in each Peace. Terms of office and pow- township, whose term of office shall be two years, and whose ers. powers and duties shall be prescribed by law. The Justices of the Peace may be increased in any township by law. Appeals to Dis- SEC. 10. All appeals from Probate Courts and Justices of trict Court. the Peace, shall be to the District Court. All judicial offi- SEC. 11. All the judicial officers provided for by this article, cers to be elected at first election, shall be elected at the first election under this Constitution, and Shall reside shall reside in their respective townships, counties or districts where. Vacancies filled during their respective terms of office. In case of vacancy in by Governor, any judicial office, it shall be filled, by appointment of the Governor, until the next regular election, that shall occur more than thirty days after such vacancy shall have happened. Hold office until SEC. 12. All judicial officers shall hold their offices until successor is qual ified. their successors shall have been qualified. Compensation of SEC. 13. The Justices of' the Supreme Court and Judges of Judges shall not net Cu at s reev be less than $I,- the District Court shall, at stated times, receive for their serv500 each year. ices such compensation as may be provided by law, which shall not be increased during their respective term of office; Provided, Such compensation shall not be less than fifteen hundred dollars to each Justice or Judge each year, and such Shall receive no Justices or Judges shall receive no fees or perquisites nor hold fees and hold no other office. any other office of profit or trust under the authority of the State or the United States during the term of office for which Shall not prac-said Justices and Judges shall be elected, nor practice law in tice law in this of t courts the State in fce State. any of the courts of the State during their continuance in office. STATE OF KANSAS. 59 SEC. 14, Provisions may be made by law for the increase of Judicial districts the number of judicial districts whenever two-thirds of the by the Legislature. members of each House shall concur. Such districts shall be formed of compact territory and bounded by county lines, and such increase shall not vacate the office of any Judge. SEC. 15. Justices of the Supreme Court and Judges of the Judges may be removed by resDistrict Courts may be removed from office by resolution of oltion of both Houses. both Houses, if two-thirds of the members of each House concur; but no such removal shall.be made except upon complaint, the substance of which shall be entered upon the journal, nor until the party charged shall have had notice and opportunity to be heard. SEC. 16 The several Justices and Judges of the courts of lMay have Jurisdiction at Chamrecord in this State, shall have such jurisdiction at chambers bers. as may be provided by law. SEC. 17. The style of all process shall be "' The State ofstyle of process shall be "The Kansas," and all prosecutions shall be carried on in the name State of Kanof the State. SEC. 18. Until otherwise provided by law, the first district First district. shall consist of the counties of Wyandott, Leavenworth, Jefferson and Jackson. The second district shall consist of the Second. counties of Atchison, Doniphan, Brown, Nemaha, Marshall and Washington. The third district shall consist of the coun-Third. ties of Pottawattomie, Riley, Clay, Dickinson, Davis, Wabaunsee and Shawnee. The fourth district shall consist of the Fourth. counties of Douglas, Johnson, Lykins, Franklin, Anderson, Linn, Bourbon and Allen. The fifth district shall consist of Fifth. the counties of Osage, Coffey, Woodson, Greenwood, Madison, Breckinridge, Morris, Chase, Butler and Hunter. SEC. 19. New or unorganized counties shall, by law, be at- New and unornt~~~ X-~~ I X ~~ ~ ganized counties tached, for judicial purposes, to the most convenient judiciaha ll be attached. districts. SEC. 20. Provisions shall be made by law, for the selection, Pro tern. Judge. by the bar, of apro tern. Judge of the District Court, when ed. the Judge is absent or otherwise unable or disqualified to sit in any case. ARTICLE IV. ELECTIONS. SECTION 1. All elections by the people shall be by ballot, Elections-how by the people, and all elections by the Legislature shall be viva voce. and how by the SEC. 2. General elections shall be held annually, on the Legislature. Tuesday succeeding the first Monday in November. Township tNovs hall be in 60 CONSTITUTION OF THE township elec- elections shall be held on the first Tuesday of April, until tions in April, Until. otherwise provided by law. ARTICLE V. SUFFRAGE. Qualifications of SECTION 1. Every white male person, of twenty-one years elector. and upward, belonging to either of the following classes — who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offiers to vote, at leastethirty days next preceding such election-shall be deemed a qualified elector:. First-Citizens of the United States. Second-Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization. Who shall not SEC. 2. No person under guardianship, non compos mentis, otor insane, shall be qualified to vote, nor any person convicted of treason or felony, unless restored to civil rights, Same. SEC. 3. No soldier, seaman or marine, in the army or navy of the United States, or of their allies, shall be deemed to have acquired a residence in the State in consequence of being stationed within the same; nor shall any soldier, seaman or marine have the right to vote. Laws shall be SEC. 4. The Legislature shall pass such laws as may be necpassed to prove i, who are entitled essary for ascertaining, by proper proofs, the citizens who shall to vote. be entitled to the right of suffrage hereby established. Duelists disqual- SEc. 5. Every person who shall give or accept a challenge fied from hold.. g office. to fight a duel, or who shall, knowingly, carry to another person such challenge, or shall go out of the State to fight a duel, shall be ineligible to any office of trust or profit. Bribery a dis- SEC. 6. Every person who shall have given or offered a qaliication bribe to procure his election, shall be disqualified from holding office during the term for which he may have been elected. Electors privi- SEC. 7. Electors, during their attendance at elections, and leged from ar- rest, in going to and returning therefrom, shall be privileged from arrest in all cases except treason, felony or breach of the peace. ARTICLE VI. EDUCATION. State Superin- SECTION 1. The State Superintendent of Public Instruction tendent to have charge of funds shall have the general supervision of the common school fuds and school itnterests f the State, and perfn such other rests. and educational interests of the State, and perform such other STATE OF KANSAS. 61 duties as may be prescribed byv law. A Superintendent ofC~untysuperinPublic Instruction shall be elected in each county, whose term elected; duties of office shall be two years, and whose duty and compensation tion to be pre scribed by law. shall be prescribed by law. SEC. 2. The Legislature shall encourage the promotion of Legislature to establish comintellectual, moral, scientific and agricultural improvement, by monschools and establishing a uniform system of common schools, and schools higher grade. of higher grade, embracing normal, preparatory, collegiate, and university departments. SEC. 3. The proceeds of all lands that have been, or may be, Tll Pshool lando, granted by the United States to the State, for the support ofnand of thohe50,schools, and the five hundred thousand acres of land granted of es, 41, atn to the new State, under an act of Congress distributing the halle be a perproceeds of public lands among the several States of the fd. school Union, approved September 4, A. D. 1841, and all estates of persons dying without heir or will, and such per cent. as may be granted by Congress, on the sale of lands in this State, shall be the common property of the State, and shall be a perpetual school fund, which shall not be diminished, but the inte- It shall not be rest of which, together with all the rents of the lands, and such diminished, et. other means as the Legislature may provide, by tax or otherwise, shall be inviolably appropriated to the support of common schools. SEC. 4. The income of the State school funds shall be dis- The interest of bursed annually, by order of the State Superintendent, to the shall be disbursed by State Suseveral County Treasurers, and thence to the Treasurers of the perinteudent. several school districts, in equitable proportion to the number of children and youth resident therein, between the ages of five and twenty-one years; Provided, That no school district, in which a common School has not been maintained at least three months in each year, shall be'entitled to receive any portion of such funds. SEC. 5. The school lands shall not be sold unless such sale Lands not to be sold, unless at:shall be authorized by a vote of the people at a general elec- thorized by the tion; but, subject to revaluation every five years, they may be p leased for any number of years not exceeding twenty-five, at a May be leased. rate established by law. SEc. 6. All money which shall be paid by persons as an Moneyfrommilitary exempequivalent for exemption from military duty; the clear pro- itoifromfines, and from estrays ceeds of estrays, ownership of which shall ves' in the taker shallD be applied to support of up; and the proceeds of fines for any breach of the penal laws, common school. shall be exclusively applied in the several counties in which 5 62 CONSTITUTION OF THE the money is paid or fines collected, to the support of common schools. Asity shall be Univers- SEC. 7. Provisions shall be made by law for the establishtablished at ment, at some eligible and central point, of a State Universome eligible central point. sity, for the promotion of literature, and the arts and sciences, Funds for its t support. including a normal and agricultural department. All funds arising from the sale or rents of lands granted by the United States to the State for the support of a State University, and all other grants, donations or bequests, either by the State or by individuals, for such purpose, shall remain a perpetual fund, to be called the " University Fund;" the interest of which shall be appropriated to the support of the State University. No religious sectl SEC. 8. No religious sect or sects shall ever control any part of any of these Of the Common School or University Funds of the State. funds. Board of Corn- SEC. 9. The State Superintendent of Public Instruction, Secmissioners for management retary of State and Attorney General shall constitute a Board and investment of funds. of Commissioners, for the management and investment of the School Funds. Any two of said Commissioners shall be a quorum. ARTICLE VII. PUBLIC INSTITUTIONS, Benevolent in- SECTION 1. Institutions for the benefit of the insane, blind, stitutions to be supportedbythe and deaf and dumb, and such other benevolent institutions as State. t the public good may require, shall be fostered and supported by the State, subject to such regulations as may be prescribed by law. Trustees of such benevolent institutions, as may be Trustees of shall hereafter created, shall be appointed by the Governor, by and be appointed by thea Goernor. with the advice and consent of the Senate; and upon all nominations made by the Governor, the question shall be taken in yeas and nays, and entered upon the journal. SEC. 2. A Penitentiary shall be established, the directors of Penitentiary, which shall be appointed or elected, as prescribed by law. Govacnernor to fill SE9. 3. The Governor shall fill any vacancy that may occur oes aforoeaid, in the offices aforesaid, until the next session of the Legislature, and until a successor to his appointee shall be confirmed and qualified. Counties to pro. SEC. 4. The respective counties of the State shall provide, vide for support of aged and in- as may be prescribed by law, for those inhabitants, who, by firm. reason of age, infirmity, or other misfortune, may have claims upon sympathy and aid of society. STATE OF KANSAS. 63 ARTICLE VIII. MILITIA. SECTION 1. The Militia shall be composed of all able-bodied Mdftiwhctpo white male citizens between the ages of twenty-one and fortyfive years, except such as are exempted by the laws of the United States, or of this State; but all citizens, of any religious denomination whatever, who, from scruples of conscience, may be averse to bearing arms, shall be exempt there- Exemption. from, upon such conditions as may be prescribed by law. SEC. 2. The Legislature shall provide for organizing, equip- The Legislaturo ping and disciplining the Militia in such manner as it shall organiing, etc. deem expedient, not incompatible with the laws of the United States. SEC. 3. Officers of the Militiashall be elected or appointed, elected. and commissioned in such manner as may be provided by law. SEC. 4. The Governor shall be Commander-in-Chief, and The Governor shall have power to call out the militia to execute the laws, to mander-in-Chief suppress insurrection, and to repel invasion. ARTICLE IX. COUNTY AND TOWNSHIP ORGANIZATION. SECTION 1. The Legislature shall provide for organizing new The Legtslature shall provide for counties, locating county seats, and changing county lines; nrw counaties, and for locating and no county seat shall be changed without the consent of a cunty seats oany majority of the electors of the county; nor any county organ- line ized, or the lines of any county changed so as to* include an Size of counties. area of less than four hundred and thirty-two square miles. SEC. 2. The Legislature shall provide for such county and couwnty a Township offitewnship officers as may be necessary. cers. SEC. 3. All county officers shall hold their offices for the term County officers shall hold office of two years, and until their successors shall be qualified; but how long. no person shall hold the office of Sheriff or County Treasurer for more than two consecutive terms. SEC. 4. Township officers, except Justices of the Peace, shall Township Officers shall hold hold their offices one year from the Monday next succeeding office how long. their election, and until their successors are qualified. SEC. 5. All county and township officers may be removed,arehow. from office, in such manner and for such cause as shall be prescribed by law. ARTICLE X. APPORTIONMENT. SECTION 1. In the future apportionment of the State, each Each county to have one repreorganized county shall have at least one Representative; andsentative. 64L CONSTITUTION OF THE each county shall be divided into as many districts as it has representatives. tirst Legisla- SEC. 2. It shall be the duty of the first Legislature to make,portionment. an apportionment, based upon the census ordered by the last Legislative Assembly of the Territory; and a new apportionNew one every ment shall be made in the year 1866, and every five years therefive years. after, based upon the census of the preceding year. Apportionment SEc. 3. Until there shall be a new apportionment, the State until Legislature acts. shall be divided into election districts; and the Representatives and Senators shall be apportioned among the several districts as follows, viz: First District-Doniphai county-four Representatives, two Senators. Second District-Atchison and Brown counties-six Representatives, two Senators. Third District-Nemaha, Marshall and Washington counties -two Representatives, one Senator. Fourth District-Clay, Riley and Pottawattamie counties — four Representatives, one Senator. Fifth District-Dickinson, Davis and Waubaunsee counties -three Representatives, one Senator. Sixth -District-Shawnee, Jackson and Jefferson countieseight Representatives, two Senators. Seventh District-Leavenworth county —nine Representatives, three Senators. Eighth _District-Douglas, Johnson and Wyandott counties — thirteen Representatives, four Senators. Ninth District-Lykins, Linn and Bourbon counties —nine Representatives, three Senators. Tenth.District-Allen, Anderson and Franklin counties — six Representatives, two Senators. Eleventh District-Woodson and Madison counties-two Representatives, one Senator. Twelfth District-Coffee, Osage and Breckinridge countiessix Representatives, two Senators. Thirteenth District-Morris, Chase and Butler counties-two Representatives, one senator. Fourteenth District-Arrapahoe, Godfrey, Greenwood, Hunter, Wilson, Dorn and McGee counties-one Representative. STATE OF KANSAS. 65 ARTICLE XI. FINANCE AND TAXATION. Taxation shall SECTION 1. The Legislature shall provide for a uniform and be uniform. equal rate of assessment and taxation; but all property used Exemption. exclusively for State, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation. SEC. 2. The Legislature shall provide for taxing the notesto b, taxed'. and bills discounted or purchased, moneys loaned, and other property, effects, or dues of every description, (without deduction) of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to that imposed upon the property of individuals. Revenue proviSEC. 3. The Legislature shall provide, each year, for raising ded each year. revenue sufficient to defray the current expenses of the State. Notaxwithout SEC. 4. No tax shall be levied except in pursuance of a law, lawful object. which shall distinctly state the object of the same; to which object only such tax shall be applied. Publicdebts SEC. 5. For the purpose of defraying extraordinary expenses, hodw contracted, and making public improvements, the State may contract pub- tent. lic debts; but such debts shall never, in the aggregate, exceed one million dollars, except as hereinafter provided. Every such debt shall be authorized by law for some purpose specified therein, and the vote of a majority of all the members elected to each House, to be taken by the yeas and nays, shall be necessary to Such law shall the passage of such law; and every such law shall provide for provide for an annual tax to be levying an annual tax sufficient to pay the annual interest of levied, to payinterest annually, such debt, and the principal thereof, when it shall become due; and principal when it shall and shall specifically appropriate the proceeds of such taxes to become due. the payment of such principal and interest; and such appro- Proceeds shl priation shall not be repealed, nor the taxes postponed or di- b ppoirfiatlly minished, until the interest and principal of such debt shall have been wholly paid. SEC. 6. No debt shall be contracted by the State, except as No other debts, except by direct herein provided, unless the proposed law for creating such debt vote of people. shall first be submitted to a direct vote of the electors of the State, at some general election; and if such proposed law shall be ratified by a majority of all the votes cast at such general election, then it shall be the duty of the Legislature next after such election to enact such law and create such debt, subject to 66 CONSITUTION OF THE all the provisions and restrictions provided in the preceding section of this article. May borrow money to repel SEC. 7. The State may borrow money to repel invasion, supapplied eclu-e press insurrection, or defend the State in time of war; but the sively to that purpose. money thus raised shall be applied exclusively to the object for which the loan was authorized, or to the repayment of the debt thereby created. Internal im- SEC. 8. The State shall never be a party in carrying on any provemcnts. works of internal improvement. ARTICLE XII. CORPORATIONS. No special corporate poweor SECTION 1. The Legislature shall pass no special act confershall be conferred. ring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed. Deati from cor- SEC. 2. Dues from corporations shall be secured by individed, how. ual liability of the stockholders to an additional amount equal to the stock owned by each stockholder; and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes. Trustees of religious corpora. SEC. 3. The title to all property of religious corporations tions. shall vest in trustees, whose election shall be by the members of such corporations. rano right of way SEC. 4. No right of way shall be appropriated to the use of full compensa- any corporation, until full compensation therefor be first made tion be made. in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.,eneral law for SEC. 5. Provision shall be made by general law for the organof cities, towns, ization of cities, towns and villages; and their power of taxa&c. Powers reitricted. tion, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power. The term'-Cor- SEC. 6. The term corporation, as used in this article, shall poration." include all associations and joint stock companies having powers and privileges not possessed by individuals and partnerships; and all corporations may sue and be sued in their corporate name. STATE OF KANSAS. 67 ARTICLE XIII. BANKS AND CURRENCY. SECTION 1. No bank-shall be established otherwise than under Banking laws shall be general. a general banking law. SEC. 2. All banking laws shall require, as collateral security Shifetiratedefor the redemption of the circulating notes of any bank organ- tockith the ized under their provisions, a deposit with the Auditor of State of the interest paying bonds of the several States or of the United States, at the cash rates of the New York stock exchange, to an amount equal to the amount of circulating notes which such bank shall be authorized to issue, and a cash deposit in its vaults of ten per cent. of such amount of circulating notes; and the Auditor shall register and countersign no more circulating bills of any bank than the cash value of such bonds when deposited. SEC. 3. Whenever the bonds pledged as collateral security When security depreciates in for the circulation of any bank shall depreciate in value, the value, additional security shall be Auditor of State shall require additional security, or curtail the required. circulation of such bank, to such extent as will continue the security unimpaired. SEC. 4. All circulating notes shall be redeemable in theNotes redeemable in money of money of the United States. Holders of such notes shall bethe U. S. entitled, in case of the insolvency of such banks, to preference eItiled of pote of payment over all other creditors. ference. SEC. 5. The State shall not be a stockholder in any banking State not to be a stockholder. institution. SEC. 6. All banks shall be required to keep offices and offi- Banking offices shall be at concers for the issue and redemption of their circulation, at a con- venient places. venient place within the State, to be named on the circulating notes issued by such bank. SEC. 7. No banking institution shall issue circulating notes No notes less than five dollars. of a less denomination than five dollars. SEC. 8. No banking law shall be in force until the same shall No banking law in force until aphave been submitted to a vote of the electors of the State at proved by the people. some general election, and approved by a majority of all the votes cast at such election. SEC. 9. Any banking law may be amended or repealed. Amended or repealed. ARTICLE XIV. AMENDMENTS. SECTION 1. Propositions for the amendment of this Consti- Amendmeuts to the Constitutution may be made by either branch of the Legislature; and tion, how made. if two-thirds of all the members elected to each House shall 68 CONSTITUTION OF THE concur therein, such proposed amendments, together with the yeas and nays, shall be entered on the journal; and the Secretary of State shall cause the same to be published in at least one newspaper in each county of the State where a newspaper is published, for three months preceding the next election for Representatives, at which time the same shall be submitted to the electors for their approval or rejection; and if a majority of the electors voting on said amendments, at said election, shall adopt the amendments, the same shall become a part of the Constitution. When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately; and not more than three propositions to amend shall be submitted at the same election. Convention for SEC. 2. Whenever two-thirds of the members elected to each the revision of this Constitu- branch of the Legislature shall think it necessary to call a Convention to revise, amend or change this Constitution, they shall recommend to the electors to vote at the next election of members to the Legislature, for or against a convention; and if a majority of all the electors voting at such election shall have voted for a convention, the Legislature shall, at the next session, provide for calling the same. ARTICLE XV. MISCELLANEOUS. Officers not herein providedfor, SECTION I. All officers whose election or appointment is not how chosen. otherwise provided for, shall be chosen or appointed as may be prescribed by law. Tenure of office, not otherwise SEC. 2. The tenure of any office not herein provided for may provided for. be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment; but the Legislature shall not create any office the tenure of which shall be longer than four years. Lotteries pro. hibited. SEC. 3. Lotteries and the sale of lottery tickets are forever prohibited. lub]ic printing. SEC. 4. All public printing shall be let, on contract, to the lowest responsible bidder, by such executive officers, and in such manner, as shall be prescribed by law. Statement ofre- SEC. 5. An accurate and detailed statement of the receipts ceipts and expenditures of and expenditures of the public moneys, and the several amounts public moneys. paid, to whom, and on what account, shall be published, as prep scribed by law. STATE OF KANSAS. 69 SEC. 6. The Legislature shall provide for the protection of Rightsofwomen the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children. SEC. 7. The Legislature may reduce the salaries of officers, Saaie reduced, who shall neglect the performance of any legal duty. SEc. 8. The temporary seat of government is hereby located Temporary seat at the city of Topeka, county of Shawnee. The first Legislature under this Constitution shall provide by law for submitting the question of the permanent location of the Capital to a popular vote, and a majority of all the votes cast at some general election shall be necessary for such location. SEC. 9. A homestead to the extent of one hundred and sixty Homestead exacres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, the provisions of this Proviso. section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife. SCHEDULE. SECTION 1. That no inconvenience may arise from the change chlitg from a Territorial to a from a Territorial government to a permanent State govern- stat goverment, it is declared by this Constitution that all suits, rights, Suits, &c., shall actions, prosecutions, recognizances, contracts, judgments and survive claims, both as respects individuals and bodies corporate, shall continue as if no change had taken place. SEC. 2. All fines, penalties and forfeitures, owing to the Pnalties,bonds, &c., shall not be Territory of Kansas, or any county, shall inure to the use of discharged. the State or county. All bonds executed to the Territory, or any officer thereof, in his official capacity, shall pass over to the Governor, or other officers of the State or county, and their successors in office, for the use of the State or county, or by him or them to be respectively assigned over to the use of those concerned, as the case may be. 70 CONSTITUTION OF THE Officers of the SEC. 3. The Governor, Secretary and Judges, and all other Territory to continue till officers, both civil and military, under the Territorial government, shall continue in the exercise of the duties of their respective departments until the said officers are superseded under the authority of this Constitution. Laws to con- SEC. 4. All laws and parts of laws in force in the Territory, tinue in force. at the time of the acceptance of this Constitution by Congress, not inconsistent with this Constitution, shall continue and remain in full force until they expire, or shall be repealed. Governor'sseal. SEC. 5. The Governor shall use his private seal until a State seal is provided. Offices kept at SEC. 6. The Governor, Secretary of State, Auditor of State, seat of government. Treasurer of State, Attorney General and Superintendent of Public Instruction, shall keep their respective offices at the seat of government. Court records SEC. 7. All records, documents, books, papers, moneys and and documents, howdisposed of. vouchers belonging and pertaining to the several Territorial Courts, and offices, and to the several districts and county offices, at the date of the admission of this State into the Union, shall be disposed of in such manner as may be prescribed by law. Suits and other SEC. 8. All suits, pleas, plaints, and other proceedings pendproceedings prosecued tot ing in any court of record, or Justice's court, may be prosecuted to final judgment and execution; and all appeals, writs of error, certiorari, injunctions, or other proceedings whatever, may progress and be carried on as if this Constitution had not been adopted, and the Legislature shall direct the mode in which such suits, pleas, plaints, prosecutions and other proceedings, and all papers, records, books and documents connected therewith, may be removed to the courts established by this Constitution. Election fer rati- SEC. 9. For the purpose of taking the vote of the electors of fication or rejection. this Territory for the ratification or rejection of this Constitution, an election shall be held in the several voting precincts in this Territory, on the first Tuesday in October, A. D. 1859. Howl to vote. SEC. 10. Each elector shall express his assent or dissent by voting a written or printed ballot labelled: "For the Constitution." or, "Against the Constitution." If amaJorityof SEC. 11. If a majority of all the votes cast at such election votes in its favor hn lefction to be shall be in favor of the Constitution, then there shall be an eleccounty officers. tion held in the several voting precincts on the first Tuesday in December, A. D. 1859, for the election of members of the first STATE OF KANSAS. 71 Legislature, of all State, District and County officers provided for in this Constitution, and for a Representative in Congress. SEC. 12. All persons having the qualifications of electors,Persotnsqualified to vote. according to the provisions of this Constitution, at the date of each of said elections, and who shall have been duly registered according to the provisions of the registry law of this Territory, and none others, shall be entitled to vote at each of said elections. SEC. 13. The persons who may be Judges of the several Judges of ele'voting precincts of this Territory, at the date of the respective elections in this schedule provided for, shall be the Judges of the respective elections herein provided for. SEC. 14. The said Judges of election, before entering upon Judgesto tak the duties of their office, shall take and subscribe an oath faithfully to discharge their duties as such. They shall appoint two Clerks of election, who shall be sworn by one of said Judges clerks. faithfully to discharge their duties as such. In the event of a Vacancy. vacancy in the Board of Judges, the same shall be filled by the electors present. SEC. 15. At each of the elections provided for in this sched- Poll open, when ule, the polls shall be opened between the hours of nine and ten o'clock, A. M., and closed at sunset. SEC. 16. The tribunals transacting county business of the County tribunals to furnish several counties, shall cause to be furnished to the Boards of pollbooks. Judges, in their respective counties, two poll books for each election hereinbefore provided for, upon which the Clerks shall inscribe the name of every person who may vote at the said elections. SEC. 17. After closing the polls at each of the elections pro- Judges to count votes and make vided for in this schedule, the Judges shall proceed to count the two lists. votes cast, and designate the persons or objects for which they were cast, and shall make two correct tally lists of the same. SEC. 18. Each of the Boards of Judges shall safely keep one eep one list, and transmit tho poll book and tally list, and the ballots cast at each election;other to county tribunal. and shall, within ten daysafter such election, cause the other poll book and tally list to be transmitted, by the hands of a sworn officer, to the Clerk of the Board transacting county business in their respective counties, or to which the county may be attached for municipal purposes. SEC. 19. The tribunals transacting county business shall as- County tribunal semble at the county seats of their respective counties on the second Tuesday after each of the elections provided for in this sthedule. and shall canvass the votes cast at the elections held 72 CONSTITUTION OF THE in the several precincts in their respective counties, and of the counties attached for municipal purposes. They shall hold in safe keeping the poll books and tally lists of said elections, and shall, within ten days thereafter, transmit, by the hands of a sworn officer, to the President of this Convention, at the city of Shall translit a Topeka, a certified transcript of the same, showing the number transcript to the president of this of votes cast for each person or object voted for at each of the conven tion' at iTopIeka. several precincts in their respective counties, and in the counties attached for municipal purposes, separately. Board of State SEC. 20. The Governor of the Territory, and the President callnvassers and their duties. and Secretary of this Convention, shall constitute a Board of State Canvassers, any two -of whom shall be a quorum; and who shall, on the fourth Monday after each of the elections provided for in this schedule, assemble at said city of Topeka, and proceed to open and canvass the votes cast at the several precincts in the different counties of the Territory, and declare the result; and shall immediately issue certificates of election to all persons (if any) thus elected. Canvasersato SEC. 21. Said Board of State Canvassers shall issue their proclaim result. proclamation, not less than twenty days next preceding each of the elections provided for in this schedule. Said proclamation shall contain an announcement of the several elections; the qualifications of electors; the manner of conducting said elections and of making the returns thereof, as in this Constitution provided, and shall publish said proclamation in one newspaper in each of the counties of the Territory in which a newspaper may be then published. State canvassers SEC. 22. The Board of State Canvassers shall provide for to provide for transmission of the transmission of authenticated copies of the Constitution to autihenticated i col)ies to. S. the President of the United States, the President of the Senate auithorities. and Speaker of the House of Representatives. When State ad- SEC. 23. Upon official information having been by him remitted into Utnion, Governor ceived of the admission of Kansas into the Union as a State, it to proclaim same, etc. shall be the duty of the Governor elect under the Constitution, to proclaim the same, and to convene the Legislature, and do all things else necessary to the complete and active organization of the State government. First 1iegisla- SEC. 24. The first Legislature shall have no power to make ture to make no change in county any changes in county lines. Eectores may SEC. 25. At the election to be held for the ratification or vote for or against the rejection of this Constitution, each elector shall be permitted homestead proVision. to vote on the Homestead provision contained in the article on STATE OF KANSAS. 73 "Miscellaneous, by depositing a ballot inscribed "For the Homestead," or " Against the Homestead;" and if a majority of all the votes cast at said election shall be against said provision, then it shall be stricken from the Constitution. RESOLUTIONS. Resolved, That the Congress of the United States is hereby Congress lequested to gralt requested, upon the application of Kansas for admission into 1lnds for railthe Union, to pass an act granting to the State forty-five hundred thousand acres of land to aid in the construction of railroads and other internal improvements. Resolved, That Congress be fuirther requested to pass an act Alo efor tof appropriating fifty thousand acres of land for the improvement Ka"'"sa Rive" of the Kansas river from its mouth to Fort Riley. Resolved, That Congress be further requested to pass an act Swamp lands. granting all swamp lands within the State for the benefit of Common Schools. Resolved, That Congress be further requested to pass an act Congresrequested to mlsake appropriating five hundred thousand dollars, or, in lieu thereof, a grant for the five hundred thousand acres of land, for the payment of iheclaims. claims awarded to citizens of Kansas by the Claim Commissioners appointed by the Governor and Legislature of Kansas, under an act of the Territorial Legislature, passed February 7th, 1859. Resolved, That the Legislature shall make provision for the Legislatlre to make provision sale or disposal of the lands granted to the State in aid of in- for disposal of ternal improvements and for other purposes, subject to the same rights of pre-emption to the settlers thereon as are now allowed by law to settlers on the public lands. Resolved, That it is the desire of the people of Kansas to be admitted into the Union with this Constitution. Resolved, That Congress be further requested to assume the Debt of the Territory. debt of this Territory. Done in Convention, at Wyandott, this 29th day of July, A. D. 1859. JAMES M. WINCHELL, President Of the Kansas Constitutional Convention and Dtlegatefrom Osage County. JOHN A. MARTIN, Secretary. 74 CONSTITUTION OF THE STATE OF KANSAS. ROBT. GRAHAM, SAML. A. KINGMAN, JOHN JAMES INGALLS, ROBT. J. PORTER, CALEB MAY, JAMES BLOOD, J. A. MIDDLETON, S. O. THACHER, S. D. HOUSTON, EDWIN STOKES, LUTHER R. PALMER, P. H. TOWNSEND, JOHN TAYLOR BURRIS, WM. HUTCHINSON, JOHN P. GREER, N. C. BLOOD, JOHN RITCHEY, EDMUND G. Ross, H. D. PRESTON, JAS. HANWAY, BENJAMIN F. SIMPSON, ALLEN CROCKER, JAMES M. ARTHUR, SAML. E. HOFFMAN, JOSIAH LAMB, JAMES A. SIGNOR, WM. MCCULLOCH, GEO. H. LILLIE, JAS. G. BLUNT, R. L. WILLIAMS, J. C. BURNETT. W. P. DUTTON, WM. R. GaRIFFITH. AMENDMENT. Section seven (7,) Article thirteen (13,) is amended so as to read as follows: SECTION 7. No banking institution shall issue circulating notes of a less denomination than one dollar. The above amendment was approved by the electors of the State, at the general election held on Tuesday following the first Monday in November, A. D. 1861. AN ACT FOR THE ADMISSION OF KANSAS INTO THE UNION. WHEREAS, The people of the Territory of Kansas, by their Constiu:ti2o representatives in oConvention assembled, at Wyandott, in said 1869 Territory, on the twenty-ninth day of July, one thousand eight hundred and fifty-nine, did form for themselves a Constitution atified Oct. 4 and State Government, republican in form, which was ratified 189. and adopted by the people at an election held for that purpose, on Tuesday, the fourth day of October, one thousand eight hundred and fifty-nine, and the said Convention has, in their name and behalf, asked the Congress of the United States to admit the said Territory into the Union as a State, on an equal footing with the other States: Therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled. SECTION 1. That the State of Kansas shall be, and is hereby Kansas admitted declared to be, one of the United States of America, and ad-with otherstates mitted into the Union on: an equal footing with the original States in all respects whatever. And the said State shall consist of all the territory included within the following bounda-Boundaries. See constitution: ries, to wit:: beginning at a point on the western boundary of reamble. the State of Missouri, where the thirty-seventh parallel of north latitude crosses the same; thence west on said parallel to the twenty-fifth meridian of longitude west from Washington; thence north on said meridian to the fortieth parallel of latitude; thence east on said parallel to the western boundary of the State of Missouri; thence south with the western boundary 76 ACT OF ADMISSION. of said State to the place of beginning; Provided, That notihing contained in the said Constitution respecting the boundary of said State shall be construed to impair the rights of person or property now pertaining to the Indians of said Territory, so Indian title shall long as such rights shall remain unextinguished by treaty benot be disturbed. g shall remain U "' tween the United States and such Indians, or to include any territory which, by treaty with such Indian tribe, is not, without the consent of such tribe, to be included 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 the State of Kansas, until said tribe shall signify their assent to the President of the United States to be included within said state, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to make if this act had never passed. Shall have one representative in SEC. 2. And be it further enacted, That until the next genCong~ress. eral apportionment of representatives, the State of Kansas shall be entitled to one Representative in the House of Representatives of the United States. This ait shall SEC. 3. And be it further enacted, That nothing in this act n o'rdiaanainor shall be construed as an assent by Congress to all or any of the resolutions propositions or claims contained in the ordinance of said Constitution of the people of Kansas, or in the resolutions thereto attached; but: the following propositions are hereby offered to the said people of Kansas for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States, and upon the said State of Kansas, to wit: Propositions of First-That sections numbered sixteen and thirty-six, in ectsons 16 and every township of public lands in said state, and where either 36hgroolsnted of said sections or any part thereof has been sold or otherwise [See constitution of Kansas, Ord, been disposed of, other lands, equivalent thereto and as consec. 1.] tiguous as may be, shall be granted to said state for the use of schools. Seventy-two see-' Second —That seventy-two sections of land shall be set apart tions granted for Ss erasitbvy.e, and reserved for the use and support of a State University, to see. 24] be selected by the Governor of said State, subject to the approval of the Commissioner of the General Land Office, and to be appropriated and applied in such manner as the Legislature of said state may prescribe for the purpose aforesaid, but for no other purpose. ACT OF ADMISSION. 77 Third-That- ten entire sections of land, to be selected by Ten sections the Governor of said State,-:in legal subdivisions, shall be tebui;dings. -gr, _...[ sections adjboin-ve, grantiguous ath e said State for the, purpose -of complesing the f eo 3b] onepublic buldings, or r th ereadmision ofsaid S tate, rs atthe seat eof to n be used o disposed of on such termsoconditions and regulatigovern men the Legisnder lathre sh f thdirect PrLegisld, there nof. spring or-land, theright wsprings i aid State, -not exceed-'pings, ihi gal or individuals, or whichwmayhereafter be co rmed sior ading twelve in number, with six Sections, adj- or a. judged to l anydindiidualn or indiviuals shall, by this articleed contiguous as maye to each, shall be granted t saiid State. for c lyits use, the same toate, whlectd bshall the Governor bCongeress after hin oneof year after the admission sadeductid State: en s eleted bove, to be-used disposeof makingsuch tepublic roads aonditionS and regulations as the Legislar purposes, adir tProvided, Legislature no shalt'dire spring or inand, the right hereoft the onvested iof the any indivted - tatesl or indivsaid alsr whichma her ieafterfe bre with the pr ry adjudged to any regulatindividons al or individuals shall necessby for this articleng be granted to said Stateil't purchasers thereof. Sith- That fi the per centuate of shall alnever tax the lands or And tht the ~a of proeeds of t lying. within.said State' which shall-"be: sold by'ongress after public lands howeveradm, ssiat n of scase any of the herinion, raf ter d edu cting ali ede t botve tha expenses incident to thesamelf Kansasbe pre-id; o said stte -be face to ordis for the-purpose of making public roads and internal improvements, or for other purposes, as the Legislature shall; Provided, That the foregoing propositihe quantity sified in othions are pctn are on the condition that the people of Kansas shall provided, all on the laws ord f the United States, which arble nithout tof the United wpplicaStates, ~hat said~ st'ate shall nerer interfere with the primaryl andsof theU.s. disposall havofe the oil withi n the same bywithe United state as inor with any regulations Congress!Y~y:.find necessary for securing the title in; said s0il to:.Onae fide purchasers thereof. Sixther stAnd that th e said sa te shall nev hertax the lands or And that the ted a Judicial Districtproperty of the UnitedState i n said tates, Provided ta the alnds or... property of the' however, That'-in case' any of the lands herein granted to the Dnited tatest. Stat-'e: of Kansas:have —heretofir'ev been:' eonfirm'~do io:the:Terie- O T ofnsas, pretory of Kansas fo'r th pUrposes spe'ifiedd id thiV' c4t the gm0uht nanco of the U. S so confirmedd; shalli b'e deducted from the quantity spebifiedtin thisact., - - SEC. 4. And be it further enacted, That from and after the admission of the State of Kansas, as hereinbefore provided, all the laws of the United States, which are not locally inapplicable shall have the same force and effect within that state as in other states of the Union; and the said state is hereby consti-Constituted 3, tuted a Judicial District of the United States, within which a dicit dituted 78 ACT OF ADMISSION. district court, with like powers- and jurisdiction as the district U.S. dist. judg, court of the United States for the district of Minnesota, shall attorney, and marshal. aCom-be established; the judge, attorney and marshal of the United peusation of, &e. States, for the said district of Kansas, shall reside within the same, and shall be entitled to the same compensation as the Ojudge, attorney and marshal of the district of Minnesota; and Of cases in sup. - - - - - coufrt ofothe U. in all cases of appeal or writ of error heretofore prosecuted, S. from courts of K. T. and now pending in the Supreme Court of the United States upon any record from the Supreme Court of Kansas Territory, the mandate of execution or order of'further proceedings shall be directed by the Supreme Court of the United States to the district of Kansas,:or to the Supreme Court of the State of Kansas; as the nature of such appeal or writ of error may require; and each of those courts shall be the successor of the Supreme Court of Kansas Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process therein. SEC. 5. And be it further enacted, That the judge of the toermt8fDIthldt district court for the district of Kansas shall hold two regular terms of said court annually, at the seat of government of the said state, to commence on the second Mondays of April and October in each year. Approved 29th of January, 1861. DEPARTMENT OF STATE,? Washington, Jan. 31, 1861. I hereby certify that the foregoing is a true and correct copy of the original, on file in this Department. W. HUNTER, Chief Clerk. -SECRETARY OF STATE'S OFFICEt June 20, 1861. I hereby certify that the above is a true and correct copy of the original bill admitting Kansas into the Union, on file in my office. J. W. ROBINSON, Secretary of State. LAWS OF KANSAS. CHAPTER I. (Acts of 1860, Chapter I.) AN ACT Relating to Acknowledgments, Oaths and Depositions. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. The county clerks of the respective counties incounty clerks this Territory are hereby authorized to take acknowledgments teaekto kowlof deeds and other instruments of writing, administer oaths[See C~onveyLancCO and take depositions. SEC. 2. This act to take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER II. (Acts of 1862.) AN ACT to confirm acknowledgments taken before M. D. Abbott and T. H. Baker, acting as Justices of the Peace, in the: town of Irving, M3arshal county, State of Kansas.: - Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the acknowledgment of instruments affect- Acknowledg. ing the title of real estate made before T. H. Baker and M. D. fore T. H. Baker and M. D. AbAbbott, acting as Justices of the Peace, in the town of Irving, bott confirmed. Marshal County, under the authority of an act entitled "An Act to incorporate the town of Irving, approved February 24th, 1860, are hereby confirmed, and made binding to all intents and purposes, the same as though the said T. H. Baker and 80 ACTIONS. M. D. Abbott had been commissioned as Justices of the Peace under the general laws of Kansas. SEC. 2. This act to take effect, and be in force, from and after its passage. Approved, February 22d, 1862, CHAPTER III. (Acts of 1859, Chapter I.) AN ACT authorizing Actions to be brought in certain Cases. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Action to sur- SECTION 1. That whenever the death of a person shall be vive death of party, where caused by wrongful act, neglect or default, and the act, neglect death is caused. by wrongful act, neglect or de- or default is such as could, [if death had not ensued,] have enfault. titled the party injured, to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall. be liable to an action for damages, notwithstanding. the. death of the person injured, and although the death shall have been caused under such circumstances as amount, in law, to murder in the first or second dlegree, or manslaughter. Such action shall SEC. 2. Every such action shall be brought by and in the be brought in the name of the name of the personal representatives of such deceased person, personal representative of the and the amount recovered in every such action shall be for the deceased, for the benefit of widow, if there be one, and next of or next of kin. ecuv t i kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate; and in every such action the jury may give such damages as they may deem fair and just, not exceeding Actone must be ten thousand dollars: Provided, That every such action shall commenced in. two years. be commenced within two years after the death of such deceased person. SEC. 3. This Act shall take effect and be in force from and after the first day of June next. Approved February 8, 1859. ACTS -REPEALED. 81 CHAPTER IV. (Acts of 1862.) AN ACT to repeal certain Acts therein named. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the following acts and parts of acts be and The following acts repealed. the same are hereby repealed, to-wit: Acts passed in 1857; Acts passed in Chapter 2: "An Act for the prevention and punishment of Election frauds. Election Frauds." Approved December 16, 1857. Acts passed in 1808: Chapter 8: "An Act for the organi- Acts passed in 1858. zation, supervision and maintenance of Common Schools." common Schools. Approved February 12,[1858. Chapter 26: " An Act to provide for Contested Elections," Contested elec. tions. approved February 12, 1858. Chapter 47: "An Act to provide for the taking effect ofstatutes. Statutes, approved Feb. 9, 1858. Also, Chapter 52, "An Act to organize and regulate the Militia Militia. of the Territory of Kansas; " became a law Feb. 12, 1858. Chapter 55, "An Act entitled an act locating the Peniten- Penitentiary. tiary," approved Feb. 8, 1858. Chapter 56, "An Act supplemental to an act entitled, an Supplemental to act locating the Penitentiary," approved Feb. 12, 1858. above. Chapter 59, " An Act to establish the office of Land Dis- Land District trict Recorder," approved Feb. 9, 1858. Recorder. Chapter 66, "An Act to provide for the Assessment and Taxes. Collection of Taxes," approved Feb. 12, 1858. Chapter 67, " An Act to create a Territorial Board of Equal- Board of Equalization. ization," approved Feb. 12, 1858. Chapter 71, "An Act relating to Town and Township Offi- Township onlcers, their Election, and Duties of their Office," approved Feb. g2, 1858. Acts passed in 1859: Chapter 41, -"An Act for the relief of cts passed in suitors in Probate Courts," approved Feb. 11, 1859. Probate Courts. Chapter 65, "An Act regulating Elections," approved Feb. Elections. 4, 1859. Chapter 66,'An Act regulating Contested Elections,' ap- Contested electiuns. proved Feb. 11, 1859. Chapter 68, "An Act regulating the Fees of Officers, Jurors, Fees. and Witnesses," approved Feb. 11, 1859. Chapter 70, "An Act to prevent the firing of Woods, Fires. Marshes, and Prairies," approved Feb. 9, 1859. Chapter 77, "AnI Act to provide for locating and working Highways. Highways," approved Feb. 4, 1859. 82 ACTS REPEALED. Interest. Chapter 81, "An Act regulating the Interest of Money," approved Feb. 11, 1859. Library. Chapter 88, "An Act for the re-organization of the Library of the Territory, and to provide for the appointment of Librarian," approved Feb. 11, 1859. aliens. Chapter 90, Section 23 of "An Act securing a Lien to Mechanics and others," approved Feb. 3, 1859. Military. Chapter 95, " An Act to authorize the formation of Volunteer Military Companies," approved Feb. 11, 1859. Common Chapter 116, "An Act to provide for the organization, Schools. supervision, and maintenance of Common Schools," approved Feb. 11, 1859. Supplementary Chapter 117, "An Act supplementary to an act to provide to above. for the organization, supervision, and maintenance of Common Schools," approved Feb. 11, 1859. Sheriffs. Chapter 119, " An Act to authorize the Sheriffs of the several counties to serve certain Processes," approved February 9, 1859. Common law. Chapter 121, All of "An Act adopting the Common Law Authentication as the rule of action in this Territory, and regulating the anof Statutes, &c. thentication of Statutes, and the taking effect thereof," apException. proved Feb. 11, 1859, except Sections one and two of said act. Contagions. Chapter 123, "An Act to prevent the destruction of Stock by contagious diseases," approved Feb. 1, 1859. Treaeulrer. Chapter 127, "An Act providing for appointment of Territorial Treasurer," approved Feb. 11, 1859. School lands. Chapter 129, "An Act to punish trespass on School Lands," approved Feb. 10, 1859. tl0w"hip". Chapter 130, " An Act relating to Townships and Township Officers," approved Feb. 11, 1859. s1860.Ped Acts passed in 1860: Chapter 14, " An Act to amend an Auditor. act providing for the appointment of Territorial Auditor, and prescribe the duties of his office," approved Feb. 27, 1860. wine fences. Chapter 68, "An Act concerning a Line Fence," approved Feb. 27, 1860. Chapter 77, "An Act to amend an act entitled an act defining the Judicial Districts of the Territory, and fixing the Courts. times and places of holding Courts therein," approved Feb. 4, [11,] 1859. Approved Feb. 27, 1860. Chapter 78, "An Act to define the Judicial Districts of the Territory, and fix the times and places for holding the severa Courts. Courts therein." ACTS LEGALIZED. 83 Chapter 98, An Act to establish and define the Jurisdiction Probate Courts. of Probate Courts, in Leavenworth and other counties," approved Feb. 27, 1860. Chapter 99, " An Act supplementary to an act entitled an Suppblementary act to establish and define the Jurisdiction of Probate Courts, in Leavenworth and other counties," approved Feb. 27, 1860. Chapter 130, " An Act to provide for the issue of duplicate Territorial warTerritorial Warrants in certain cases," approved Feb. 18, 1860. rants Acts passed in 1861, (Territorial Legislature.) Chapter 24, Acts passed in 1861. "An Act additional to an act entitled an act to regulate the Territorial. taking up and posting of Strays,'"' became a law, Feb. 2, 1861. Strays. Acts passed in 1861, (State Legislature.) Chapter 59, "An Acts passed ina 1861. State. Act fixing and regulating the Fees of County Officers, Justices Fees. of the Peace, and Constables," approved June 4, 1861. SEc. 2. This act shall take effect, and be in force, from and after its publication. Approved March 6, 1862. CHAPTER V. (Acts of 1862.) AN ACT to legalize certain official acts of T. Elwood Smith, Justice of the Peace. Be it enacted by the Legislature of the State of Kansas SECTION 1. That all acknowledgments of deeds and con-Acknowledg veyances of Real Estate included within the limits of Mound meTts certified by T. E~lwood City, Linn County, Kansas, and all acknowledgments of deeds Smith confirmpertaining to the town site of the said town of Mound City, taken and certified by T. Elwood Smith, Justice of the Peace, which are not illegal, except by reason of the interest of the said T. Elwood Smith in the said town site be and, the same are hereby legalized and rendered valid. SEC. 2. This act to take effect and be in force from and after its passage. Approved March 4, 1862. 84 APPORTIONMENT. CHAPTER VI. (Acts of 1862.) F Joint Resolution of the Legislature of the State of Kansas, accepting the terms imposed by Congress upon the Admission of the State of Kansas into the Union.. Be it resolved by the Legislature of the State of Kansas: Propositions That the propositions contained in the Act of Congress, contained in Act of Admission " Entitled an Act for the Admission of Kansas into the accepted. See page 76. Union," are hereby accepted, ratified, and confirmed, and shall remain irrevocable, without the consent of the United States. And it is hereby ordained, that this State shall never Disposal of lands interfere with the primary disposal of the soil within the same States not to be by the United States, or with any regulations Congress may interfered with. find necessary for securing, the title to said soil, to bonafide iU. S. lands not purchasers thereof': and no tax shall be imposed on lands beto be taxed. longing to the United States. Approved January 20, 1862. CHAPTER VII. (Acts of 1862.) AN ACT to district and apportion the State for Senators and Representatives. Be it enacted by the Legislature of the State of Kansas: Senate shallcon- SECTION t1. That the Senate shall consist of Twenty-five sist of twentyfive, members:n members, and the House of Representatives of Seventy-five; House of Representatives of but the number iof Representatives may be increased by the seventy-five. New Counties.. organization of new counties, provided that no county not now organized shall be entitled to more than one representative, until the apportionment of 1866. Senatorial Dis- SEC. -2. The county of Doniphan shall constitute the first tricts. 1. Doniphan Co., Senatorial District, and shall elect two: senators. The county two senators. 2. Atchison Co., of Atchison shall constitute the second Senatorial District, two senators. 3. Leavenworth and: shall elect two senators. The County of Leavenworth tore. shall constitute the third Senatorial District, and shall elect 4. Jefferson Co., three senators. The county of Jefferson shall constitute the one senator. fourth Senatorial District, and shall elect one senator. The e. Brown and counties of Brown and Nemaha shall constitute the fifth Senaemator. to District and shall elect one senator. The counties of senator. torial District, and shall elect one senator. The counties of APPORTIONMEN T. 85 Jackson and Potawotamie shall constitute the sixth Sena- 6. Jackson and Potawotamie, torial District, and shall elect one senator. The counties of one senator. Marshal, Riley and Washington shall constitute the seventh leyandWashington, one senSenatorial District, and shall elect one senator. The county ator. of Shawnee shall constitute the eighth Senatorial District, and. nShawnee, one shall elect one senator. The county of Douglas shall consti- 9. Douglas, two senators. tute the ninth Senatorial District, and shall elect two senators. The county of Johnson shall constitute the tenth Senatorial 1~. Johnson, one District, and shall elect one senator. The county of Miami ll Miami, one senator. shall constitute the eleventh Senatorial District, and shall elect one senator. The county of Wyandotte shall constitute the12. Wyandotte, one senator. twelfth Senatorial District, and shall elect one senator. The county of Linn shall constitute the thirteenth Senatorial Dis- 13. Linn, one senator. trict, and shall elect one senator. The county of Bourbon shall 14. Bourbon, constitute the fourteenth Senatorial District, and shall elect one one senator senator. The counties of Morris, Chase and Butler shall15. Morris, Chase and Butconstitute the fifteenth Senatorial District, and shall elect one ler, one senator. senator. The counties of Allen and Woodson shall constitute 16. Allen and Woodson, one the sixteenth Senatorial District, and shall elect one senator. senator. The counties of Anderson and Franklin shall constitute thel7. Anderson and Franklin, seventeenth Senatorial District, and shall elect one senator. ons senator. The counties of Coffey and Osage shall constitute the eight- 18. Coffey and Osage, one senaeenth Senatorial District, and shall elect one senator. tor. The counties of Lyon and Greenwood shall constitute the19. l:eywoondon nineteenth Senatorial District, and shall elect one senator.senator. The counties of Wabaunsee, Davis, Dickinson and Saline shall 20. Wabaunsee, Davis, Dickinconstitute the twentieth Senatorial District, and shall elect one son and Saline, one senator. senator. SEC. 3. The county of Doniphan shall constitute the first, Representative second, third, fourth and fifth representative districts, a~nd Doo"~ niphstricts. shall be districted as follows: the township of Iowa shall constitute the first district; the townships of Wolf River and Burr Oak shall constitute the second district; the township of Washington shall constitute the third district; the townships of Center and Marion shall constitute the fourth district; the township of Wayne shall constitute the fifth district. The county of Atchison shall constitute the sixth, Atchinson Co., seventh, eighth, ninth and tenth representative districts, and five members. shall be districted as follows: the first and second wards of the city of Atchison shall constitute the sixth district; the township of Shannon and the third ward of the city of Atchison shall constitute the seventh district; the townships of 86 APPORTIONMENT. Walnut and Mt. Pleasant shall constitute the eighth district; the townships of Center and Capioma shall constitute the ninth district; the townships of Grasshopper and Lancaster Brown county shall constitute the tenth district. The county of Brown shall two members. constitute the eleventh and twelfth representative districts, and shall be districted as follows: the townships of Irving and Claytonsville shall constitute the eleventh district; the townships of Walnut Creek and Locknane shall constitute the Nemaha county two members. twelfth district. Thecounty of Nemaha shall constitute the thirteenth and fourteenth representative districts, and shall be districted as follows: the townships of Capioina, Nemaha, Richmond, Rock Creek and Clear Creek shall constitute the thirteenth district; the townships of Grenada, Red Vermillion, Valley and Home shall constitute the fourteenth disMarshall county trict. The county of Marshal shall constitute the fifteenth one member. Washington Co. representative district. The county of Washington shall conone meber. stitute the sixteenth representative district. The county of Potawotamie Potawatomie shall constitute the seventeenth representative one member. Jackson one district. The county of Jackson shall constitute the eighteenth member. Jefferson three representative district. The county of Jefferson shall constitute members, the nineteenth, twentieth and twenty-first representative districts, and shall be districted as follows: the townships of Oskaloosa and Jefferson shall constitute the nineteenth district; the townships of Grasshopper and Rock Creek shall constitute the twentieth district; the townships of Osawkee, Kaw and KenLeavenworth tucky shall constitute the twenty-first district. The county of:ninemembers. Leavenworth shall constitute the twenty-second, twenty-third, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth and thirtieth representative districts, and shall be districted as follows: the Government Reservation of Fort Leavenworth and the first ward of the City of Leavenworth shall constitute the twenty-second district; the second ward of the city of Leavenworth shall constitute the twentythird district; the third ward of the city of Leavenworth shall constitute the twenty-fourth district; the fourth ward of the city of Leavenworth shall constitute the twenty-fifth district the township of Kickapoo shall constitute the twenty-sixth district; the township of Easton shall constitute the twentyseventh district; the township of Alexandria, including all that portion of land lying south of said township, known as the Railroad lands, purchased by-treaty from the Delaware Indians, shall constitute the twenty-eighth district; the town APPORTIONMENT. 87 ship of Stranger, including all that portion of land lying south of said township, known as Railroad lands, to be governed by the township line dividing Stranger and Alexandria townships, and the line dividing Stranger and Delaware townships running due south to the county line, shall constitute the twenty-ninth district; the township of Delaware, with all that portion of land lying south of said township in Leavenworth county, shall constitute the thirtieth district. The county of Wyandotte one member. Wyandotte shall constitute the thirty-first representative district. The county of Johnson shall constitute the thirty-se-Johno thro cond, thirty-third and thirty-fourth representative districts, and shall be districted as follows' the townships of Olathe, Lexington and Monticello shall constitute the thirty-second district; the townships of Shawnee, Oxford and Aubray shall constitute the thirty-third district; the townships of Spring Hill, Gardner and McCamish shall constitute the thirty-fourth district. The county of Douglas shall constitute the thirty- Dougla Bsi fifth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth and fortieth representative districts, and shall be districted as follows: the township of Lawrence shall constitute the thirtyfifth district; the township of Warkarusa shall constitute the thirty-sixth district; the township of Palmyra shall constitute the thirty-seventh district; the townships of Eudora and Willow Springs shall constitute the thirty-eighth district; the townships of Lecompton and Kanwaka shall constitute the thirty-ninth district; the townships of Clinton and Marion shall constitute the fortieth district. The county of Shawnee Sheamweetwo shall constitute the forty-first and forty-second representative districts, and shall be districted as follows: the townships of Topeka and Soldier shall constitute the forty-first district; the townships of Tecumseh, Monmouth, Williarusport and Auburn shall constitute the forty-second district. The county of Miami three members. Miami shall constitute the forty-third, forty-fourth and fortyfifth representative districts, and shall be districted as follows: the townships of Mound, Ossawotamie and Stanton shall constitute the forty-third district; the townships of Paola, Richmond, Marysville and Wea shall constitute the forty-fourth district; the townships of Osage, Miami, Sugar Creek and Middle Creek shall constitute the forty-fifth district. The county of Linn shall constitute the forty-sixth, forty-seventh, bfour me forty-eighth and forty-ninth representative districts, and shall be districted as follows: the townships of Scott and Liberty 88 APPORTIONMENT. shall constitute the forty-sixth district; the townships of Paris and Centerville shall constitute the f'orty-seventh district; the townships of Potosi and Valley shall constitute the fortyeighth district; the township of Mound City shall constitute Bourbon three the forty-ninth district. The county of Bourbon shall constitute the fiftieth, fifty-first, fifty-second and fifty-third representative districts, and shall be districted as follows: the townships of Osage and Freedom shall constitute the fiftieth district; the townships of Timber Hills and Franklin shall constitute the fifty-first district; the townships of Marmaton and Marion shall constitute the fifty-second district; the township of Scott shall constitute the fifty-third district. The Allen two mem- county of Allen shall constitute the fifty-fourth and fifty-fifth bars. representative districts, and shall be districted, as follows: the townships of Coffachique, Humboldt and Cottage Grove shall constitute the fifty-fourth district; the townships of Grenada and Deer Creek shall constitute the fifty-fifth district. The Andersontwo county of Anderson shall constitute the fifty-sixth and fiftymembers..seventh representative districts, and shall be districted as follows: the townships of Walker and Monroe shall constitute the fifty-sixth district; the townships of Washington, Jackson, Reeder and Ozark shall constitute the fifty-seventh district. ranklin two The county of Franklin shall constitute the fifty-eighth and members. fifty-ninth representative districts, and shall be districted as follows: all that portion of the county lying north of the Marias de Cygnes, or Osage river, shall constitute the fiftyeighth district; all that portion of the county lying south of said river shall constitute the fifty-ninth district. The county Osage one mem- of Osage shall constitute the sixtieth representative district. ber. Coffey two mem- The county of Coffey shall constitute the sixty-first and sixtybars, second representative districts, and shall be districted as follows: the townships of Potawatamlie, California, Ottumwa and Burlington shall constitute the sixty-first district; the townships of Leroy, Avon and Neosho shall constitute the Woodson one sixty-second district. The county of Woodson shall constitute member. ayon three the sixty-third representative district. The county of Lyon members. shall constitute the sixty-fourth, sixty-fifth and sixty-sixth representative districts, and shall be districted as follows: the townships of Emporia, Pike and Center shall constitute the sixty-fourth district; the townships of Jackson, Elmendaro and Waterloo shall constitute the sixty-fifth district; the townships of Fremont, Americus and Agnes City shall con APPRENTICES. 89 stitute the sixty-sixth district. The county of Butler shall B'tler onenemconstitute the sixty-seventh representative district. The Chras oe iLenber. county of Chase shall constitute the sixty-eighth representative district. The county of Morris shall constitute the Morris one sixty-ninth representative district. The county of Wabaunsee Wanbanee one shall constitute the seventieth representative district. The county of Davis shall constitute the seventy-first represeinta- ba,.i one tive district. The county of Riley shall constitute the sev-Aley one Mementy-second representative district. The county of Dickin- Dickerson one son shall constitute the seventy-third representative district. The county of Saline shall constitute the seventy-fourth rep- Sealin~ m resentative district. The county of Greenwood shall consti- Greenwood one member. tute the seventy-fifth representative district. SEC. 4. If any of the counties in this State now unorgan-hew to"betiet, ized, shall be organized before the next apportionment fortac hed to Senatorial districts. members of the Legislature, until such apportionment such counties shall be attached for Senatorial purposes as follows: Cherokee county to Bourbon county; Neosho county to Allen county; Wilson county to Woodson county; Seward county to Greenwood county; Peckton, Irving and Otoe counties to Butler county; Marion county to Chase county; Ottawa to Saline county; Clay county to Riley county; Shirley and Republic counties to Washington county. SEc. 5. Each Representativee District shall elect one repre- Each Iepresetsentative, who shall reside in the district for which he is entitled to one member. elected, and no elector shall vote: for any senator or repre- Elector shall sentative in any other than the Senatorial or Representative districtinwhich he resides. District in which such elector shall reside. SEC. 6. This Act shall take effect and be in force from and after its publication. Approved March 3, 1862. CHAPTER VIII. (Acts of 1859, Chapter XII1.) AN ACT concerning Apprentices. Be it enacted by the. Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. Every person bound by indenture of his freePeronssboUnd. will, with the consent of his father, or if he be dead, of theshall be bound. mo, W fther or guardian, an sign if peor the time mother or guardian, and signified by such parent or guardian specified. 90 APPRENTICES. signing the same, or by the Probate Court, as hereinafter directed, to serve as clerk or apprentice, in any profession, trade or employment, until the age of twenty-one years, or, if a female, until the age of sixteen years, or for a shorter time, shall be bound to serve the time specified in such indenture. Infants without SEC. 2. Any infant, having no parent or guardian, may, parents or guardumaybind with the approbation of the Probate Court, endorsed on the indenture, bind himself an apprentice until he arrives at the age of twenty-one years, or, if a female, at the age of sixteen years. Parties to whom SEC. 3. Upon the execution of every indenture of apprenthey are bound to make affidavitticeship, the person to whom the apprentice is bound, shall of faithful performance. make an affidavit that he will faithfully perform the duties required by the indenture and enjoined on him by law, which affidavit shall be indorsed on the indenture. When the moth- SEC. 4. When the father has no legal capacity to give coner shall have the power. sent, or when he shall willfully have abandoned his family for six months, without making suitable provisions for their support, or has become an habitual drunkard, the mother shall have the same power to give such consent as if the father was dead. Jury in probate SEC. 5. Acts of incapacity, desertion or drunkenness, shall court decide on capacity of fath- be decided in the Probate Court, by a jury, before the indener, and indorse decision on in- ture shall take effect, and an indorsement on the indenture, denture. under the seal of the Court, that the same are proved, shall be sufficient evidence of the mother's power to give such consent; but if the jury do not find the charge of incapacity, drunkenIf charges not proved true, ness or desertion to be true, the person at whose instance such costs paid by party applying. proceedings may have been had, shall pay all costs attending the same. When probate SEC. 6. When any poor child is, or may be, chargeable to court may bind out poor chil- the county, or shall beg for alms, or when the parents of such [Seeo hap. 162, children are poor, and their father an habitual drunkard, or if Sec. 28.] there be no father, when the mother is of bad character, or suffers her children to grow up in habits of idleness, without any visible means of obtaining an honest livelihood, it shall or what time. be lawful for the Probate Court to bind such child an apprentice until, if a male, he arrives to the age of twenty-one years, and if a female, to the age of sixteen years. When orphans SEC. 7. Every orphan or minor, who has not estate sufficient or minors may be bound by for his maintenance, Inmay be bound by his guardian, under the guardians. order and direction of the Probate Court, and the indenture of APPRENTICES. 91 binding such infant, shall be as effectual as if such infant were of full age; and the counterpart of such indenture shall, forDuplisateindenture to be deposthe benefit of the infant so bound, be deposited with the clerk ited with clerk of the Probate Court in which such binding shall take place, ofprobatecourt. for safe keeping. SEC. 8. It shall not be lawful for any master to remove an Apprentices not to be removed apprentice out of this Territory, and in all indentures by the from the Territory. Probate Court, for binding out any orphan or poor child as an apprentice, there -shall be inserted, among other covenants, a clause to the following effect: That every master to whom such child shall be bound, shall cause such child to be taught to read and write, and the ground rules of arithmetic, the Children to, be compound rules and the rule of three, and at the expiration ofwrite,&C his time of service, shall give him a new Bible, and two new suits of clothes; if a male, to be worth forty dollars, and, ifMasterstobe bound for outfit a female, to be worth twenty dollars, and ten dollars in cur- at expiration of service. rent money of the United States. SEC. 9. The Probate Court shall see that the terms of the Probate court to enforce terms of indenture, and the covenants therein contained, be fulfilled, indenture. and that such child be not ill used; and the said Court is hereby required to inquire into, and redress any grievances that may occur in the premises, in such manner as is prescribed by law. SEC. 10. The age of every apprentice shall be inserted in the Age to be inserindenture. ted in indenture. SEC. 11. All indentures entered into otherwise than accord- Indenture not ing to law, shall be utterly void, so far as concerns the ap- oC.rdingdtlaw prentice therein bound. SEC. 12. The Probate Court shall receive the complaints of Apprentices may complain to proapprentices who reside within the county, against their mas- bate court. ters, alleging undeserved or immoderate correction, insufficient allowance of food, raiment or lodging, want of instruction in their trade or profession, or that they are in danger of being removed out of this Territory, or the violation of the indentures of apprenticeship; and may hear and determine such cases heard and cases by a jury, and make such order therein as will relievejuy.minedby a the party injured, in future. SEc. 13. The Probate Court shall have power. when circum- When probate stances require it, to discharge an apprentice from his appren- courtgema daiticeship; and in case any money or other thing has been paid, Prentice. or contracted to be paid by either party, in relation to such apprenticeship, the Court shall make such order concerning 92 APPRENTICES. the same, as shall seem just and reasonable. If the apprentice so discharged shall have been originally bound by the Probate Court, it shall be the duty of the Court, if they judge necessary, again to bind such apprentice. complaints ofhar SEC. 14. The Court shall, in like manner, hear and determater mine the complaint of masters against their apprentices, for desertion without good cause, miscarriage or ill behavior, and may punish such apprentice according to the nature and aggravation of his offense; and if the offense be willfil desertion, without cause, the Court may, in addition to other punishments, order the apprentice guilty thereof, to make restituPenalty for will-tion by the payment of a sum not exceeding ten dollars, for an apprentice. each month he may be so absent, to be collected as other debts, after such apprentice shall have become of full age. The Costs at the dis- awarding of costs in the proceedings under this section shall cretion of the court. be in the discretion of the Court. Warrants may SEC. 15. If any apprentice shall abscond or depart from slending or c.- the service of his master, without leave, or shall rebel against or assault his master, any Judge or Justice of the Peace, on complaint made, and sufficient cause shown, on oath, by the master, or any one in his behalf, shall issue a warrant directed to any Sheriff or Constable within this Territory, or any discreet and responsible person, to be named in the warrant,, to execute the same in any part of this Territory. May be carried SEC. 16. If, upon the return of any such warrant, the Probefore judge or t w - justice of peace. bate Court shall not be in session, it shall be the duty of the person serving the same, to carry the apprentice before some Judge or Justice of the Peace of said county, who shall take bail for the appearance of the apprentice at the next term of th May be linpris- Court, to answer to the complaint of the master; or for want oned. of bail, to commit him to prison until the sitting of the next Court, unless the master shall consent to his discharge. The Costs, by whom costs Of the process, service and commitment, shall be paid, paid. in the first instance, by the master; but the'Court, upon the final hearing, may order such apprentice to make restitution of such costs, by service, after the expiration of the time' for which he shall have been bound. Penalty for in- SEC. 17 Every person who shall counsel, persuade, entice ducing him to any abscond. or assist any apprentice to run away or absent himself from the service of his master, shall forfeit not less than twenty, nor more than five hundred dollars, to be sued for and recov............~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ APPRENTCEST 98 ered, with costs, by such master, in any Court having jurisdiction; thereof. SEc. 18. Every person who shall entert'ain, harbor or con- Penalty for laarboring. ceal any apprentice, knowing such apprentice to be runaway, or to' have absented himself from the service of his master, withoutt leave, shall forfeit one dollar fr' every day's entertainment, harboring or concealing, to be sued for, and recovered, by action- of debt, with costs, by such master, in aiy Court having jurisdiction' thereof. SEe. 19.: The: executor, who, by the last will; of a' father, iS When e~xee~uto directed to bring up' his child to some trade or calling, sh allprentice. 4have power, with the consent of the mother,; if living, to bind such child by indenture ifn like manner as the father, if living, might hbave done; or shall raise such child according to such direction, if consented to by' the mothe;r. SErc 20. If it shall appear to any' Judge or Justice of the Oomplaint against master, Peace,; upon- the oath of any competent; person, that any how made. ter is about to remove, or catse to be remhoved,-l any apprentice out of this Territory, such Judge or Justice shall issue his warrant and cause such master to be brought:before him; and, if upon examination, it shall appear that- such apprentice is in danger of being removed without this Territory, the Judge or Justice may require the master to enter into recognizance with sufficient security, in. the sum of one thousand dollars:, condi- Mastoro give security against tioned that such apprentice shall not be removed without this removal. Territory, and that said master will appear: with the apprentice before the Probate Court, at the next term thereof, and abide the decision of the Court thereon, which recognizance shall be returned to the Probate Court; and the Court shall proceed therein, in a summary manner, and may discharge or continue the recognizance, or may require a new recognizance, and otherwise proceed according to law and justice. SEC. 21. If the master, when brought before the judge orMest'rfailingto justice, fails to enter into recognizance when required so to do, such judge or justice shall commit the custody of such apprentide to some other pr person, who will enter into recognizance. SEC. 22. Whenever any master of an apprentice shall wish MAanner of di-..f 1 ft....' mcharge upon re-to remove out of this Territory, or quite his trade or business, m~'a~f=mate?' he shall appear with his apprentice before the probate court of the proper county; and if the court be satisfied that the master 7 94 APPROPRIATIrOKS has done justice to said apprentice for the time he has had; charge of the same, such court shall have power to dischargesuch apprentice from the service of such master; and again bind him, if necessary, to some other person. Indentures to SEC. 23. When any person shall become bound as an, apsurvive against living partners. prentice to two or more persons, and one or more of them die, before the expiration of such term of service, the indenture shall survive to and. against such survivor; and, in case of the death of all masters in any such indenture, before the expiration. of the term of service, the executor or administrator shall bring the indenture and apprentice named therein, before the probate court of the proper county, and such court shall, if necessary, again bind such apprentice to some other person. Absenting with. SEC. 24. If any apprentice shall absent himself from the out leave. service of his master, without! leave, or, shall run away, so that the master shall be deprived of his service during the remainder of the time, or any part thereof, for which. he was bound to serve, the master of such apprentice may have an action, in any court of competent jurisdiction, against such apprentice, after he arrives. at full age, for the damages that. such. master may have sustained by reason of the absence of such. apprentice; such action shall be brought within two years after such aprentice arrives at full age. This act to take. effect and be in force from and after the first; day of June next. Approved January 31, 1859. CHAPTER IX. (Acts of 1862.) AN ACT making Appropriations for addition to State Library, and for expenses of the Supreme Court. Be it, enacted by the Legislature of the State of Kansas: For pay of offi- SECTION 1. That there is hereby appropriated out of any cers of supreme court, rent of of- money in the Treasury not otherwise appropriated for the Sufices, &c., $16-00. preme Court for the year 1862, and the special session of the year 1861. For pay of officers, rent of court-room, rent of clerk's office, rent of judges' consultation-room furniture, and contingent expenses, the sum of fifteen hundred dollars, or so much thereof as may be necessary. APPROPRIATIONS. 95 SEc. 2. That for addition to the Law Library of the State Foaraddition to the sum of two thousand dollars, to be expended under the ry, $2,000, direction of the Judges of the Supreme Court, and the Auditor of the State, is authorized to draw his warrant for the amount, and deliver the same to said Judges, for the expenditure of which they shall account to the Auditor. SEC. 3. The Auditor is hereby authorized to audit and draw Auditor authorized to draw warhis warrant upon the Treasurer for the expenditures of therants on the Supreme Court, upon the same being certified to by the Clerk of the Supreme Court. SEC. 4. This act to be in force from and after its publication in the Daily State Record. Approved February 21, 1862. CHAPTER X. (Acts of 1862.) AN ACT making an Appropriation for Educating the Deaf and Dumb Children of the State of Kansas, for the year 1862. Be it enacted by the -Legislature of the State of Kansas: SECTION 1. That the sum of five hundred dollars, or so much APPropriation thereof as may be necessary, is hereby appropriated out of any moery as teachor of deaf and moneys in the treasury not otherwise appropriated, for thedumb. purpose of assisting Prof. P. A. Emery, as teacher of the deaf and dumb. SEC. 2. That the said Emery is allowed twenty-five centsTohave twenty per day for each and every deaf, mute scholar receiving in- ive cents per day for each pu.. struction from him or his assistant, over and above that which pil, he may receive per contract from the parents or guardians of mute children of this State. SEC. 3. The said Emery or his assistant must produce to the Vouchers Auditor of State a written certificate stating the number of scholars and the number of days each scholar has attended his school, which certificate must be subscribed and sworn to before a justice of the peace. SEC. 4. The Auditor of State is hereby authorized to issue Auditor to dravw.. warrants upon the Treasurer of the State for the purpose and warrant. amount specified in the above mentioned certificate. SEc. 5. This act shall take effect and be in force from and after its passage. Approved March 5, 1862. 96 APPROPRIATIONS. CHAPTER XI. (Acts of 1862.) AN ACT making Appropriations for the current expenses of the years 1861 and 1862. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the following sums, or so much thereof as may be necessary, are hereby appropriated out of any money in the Treasury not otherwise appropriated, for the purposes Tor Governor. herein named, for the year 1862: For Executive Department, Governor's salary, two thousand dollars, office rent two hundred and fifty dollars, telegraphing two hundred dollars, priAdjutant Gen- rate secretary six hundred' dollars; Adjutant General's Deeral's department. partment, five hundred dollars; Quarter Master's Department, Secretary of five hundred dollars; for Secretary of State's Department, SecState. retary's salary fifteen hundred dollars, clerk's hire five hundred and forty dollars, office rent one hundred and fifty dollars, record books twenty-five dollars, express charges fifty dollars, contingent expenses one hundred and seventy-five dollars; for Legislation additional. additional allowance for pay of members and officers of the Legislature one thousand dollars; for Treasurer's Department, Treasurer's de-. Treasurer's salary twelve hundred dollars, clerk hire two hunpartment. dred and fifty dollars, for office rent one hundred and twentyfive dollars, contingent expenses one hundred dollars; for AuAuditor's do- ditor's Department, Auditor's salary fifteen hundred dollars, partment. clerk hire six hundred dollars, office rent three hundred dollars, blank books thirty dollars, contingent expenses one hunLibrariaI. dred dollars, for pay of Librarian for years 1861 and 1862 Superintendent four hundred dollars; Superintendent of Public Instruction's trouic tin Department, salary twelve hundred dollars, office rent one hundred and twenty dollars, traveling expenses two hundred dol. Attorney Gen lars, contingent expenses one hundred dollars; Attorney General's depart. eral's Department, salary one thousand dollars, incidental and raent. Judiciary de- contingent expenses five hundred dollars; Judiciary Departlpartment. ment, Chief Justice's salary eighteen hundred dollars, salary of two Associate Judges three thousand dollars, for: salary of five district judges seven thousand and five hundred dollars; Legislative doe Legislative Department, rent of hall for House of Representapartment. tives for session of 1862, three hundred dollars, rent of Senate Chamber one hundred and seventy-five dollars, transcribing the Leiglg uPder journals of the House and Senate five hundred dollars; Miscelorders of the laneous, for legal expenses, assistants, &c., in, prosecution of Legislature. APPROPRIATIONS. 97 cases arising under orders of the Legislature to be drawn upon vouchers of the Attorney General five hundred dollars; for James L. McDowell, in payment of advertising of Governor's ertisinadProclamation of February 9th, 1861, Election Proclamation of members of Congress, &c,, in Leavenworth Times, forty-four dollars and fifty cents; Reporter of the Supreme Court one Reporters of suthousand dollars; Samuel E. Sweet for ice furnished House of Ice. Representatives 1861, eight dollars and twenty-five cents; W. P. Caldwell, labor at Lecompton, five dollars; Silas B. Norton, Lumber. for hauling books, papers, &c., from Lawrence twenty-eight Hauling, &c. dollars; O. Wilmarth for stationary, &c., furnished state in Stationery. 1861, one hundred and fifteen dollars and thirty-five cents; Dr. Tefft, for J. M. Wright, removing furniture three dollars; Jacob Removing furStatler for publishing Banking Law, Governor's Proclamation, Publishinglaws, Amendments to the Constitution, and Military Orders two hun- & dred and ninety-eight dollars and eighty cents; Jonathan Lyman for publishing Banking Law, Amendment to the Consti- Same. tution, and Proclamation for Election three hundred and twentynine dollars and fifteen cents; John A. Martin, for publishing same. Banking Law and Election Proclamation two hundred and forty-seven dollars; S. S. Prouty, for publishing Banking Law, Same. Amendment to the Constitution, Election Proclamation in 1861, and General Orders three hundred and fifty-two dollars and fifteen cents; R. B. Taylor, for publishing Banking Law, same. Amendments to Constitution, Election Proclamation for-member of Congress, general election Proclamation, Posters for Militia and Military Orders, in September and October, 1861, three hundred and sixty-nine dollars and fifty cents; J. M. sundries. Hamilton & Co., sundries forty-eight. dollars and ninety-four cents; D. L. Lakin, for rent of room, twenty dollars; D. Ander- Rent. Sundries. son, sundries, six dollars; Topeka Mill Company, for lumber, Lumber. four dollars and eighty-five cents; J. A. Brown, for rent of Rent. room at the October term of the Supreme Court, eighteen dollars; Gale & Gale, for lumber and work, thirteen dollars and Tumber, &c. five cents; S. D. Biglow and Smith, hauling, sixteen dollars; Hauling. John Ritchey, for rent of rooms furnished committees of Legis- Rent. lature in 1861 and 1862, seventy dollars; E. A. Goodell, forFreight. freight, one dollar; A. Tuttle, hauling load of chairs from auling. Leavenworth City, five dollars and fifty cents; James B. Davis, chairs. bill of chairs, fifty-five dollars; E. G. Ross, for four hundred opoka State and forty-three copies of Topeka State Record Daily, seven 98 APPROPRIATIONS. hundred and seventy-five dollars and twenty-five cents; for Printing, &c. printing bill-heads four dollars; for advertising laws, &c., one Transcribing hundred and thirty-three dollars; for expenses of transcribing records of land. District Record- and indexing the Records of the several Land District Recordr's office er's Offices, to wit: for Pawnee Land District eleven hundred dollars, for Delaware Land District nine hundred dollars, for Western Land District two hundred dollars; for Osage Land Blank books. District one hundred dollars, for blank books in which to transcribe the Records three hundred dollars; Trask & Lowman for rinti-,g, &c. printing blanks, proclamation, &c., one hundred and fortyseven dollars and twenty-five cents, for publishing election proclamations, amendments to the constitution, proposals for public printing and banking law, three hundred and eighty-one dollars and forty-five cents; D. W. Wilder & Co., for adverAdvertising. tising orders, and election proclamation one hundred and sevaStme. enty-four dollars and fifty cents; John Francis for advertising banking law notice and election proclamation two hundred and $ame. eighty-nine dollars and fifty cents; H. T. Hunt for advertising lasnme. election proclamation thirty-five dollars; E. A. Smith for adSame. vertising amendment to constitution ten dollars; C. E. Griffith for advertising banking law, amendment to constitution, and election proclamation two hundred and seventy-one dollars, Oame. James Humphrey for advertising banking law, election notice and amendment to constitution three hundred and twenty-nine Me..ls. dollars and eighty cents; Gunn & Mitchell for one hundred copies of map, seventy-five dollars; J. A. Brown, sundries; Spittoons. twelve dollars and sixty-four cents; Charles Moser, for spittoons, four dollars and seventy-five cents; Ginnold & Morris, epeairs of hall for repairs of Representatives' Hall and Senate Chamber, nine and Senate chamuber. dollars and twenty-five cents; E. Baker, for labor performed IaLabor. on order of Sergeant-at-arms, of the House, sixty-five dollars sundries, and fifty cents; Charles Clarkson, sundries ordered by House of Representatives, eighty-four dollars and seventy-five cents; (:,otingent ftnd contingent fund for the payment of such claims against the State as may have been contracted by order of either House of the Legislature and remain unprovided for in the general appropriation, the sum of two hundred dollars, to be drawn from st.te Superin- the Treasury in accordance with section two of this act. The iendent of Pubsi' Instruction,. first quarterly instalment of the salary of Superintendant of Public Instruction for the year 1862, shall be subject to the order of the widow of the late William R. Griffith. For State APPROPRIATIONS. 99 rfinting twelve thousand dollars; to pay for copies of Leaven- State printing. worth Conservative and Times, ordered by the Senate, onea venworthd hundred and fifty dollars; (Chairman of printing committee, for Times. messenger boy, two dollars and thirty-five cents; to D. H. Messenger.:Weir for service in Secretary of State's office fifty-five dollars; Services in Sectto Philip Johnson, hanging curtains, &c., three dollars and Curtains. twenty-five cents; F. G. Adams, two hundred dollars, or so Forindexing much thereof as may be necessary for indexing and preparing lug agd,',al-.m. 1notes and refermarginal notes and notices of the repeal and amendments oftndces. ~different sections:for the volume of laws proposed to be published at the close of the present session, provided that he receive not to exceed three dollars per.day for services so rendered, his account to be allowed by the Auditor on its being rendered authenticated by affidavit; Jacob Smith, one hundred Sundries. tand forty-seven dollars and twenty-five cents, for sundries; C. H. Stillwell for acting as Sergeant-at-arms for Investigating Sergeant atarm Committee, seventy-three dollars and fifty-five cents; J. C. fommittee.ig Bartlett, for sundries, thirteen dollars; L. C. Wilmarth fori Work, &c. work, &c., fifty dollars in full of his account; Aaron Katzen- Territoriallaws, stein four hundred and fifty-five dollars for Territorial Laws of 1860, Journals, &c.; James C. Horton to redeem Treasurer's Treasurer's warrant No. 8. Warrant: No. 8, fifty dollars; to John Speer for publishing Printing. Governor's Proclamation convening State Legislature, and for election to fill vacancy and proposed amendment to the State Constitution, and advertising and posters for military orders, eighty dollars; George L. Hough, for arresting a fugitive from Arresting a fegitive from jamIndiana under orders of Governor, forty-three dollars and fifty tice. from cents; for expenses in connection with the trial of cases Of Expensesoftrial of impeachment impeachment now pending before the Senate, ten thousand cass. dollars and of the sum so appropriated for said trials, the sum of one thousand dollars, or so much thereof as may be necessary, may be drawn prior to said trials for the purpose of procuring testimony for said trials, by the Chairman of the Procuring testimony. Managers on the part of the House, and he shall make return, under oath, at the conclusion of said trials, of the amount expended and the manner in which it has been expended, and pay into the Treasury of this State the amount then remaining in his hands; for selecting the land granted to the For selecting State of Kansas, by the United States, twenty-eight hundred the U.S. and seventy-eight dollars; to A. Katzenstein for binding, fold- Binding laws. ing, and stitching laws and journals of 1861, eighteen hundred and seventeen dollars and ten cents; David Weer for chopping Chopping wood. 100 APPROPRIATIONS. wood for Senate hall and Executive offices and taking care of Gaeoofexesu- said offices, twenty-three dollars and eighty-five cents; Alvan Battey for taking care of Executive offices in 1861, fourteen am.e. dollars; C. Moser for services taking care of Executive offices in 1861, one hundred and sixteen dollars; for compensation of Chaplains. the persons officiating as Chaplains of the Senate- and House of Representatives, three hundred dollars, the same to be paid to each person at the rate of three dollars per day for each day's actual service. Auditor to issue SEC. 2. The Auditor of State is hereby authorized to issue warrants. warrants upon the Treasury of the State for the purposes and amounts specified in the first section of this act, or so much thereof as may be necessary to liquidate all such accounts Accounts, how which may be presented to him; Provided, that where any of authenticated. such accounts have been ordered or contracted for by the State officers, or the Sergeant-at-arms of either House, the same shall be authenticated by the affidavit of the claimant that said claim is just, correct, and unpaid, and by the,certificate of the officer ordering the articles, or contracting with the claimants, that such claim is just, correct, and unpaid and was ordered or contracted for; but the Auditor shall in no case issue his warBills in detail rants upon the Treasury unless detailed bills of all articles must be producod and filed. purchased are produced as vouchers, and filed with the affidavit of the claimant and the certificate of the officer contracting with said claimant, and no State officer, or any other person Sums not to be shall draw from the Treasury any of the sums named in the drawn until the expenses are in-first section of this act, before the expenses for which such ourred. P. "' sums are appropriated are actually incurred. SEC. 3. This act shall take effect and be in force from anld after its publication in some newspaper published in Topeka, and the Secretary of State is hereby directed to cause such publication to be made immediately upon its becoming a law. Approved March 5, 1862. CHAPTER XII. (Acts of 1862.) AN ACT making Appropriations for the current Legislative and other Expenses for the years 1861 and 1862. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the following sums, or so much thereof as may be necessary, are hereby appropriated out of any money ASSESSMENT. 101 in the Treasury not otherwise appropriated, for the purposes herein named, for the year 1862. For per diem allowance for or pay of members of the Legis. one hundred members of the Legislature, fifteen thousand dol- lature. lars; for allowance for President of the Senate, four hundred Allowaeno for dollars; for extra allowance for Speaker of the House, oneSenate. For extra allowhundred and fifty dollars; for mileage of the members of the ane of Speaker of the House of Legislature, three thousand dollars; for the officers and mes- Representatives. For mileage. sengers of the Senate, one thousand dollars; for the officersrFor officers. and messengers of the House, two thousand dollars; for sta. tionery for the Legislature, six hundred dollars; for fuel and lights for the Legislative halls, one hundred and fifty dollars; for paying Lieutenant-Governor's bill for mileage and per diem as canvasser to canvass the vote for permanent location of the State Capitol, eighty dollars. SEc. 2. The Auditor of State is hereby authorized to issue his warrants upon the Treasurer of State for the purposes and amounts specified in the first section of this act, or so much thereof as may be necessary to liquidate all such accounts which may be presented to him properly authenticated by affidavit. SEC. 3. This Act shall take effect and be in force from and after its publication in some newspaper published in the city of Topeka. Approved January 24, 1862. CHAPTER XIII. (Acts of 1862.) AN ACT to Legalize the Assessment of Davis County. Be it enacted by the Legislature of the State of Ka.nsas: SECTION 1. That the assessment and levy of taxes for theTaxes fors186 - - legalized. year A. D. 1861, made in Davis county, be and the same are hereby declared to be legal and valid. SEC. 2. This Act shall take effect and be in force from and after its publication in the Smoky Hill and Republican Union; and it is hereby made the duty of the Secretary of State, immediately after the passage of this act, to forward a certified copy of the same to said paper for publication. Approved February 22, 1862. 102 ATTORNEYS AT LAW. CHAPTER XIV. (Acts of 1860, Chapter XIII.) AN ACT to regulate Voluntary Assignments with a view to Insolvency. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: All assignments, SECTION 1. That all voluntary conveyances, sales, assign. sales, &c., void, unlessassignee is ments or transfers whatever, of any real estate, chattels real, resident of Territory and exe- goods and chattels, rights, credits, moneys or eflects whatever cute bond. hereafter made, with a view to the insolvency of the assignor, shall be void as against creditors, unless the assignee in all cases shall be a resident of this Territory, and shall, before taking upon himself the several trusts conferred upon him or them, by such conveyances or transfer appointing him, execute to the assignor and the creditors named in such conveyance, a bond, in a penal sum at least double the amount of the value of the assets received under such conveyance or transfer, with sufficient sureties, to be approved by the judge of the probate court of the county where the assignee or assignor resides at the date of the instrument of assignment, conditioned to pay over all moneys that shall come to his or their hands from the effects of the assignor, after deducting the necessary expenses of performing the trust, to the several persons or parties named in the instrument of assignment appointing such assignee or assignees, according to the tenor and effects Bonda filed. of such instrument of assignment, which bond shall be filed in the office of register of deeds for the county in which the property assigned is situated. SEC. 2. This Act shall take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER XV. (Acts of 1859, Chapter XIV.) AN ACT relating to Attorneys at Law. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Attorneys now SECTION 1. All persons who, by the law heretofore in force, in practice may continue. were permitted to practice as attorneys and counsellors, may continue to practice as such. ATTORNEYS AT LAW, 103 SEC. 2. Any white male citizen of the United States, who Qualifctioos is actually an inhabitant of this Territory, and who satisfies any district court of this Territory, that he possesses the requisite learning, and that he is of good moral character, may, by such court, be permitted to practice in all district and inferior courts of this Territory, upon taking the usual oath of office. SEC. 3. The supreme court may, on motion, admit any Supreme Court practicing attorney of the district court, to practice in the su- when. preme court upon his taking the usual oath of office. SEC. 4. Any practising attorney of any State or Territory, Form of ath. having professional business in either the supreme or district court, may, on motion, be admitted to practice in either of those courts, upon taking the oath as aforesaid. SEC. 5. The form of the oath aforesaid shall be in substance Form of Oath. as follows: " You do solemnly swear that you will support the Constitution of the United States and the Organic Act of this Territory, and that you will faithfully discharge the duty of an attorney and counsellor of this court, according to the best of your ability.', SEC. 6. An attorney and counsellor who is guilty of deceit Penalty for deceit or collusion. or collusion, or consents thereto, with intent to deceive a court or judge, or a party to an action or proceeding, or brings suit or commences proceedings without authority therefor, is liable to be disbarred, and shall forfeit to the injured party treble damages, to be recovered in a civil action. SEC. 7. The court may, on motion, for either party, and on Attor'y to make the showing of reasonable grounds therefor, require the attor- act. ney for the adverse party, or for any one of several adverse parties, to produce or prove, by his own oath or otherwise, the authority under which he appears, and, until he does so, mya stay all proceedings by him on behalf of the parties for whom he assumes to appear. SEC. 8. An attorney has a lien for a general balance of com- Attorney may have lieu on papensation upon any papers of his client which have come into pers and money of his client. his possession in the course of his professional employment, upon money in his hands belonging to his client, and upon money due to his client, and in the hands of the adverse party, on an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party. SEc. 9. Any person interested in such matter may release Release lien by....-~~~~~ ~giving security. 104 ATTORNEYS AT LAW. such lien by giving security in a penalty equal to the amount claimed by the attorney, and conditioned to pay the amount that may be finally found due for his services. C(ourt may sus- SEC. 10. The supreme and district courts may respectively pend license. revoke or suspend the license of any attorney or counsellor at law to practice therein, and a revocation or suspension, by the district court in one county, operates to the same extent in the courts of all other counties. Causes for revo- SEc. 11. The following are sufficient causes for such revocacation. tion or suspension: First. When he has been convicted of a felony or of a misdemeanor involving moral turpitude, in either of which cases the record of conviction is sufficient evidence. Second, When he is guilty of a willful disobedience or violation of the order of the court, requiring him to do or forbear an act connected with, or in the course of his profession. Thi/d, For a willful violation of any of the duties of an attorney or counsellor, as hereinbefore prescribed. Fourth, For doing any other act to which such a consequence is by law attached. Iroceedings. SEc. 12. The proceedings to remove or suspend an attorney, may be commenced by the direction of the court, or on motion of any individual. In the former case, the court must Accusation, direct some attorney to draw up the accusation; in the latter, the accusation must be drawn up and sworn to by the person making it. Order entered SEc. 13. If the court deem the accusation sufficient to for attorney to appear. justify further action, it shall cause an order to be entered requiring the accused to appear and answer, on a day therein fixed, either at the same or a subsequent term, and shall cause a copy of the accusation and order to be served upon him personally. Accused may de- SEC. 14. To the accusation he may plead or demur, and the mur. issues joined thereon shall in all cases be tried by the court, all the evidence being reduced to writing, filed and preserved. Judgment. SEC. 15. If the accused plead guilty, or fail to answer, the court shall proceed to render such judgment as the case requires. Appeal. SEC. 16. In case of a removal or suspension being ordered by a district court, an appeal therefrom lies to the supreme court, and all the original papers, together with a transcript of the record, shall thereupon be transferred to the supreme Acquittal final. court, to be there considered and finally acted upon. A judgment of acquittal in the district court is final. ATTORNEYS. 105 SEC. 17. An attorney who receives the money or property Failure to pay on demand a of his client in the course of his professional business, and misdemeanor. refuses to pay or deliver it immediately after demand, is guilty of a misdemeanor. SEc. 18. Where the attorney claims to be entitled to a lien When not liable to above penalupon the money or property, he is not liable to the penalties ties. of the two preceding sections, until the person demanding the money, proffers sufficient security for payment of the amount of the attorney's claim when it is legally ascertained. SEC. 19. This act to take effect and be in force from and after the first day of June- next. Approved January 31, 1859. CHAPTER XVI. (Acts of 1861. Chapter II.) AN ACT providing for the election of District Attorneys, and defining their Duties. Be it enacted by the Legislature of the State of Kansas: SECTIoN 1. That, at the next general election after the pas- Teifrni ofcfico of sage of this act, and at the general election in every second torney. year thereafter, there shall be elected, in each judicial district in the State, a district attorney, who shall hold his office for the term of two years, and until his successor shall be elected and qualified. SEC. 2. That it shall be the duty of the district attorney shallc apearinl of each judicial district, to appear in the District Court in each each county, and before Justices of county, and to prosecute and defend all actions, civil and crim- the r when inal, and all plaints, pleas, or other matters whatsoever, in and8criami-nalac which the State or county may be a party or interested. When. liminary exar - inations. requested, he shall, also, appear before any Justice of the Peace or other officer exercising judicial functions in the district, and prosecute in cases of preliminary examination of offenders against the laws of the State. SEC. 3. That the district attorney shall, without fee or re- Shall give hit opinion without ward, give opinions and advice to the board of county commis- fe or reward, when requested sioners, and other civil officers of the county, when requested b Cy tneBoard of by such board or officers, upon all matters in which the State missioners. or county is a: party or may be interested. SEC. 4. That the district attorney shall not receive any fee Shall receive no fee or reward,&c. 108 ATTORNEYS. or reward from or on behalf of any prosecutor or other individual, for services in any prosecution or business to which it Shall not be con- shall be his duty to attend, nor be concerned as attorney or cerned as attorney, when. counsel for either party other than the State or county, in any civil action depending upon the same state of facts upon which any criminal prosecution commenced but undetermined shall Not eligible to depend; nor shall any district attorney, while in office, be any Judicial officiaf- eligible to or hold any judicial office whatsoever. Incaseofvacan- SEc. 5. That, in case of vacancy in the office of district cy, the District Judge shall ap- attorney, the judges of the District Court of the proper district shall appoint some proper person to fill such vacancy until the next general election thereafter, and until his successor shall be duly elected and qualified. When the district attorney and Whil abesnt his deputy shall be absent from court when his rtheir] services peron may bea are required, the court may appoint a district attorney for the appointed to actato y until the return time being, who shall possess all the powers and perform all of the District a Attorney. the duties, and be entitled to receive the same fees as the district attorney, until such district attorney shall appear in court. Shall examine SEC. 6. That it shall be the duty of the district attorney, witnesses before raw dJurynd whenever required by the grand jury, to appear before them monets. and examine witnesses. He shall also draw and sign all indictments and other pleadings, in cases to which it shall be his duty to attend. May appoint SEC. 7. That the district attorney may, in his discretion, deputies and be responsible for appoint one or more deputies, for whose official acts he shall at their acts. all times be responsible. What fees he SEC. 8. That the district attorney shall receive such fees as shall be allowed. may be allowed by law; and until such fees are fixed, he shall receive the same fees as are now allowed county attorneys. county Attor- SEC. 9. That the office of county attorney is abolished from ney's office is abolished. and after the first day of January next; Provided, That the county attorney may prosecute all actions, civil and criminal, commenced prior to said day, to final judgment and execution, and receive the lawful fees therein, the same as if this act had not been passed, or the term of the attorney had not expired. Shall execute a SEC. 10. That such district attorney shall, before entering bond to State, to drcetdgy upon the duties of his office, execute a bond to the State in the penal sum of not less than three thousand dollars, with two or more sufficient securities, to be approved by the judge of the district court of his district, which bond shall be conditioned for the faithful performance of his duties as such officer, and Shall pay over to the proper officers all moneys which moneys.h AUTHENTICATION. 107 shall come into his hands by virtue of his office. He shall also take and subscribe an oath, which shall be endorsed on said Oath to support Constitution. bond, that he will support the Constitution of the United States and the Constitution of the State of Kansas, and that he will faithfully discharge the duties of the said office; said bond Bond and oath to be deposited and oath shall be deposited in the office of the auditor. in Auditor's SEc. 11. That this act shall take effect and be in force from When to take effect. and after its publication. Approved June 4th, A. D. 1861. CHAPTER XVII. (Acts of 1859. Chapter CXXII.) AN ACT relating to the Authentication of Statutes, Records, Office Papers, &c. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. The printed statute book of this Territory, Authorizedstat. utes evidence &c. printed under authority, shall be evidence of the private acts therein contained. SEC. 2. The printed statute books of the several States and [SeeCh. 26-372.] Printed statute Territories of the United States, purporting to be printed by books of other States evidence. the authority of such States and Territories, shall be prima faci~ evidence of the legislative acts of such States or Territories. SEC. 3. Copies of any act, law or resolution contained Certifledcopies of acts, laws,&c, in the printed statute books of the States and Territories of inprintedstatutes of States, the United States, purporting to be printed by authority, and &c., evidence. which are now or may be hereafter deposited in the office of the secretary of this Territory, and required by law to be kept there, certified under the hand and seal of office of the secreItary of this Territory, shall be admitted as evidence. SEc. 4. The printed books containing the acts of the Con- Authorized -9~~~~~ - - printed acts of gress of the United States, purporting to be published by Congress eviauthority of said Congress, or by authority of the United States, shall be prima facie evidence of the laws, public or private, general, local or special, therein contained. SEc. 5. Copies of any act, law or resolution contained in any copies of acts sc - no o hratrdpstdithofceftes certified by Sec. such book, now or hereafter deposited in the office of the secre- tary evidence. 108 AUTHENTICATION. tary of this Territory, certified under the hand and official seal of said secretary, shall be received in evidence. Printed volumes SEC. 6. The printed volumes purporting to contain the laws of laws of States evidence. of a sister State or Territory, shall be admitted as prima facie evidence of the statutes of such States and Territories. Anthorized pub-. SEC. 7. Public documents purporting to be edited or printed Congress evi- by authority of Congress, or either house thereof, shall be evidence to the same extent that authenticated copies of the same would be. Copies of proe SEC. 8. Copies of proceedings before justices of the peace, csedings before justices of the certified by the justice before whom the proceedings are had, shall be evidence of such proceedings. Copies of papers SEC. 9. Copies of all papers on file in the office of the secrein the office of secretary, &c., tary of the Territory, treasurer, and auditor of public accounts, or of any matter recorded in either of said offices, certified under the seal of the respective offices, shall be evidence in all courts of this Territory. When justice out SEC. 10. Copies of proceedings had before a justice of the of office, copies of proceedings peace, where such justice is out of office, certified by the justice who is in possession of the docket and papers of such justice, shall be received in evidence in any court in this Territory. Certified copies SEC. 11. Printed copies of the ordinances, resolutions, rules, of ordinances of city orincorpo- orders and by-laws of any city or incorporated town in the rated towns ev- idence. Territory, published by authority of such city or incorporated town, and manuscript copies of the same, certified under the hand of the proper officer, and having the corporate seal of such city or town affixed thereto, shall be received as evidence. Evidsncofmar. SEC. 12. When by ordinance or customs of any religious riage, &c. society or congregation in this Territory a register is required to be kept of marriages, births, baptisms, deaths or interments, such register shall be admitted as evidence. Copies of regis- SEC. 13. Copies of the register referred to in the preceding ter evidence. section, certified by the pastor or other head of any such society or congregation, or by the clerk or other keeper of such register, and verified by his affidavit in writing, shall be received in evidence. Certified copies SEC. 14. Copies of all bonds required by law to be given by of official bonds evidence. all county officers, collectors of the revenue, clerks of the courts of record in the Territory, register of deeds, and all other officers of or under the Territory, who are required by law to give bond for the faithful performance of their duties, duly AUTHENTICATION. 109 certified by the seal of office of the officer in whose custody such bond is required by law to be kept, may be sued upon, and shall be received in evidence, to all intents and purposes, as the originals themselves. SEC. 15. Copies of contracts entered into by individuals with oertifRdcopies the Territory, or any officer thereof, or with any county, or Jmade within Territory or with any person for the benefit of any county, under or by conty, e. - authority of any law, or- the lawful order of any court in the custody and keeping of any officer, duly certified and attested by the official seal of such officer, or if such officer has no official seal, then verified by the affidavit of such officer, may be sued upon, and shall be received in evidence, to all intents and purposes, as the originals themselves. SEC. 16. Copies of all bonds required by law to be given by coPfes of bonds the executors, administrators, guardians, and commissioners, adidenrat~r for the faithful discharge of their duties, as such, and, the bonds of principals and sureties required to be taken in the course of any judicial proceedings, in any of the courts of this Territory, duly certified by and attested with the seal of office of the officer to whom by law the custody of the same is committed, shall be evidence, to all intents and purposes, as the originals themselves. SEC. 17. Where suit shall be brought upon any copy of a Couret may re bond or contract in writing, mentioned in any of the three pre- duction of the ceding sections, and the defendant- shall plead that he did not execute the bond or other writing, or on motion to the court, such plea or motion being verified by affidavit, the court may, if necessary to the attainment of justice, require the production of the original bond or other writing. SEC. 18. Whenever any written evidence in a cause shall be Translations of foreign papers in a language other than the English, a written translation evidence. thereof into the English language, made by a competent translator, and verified by his affidavit, may be read in evidence instead of the original, if such original be competent evidence. SEc. 19. Copies of-all papers and records required by law to CrtiefiedsOeri. be filed or recorded by any register of deeds, when certified by dence. such officer and authenticated by his seal of office, shall be received in evidence, in all cases, as the originals. SEc. 20. The usual duplicate receipt of the receiver of any Raeeviv' dpn. land office, or, if that be lost or destroyed, or beyond the reach of the party, the certificate of such receiver that the books of his office show the sale of a tract of land to a- certain in8 110 ACTIONS. dividual, is proof of title equivalent to a patent against all but the holder of an actual patent. Signatures pre- SEC. 21. In the cases contemplated in the last section, the Bumed genuine, when. signature of the officer shall be presumed to be genuine until the contrary is shown. of foreign coun. SEC, 22. Copies of records and proceedings in the courts of a foreign country may be admitted in evidence upon being authenticated as follows: First, By the official attestation of the clerk or officer in whose custody such records are legally kept; and, Second, By the certificate of one of the judges or magistrates of such court, that the person so attesting is the clerk or officer legally intrusted with the custody of such records, and that the signature to his attestation is genuine; and, Third, By the official certificate of the officer who has the custody of the principal seal of the government under whose authority the court is held, attested by said seal, stating that such court is duly constituted, specifying the general nature of its jurisdiction, and verifying the seal of the court. SEC. 23. This act to take effect and be inl force from and after the first day of June. Approved February 8, 1859. CHAPTER XVIII. (Acts of 1859, Chapter XY.) AN ACT regulating Actions against Boats. Be it enacted by the Governor and Legislative Assembly Of aoat found in the Territory of Kansas: Stter, this SECTION 1. Any boat found in the waters of this Territory What. is liable: First, For all debts contracted by the master, owner, agent, clerk, or consignee thereof, on account of supplies furnished for the use of such boat, on account of work or service rendered for such boat, or on account of work done, or materials furnished, in building, repairing, fitting out, furnishing, or equipping such boat. Second, For all demands or damages accruing from the non-performance or mal-performance of any contract of affreightment, or any contract relative to the transportation of persons or property, entered into by the master, owner, agent, clerk, or consignee thereof. Third, For all injuries to persons or property by such boat, or by the officers or crew, done in connection with the business of said boat. ACTIONS. 111 SEC. 2. Claims growing out of any of the above causes are Claims for abov liens upon the boat, its apparel, tackle, furniture, and appendages, including barges and lighters, if owned by the owners of the boat, and used therewith at the time the suit is commenced. SEc. 3, Such liens take preference of any claims againstrder of liens the boat itself, or any or all of its owners, growing out of any other causes than those above enumerated; and, as between themselves, they are to be preferred in the following order: First, Those resulting from wages for services rendered on board of such boat, within the year then passed: Provided, suit be commenced within sixty days after the cessation of such labor. Second, Those resulting from contracts made within this Territory. Third, All other causes. SEC. 4. Actions against boats, under the provisions of this TLimitation. chapter, can not be brought after the lapse of one year from the time the cause of action accrued. SEC. 5. The lien attaches from the commencement of the When lien attaches. suit, subject only to such other liens as are of a preferred class.... SEC. 6. The original petition must be in writing, sworn to, Petition warrant and filed with the clerk or justice of the peace, who shall thereupon issue a warrant to the proper officer, commanding him to seize the boat, its apparel, tackle, furniture, and appendages, and' detain the same until released by due course of law. SEC. 7. The usual Summons or notice shall also be issued, Notice. directed to the boat by name,, and served upon the master, owner, agent, clerk, or consignee thereof; and if none of them can be found, it may be served by posting up a copy in some conspicuous part of the boat. The warrant shall be served according to the direction it contains. SEC. 8. Any person interested in the boat may appear for Appoaranoe. the defendant, by himself, his agent, or attorney, and conduct the defense of the suit; and no continuance shall be granted to the plaintiff while the boat is held in custody. SEC. 9. The boat may be discharged, at any time beforeBoat how re final judgment, by the giving of a bond with sureties, to be approved by. the officer serving the warrant, or by the clerk or justice who issued it, in a penalty double the plaintiff's demand, conditioned that the: obligors therein will pay: the amount which may be found -'due to the plaintiff, together with costs. 112 BONDS, NOTES AND BILLS OF EXCHANGE. Ix.cution. SEC. 10. If judgment be rendered for the plaintiff before the boat is thus discharged, a special execution shall be issued against it. If it have been previously discharged, the execution shall issue against the principal and sureties in the bond, without further proceedings. Seriffmay sell SEC. 11. The sheriff may sell any of the furniture or what. appendages of the boat, if by so doing he can satisfy the demand. If he sell the boat itself, he must sell it to the:bidder who will advance the amount required to satisfy the execution for the lowest fractional share of the boat, unless the person appearing for the boat desire a different and equally convenient mode of sale. Furohmer. SEC. 12. If a fractional share of the boat be thus sold, the purchaser shall hold such share or interest jointly with the other owners. Appeal bond. SEC. 13. If an appeal be taken by the defendant before the boat is discharged, as above provided, the appeal bond, if one be filed, will have the same effect in discharging the boat as the bond above contemplated, and execution shall issue against the obligors therein, after judgment, in the same manner. This activon c. SEC. 14. Nothing herein contained is intended to affect the Mulative. right of a plaintiff to sue in the same manner as though the'provisions of this chapter had not been enacted. Petition. SEC. 15. In actions, commenced in accordance with the provisions of this chapter, it is sufficient to allege the contract to have been made with the boat itself. SE-. 16. This act to take effect and be in force from and after the first day of June next. Approved February 2, 1859. -CHAPTER XIX. (Acts of 1:859, Chapter XX.) AN ACT respecting Bonds, Notes, and Bills of Exchange. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Bonds, noteg, AC, SECTION 1. That all bonds, promissory notes, bills of exendormnentandachange, foreign and inland, drawn for any sum or sums of money, certain, and made payable to any person or order, or to any person or bearer, shall be negotiable by indorsement BONDS, NOTES AND BILLS OF EXCHANGE. 113 thereon, if payable to order, and by delivery if payable to bearer, so as to absolutely transfer and vest the property thereof in each and every indorsee or holder, successively; but nothing in this section shall be construed to make negotiable any such bond, note, or bill of exchange, drawn payable to any person or persons, alone, and not drawn payable to order, bearer, or assigns., SEC. 2. That if any such bond, note, or bill of exchange Defense allowed shall be indorsed or delivered, as provided in the preceding when over due. section, after the day on which it is made payable, and the indorsee shall institute an action thereon, against the maker, drawer, or obligor, the defendant shall: be allowed to set up the same defense as he might have done had the same action been instituted in the name and for the use of the person to whom the said bond, note, or bill was originally made payable. SEC. 3. That if any such bond, note, or bill of exchange Proofofpayment allowed shall be indorsed, on or before the day on which the same is when indorsed before due, if made payable, and the indorsee shall institute an action thereon, plaintiff had notice of payment the defendant may give, in evidence at the trial, any money beforeindorseactually paid on such bond, note, or bill of exchange, before the same was indorsed or assigned to the plaintiff, on proving that the plaintiff had notice of the said payment before such indorsement was made and accepted. SEC. 4. That all bonds, notes, or bills of exchange, made Threedaysgrace -I~~~. 5 ~~~~~~allowed. negotiable by this act, shall be entitled to three days grace in the time of payment. SEc. 5. That any indorsee or holder, to whom any such Indorseeorhold. er may bring bond, note, or bill of exchange, made negotiable by this act, suit, when, is made payable by such indorsement or delivery, may insti. tute and maintain an action on such bond, note, or bill, for the recovery of the money due thereon, [against the maker, drawer, or obligor,] or against the indorser, having first used due diligence to obtain payment of the drawer, maker, or obligor. SEC. 6. That the demand of payment from the maker or Whatdeemed due diligence. drawee, on the third day of grace, and notice of non-payment thereof to the endorser or drawer, within a reasonable time thereafter, shall be adjudged due diligence under this act, unless the endorsement shall express other conditions. SEC. 7. No person within this Territory shall be charged as Aoceptance to be in writing, an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent. 114 BONDS) NOTES AND BILLS OF EXCHANGEo. On separate pa- SEC. 8. If such acceptance be written on paper other than per when to bind acceptor. the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration. Unconditional SEC. 9. An unconditional promise, in writing, to accept a promise to gc. cept, effectof. bill before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who, upon the faith thereof, shall have received the bill for a valuable consideration. Refusal to write SEC. 10. Every holder of a bill, presenting the same for acacceptance on bill, dishonor. ceptance, may require that the acceptance be written on the bill, and a refusal to comply with such request shall be deemed a refusal to accept, and the bill may be protested for non-acceptance. Construction of SEC. 11. The preceding sections shall not be construed to preceding see. tions- impair the right of any person to whom a promise to accept a bill may have been made, and who, on the faith of such promise, shall have drawn or negotiated the bill to recover damages of the party making such promise, on his refusal to accept such a bill. Destruction or SEC. 12. Every person upon whom a bill of exchange may refusal to deliv. a bil, deemed be drawn, and to whom the same shall be delivered for acceptance, who shall destroy such bill, or refuse within twenty-four hours after such delivery, or within such period as the holder may allow, to return the bill accepted, or non-accepted to the holder, shall be deemed to have accepted the same. llabgeds and SEC. 13. That all bonds, notes and bills, made negotiable by motes. this act, which shall be drawn for the payment of any sum of money, and such bond, note or bill shall be legally protested for non-acceptance or non-payment, the drawer or drawers, indorser or indorsers, maker or makers, obligor or obligors, shall be subject to the payment of ten per centum damages thereon, if drawn on any person or persons, or body corporate, without the jurisdiction of the United States; and six per centum damages thereon if drawn or made on or by any person or persons, or body corporate, within the jurisdiction of the United States, or within the jurisdiction of this Territory; and the bills shall, in all cases, bear an interest at the rate of ten per centum per annum. from the date of the protest until the money, therein drawn for, shall be fully satisfied and paid, unless a different rate is stipulated in the bill, bond or note. BONDS, NOTES AND BILLS OF EXCHANGE. i15 SEC. 14. That it shall be lawful for any person or persons, Whomalomybesuel having the right to demand any sum of money upon any pro- bond or note. tested bill of exchange, bond or note, as aforesaid, to commence and prosecute an action for principal, damages, interest and charge of protest, against the drawers or indorsers, makers or obligors, jointly or severally, or against either of them separately, and judgment shall and may be given for such principal, damages and charges, and interest upon such principal, after the rate aforesaid, to the time of such judgement, together with costs of suit. SEC. 15. That no damages, on account of protest, shall be Damages on pro.. recoverable on any bill of exchange, foreign or inland, bond recoerable. or note, that may hereafter be drawn or made in this Territory, and which shall be protested for non-acceptance or nonpayment thereof, or which shall contain a waiver of protest, if it shall have been agreed, understood or intended by and between the drawer or indorser, and the payee or indorsee of such bill, bond or note, at the time of its delivery, that the same should or might be paid at any other place than that upon which it was drawn, (or by any other person, firm or company than the person, firm or company upon which it was drawn,) or by whom it was made. SEC. 16. That in all actions upon bonds, notes, bills of ex- Parties designa. change or other instruments of writing, whenever any of the ter, how to b parties thereto are designated by the initial letter or letters, or some contraction of the Christian or first nalne or names, it shall be sufficient to designate such person by the same initial letter or letters, or contraction of the first name or names, instead of stating the Christian or the first name or names in full. SEc. 17. A notarial protest shall be prima facie evidence of N~etrial protest protest 1/ evidence of dea demand and refusal to pay a bond, promissory note or bill mand, a. of exchange, at the time and in the manner stated in such protest. SEC. 18. Nothing in this act shall be so construed as to af- This act not tod feet any suit, now pending, on any bond, note or bill of ex- nc., pribto it change, made negotiable or affected by the laws heretofore in page. force in this Territory, nor to affect the right of any payee, obligee or indorsee of any bond, note or bill of exchange drawn or executed previous to the taking effect of this act. SEC. 19. This Act shall take effect and be in force from and after the first day of June next. Approved February 2, 1859. 116 BRIDGES-CAPITOL GROUNDS. CHAPTER XX. (Acts of 1862.) AN ACT to extend the time for the completion of the Kansas River bridge at Tecumseh. Be it enacted by the Legislature of the State of Kansas: ansas rivor SECTION 1. That the Kansas River Bridge Company are bridge company grantedoane. hereby granted an extension of three years from the first day of May next for the completion of their bridge at Tecumseh. SEC. 2. This Act to take effect from and after its passage. Approved March 6, 1862. CHAPTER XXI. (Acts of 1862.) AN ACT supplementary to an. act entitled "An act to authorize the city of Wyandott to purchase the Wyandott Bridge. Be it enacted by the Legislature of the State of Kansas: Maayorandalder. SECTION 1. The Mayor, Board of Aldermen, Clerk and men are declared to be the Treasurer of the city of Wyandott are hereby declared the rico y. Board of Directors of the Wyandott Bridge Company. Ats done here. SEC. 2. That all acts of the City Council of the city of for lg. Wyandott, heretofore done or attempted to be done in relation to the purchase of the Wyandott Bridge under the provisions of the act to which this is supplementary, are hereby declared legal and valid in law. SEC. 3. That all acts and parts of acts inconsistent with this act and the act to which this is supplementary, are hereby repealed. SEC. 4. This Act shall take effect and be in force from and after its passage. Approved March 6, 1862. CHAPTER XXII. (Acts of 1862.)'Joint resolution No. 6. Tender of block Be it resolved by the Legislature of the State of Kansas, of land in Tope. ka for Capitol purposes accept. That the tender to the State of Kansas of a block of land in ed. the city of Topeka, suitable for Capitol purposes, made by CEMETERIES. 117 Hon. C. K. Holliday as President and Special Trustee of the Topeka Association, is accepted, and that the Auditor of the Auditor to roceive deed and State is hereby authorized to receive the deed thereof in be- have same recorhalf of the State, and cause -it to be properly recorded and preserved. Approved February 7, 1862. CHAPTER XXIII. (Acts of 1861, Chapter III.) AN ACT to provide for the Incorporation of Cemetery Associations. Be it enacted 6y the Legislature of the State of Kansas: SECTION 1. That any number of persons residing in this y wbeforatiodn State, not less than seven, who may desire to form an associa- pforemeterpurtion for the purpose of procuring and holding lands, to be used exclusively for a cemetery or place for the burial of the dead, may meet at such time and place as they may agree, and appoint a chairman and secretary, by the vote of a majority of the persons present at the meeting, and proceed to form an association, by determining on a corporate name by which the Shall have a cor. association shall be called and known; by determining onrpratename. [the] number of trustees to manage the concerns of the association, which number shall not be less than three nor more than nine, and thereupon may proceed to elect, by ballot, the number of trustees so determined on; and the chairman and secretary shall, immediately after such election, divide the Trustees shall be divided into trustees, by lot, into three classes: those in the first class three classes. to hold their office one year, those in the second class two years, and those in the third class three years. The meeting shall also determine on what day in each year the future annual election of trustees shall be held. SEC. 2. The chairman and secretary of the meeting shall, Chairman and secretary shall within three days after such meeting, make a written certifi- sign and acknowcate, and subscribe their names thereto, and acknowledge the cate showing the organization of same before an officer authorized to take proof and acknowl- the association. edgments of conveyances in the county where such meeting shall have been held; which certificate shall state the names of the associates who attend such meeting, the corporate name of the association determined upon by the majority of the persons who met, the number of trustees fixed upon to manage the concerns of the association, the names of the trustees 118 CEMETERIES. chosen at the meeting, their classification, and the day fixed upon for their annual election of trustees, which certificate it shall be the duty of the chairman and secretary'of the meetCertificate to be ~ recorded. to b ing to cause to be recorded in the clerk's office of the countv in which the meeting was held, in a book to be appropriated to the recording of certificates of incorporation. dhen thelly are SEC. 3. Upon such certificate, duly acknowledged as aforedeemed legally incorporated. said, being recorded, the association therein mentioned shall be deemed legally incorporated, and shall have and possess, in its corporate name, the powers of perpetual succession, to sue and be sued, plead and be impleaded, defend and be defended,'oters ofasso- in all the courts in this State, and may have and use a comrnelation. mon seal, and have power to make such by-laws, rules and regulations as they may deem necessary for their government, How the affairs and the proper management of their affairs. The affairs and shall be managed. property of such association shall be managed by the trustees, who shall annually appoint, from among their number, a president and vice-president, and shall also appoint a secretary Treasurer. and treasurer, who shall hold their places during the pleasure of the board of trustees; and the trustees may require the treasurer to give security for the faithful performance of the duties of his office. May hold land SEC. 4. Any association incorporated under this act, may not exceeding three hnndred take, by purchase or devise, and hold, within the county in and twenty acres i which the certificate of their incorporation is recorded, not exceeding three hundred and twenty acres of land. They shall, also, have authority to receive gifts and bequests for the purpose of improving such cemetery. They shall have power to divide the land of the cemetery into lots and subdivisions, for the purposes of the cemetery, and to tax their property for the purpose of its general improvement. Shall havepowver SEC. 5. Such association shall have power to convey, by to convey property. deed or otherwise, any lot or lots of the cemetery for purposes of sepulchre. When such lots shall have been surveyed and Suarvey and plat platted, the survey and plat shall be recorded in the office of shall be recordede register of deeds of the county wherein the same are situated, Iland exempt and shall not be afterwards changed or altered. All the ground and from attach-held by such association for burial purposes, while so held, tion. execu- shall be exempt from public taxation. Every lot sold and conveyed in such cemetery, shall be held by the proprietor, for the purposes of sepulchre only, and shall not be subject to attachment or execution. CITIES AND TOWNS. 119 SEC. 6. All deeds conveying lots in any such cemetery, shall IendDdshall be thC-k 6. All deeds conveying lots in any such cemetery, sbal signed by Presibe signed by the president and secretary, With the seal of the dt and secrecorporation attached. All owners of lots, purchased of any Owners shall such corporation, shall become members thereof, and be en- become members titled to vote in the election of its officers. SEC. 7. This act shall take effect and be in force from and When to take effect. after its publication. Approved June 4, 1861. CHAPTER XXIV. (Acts of 1859. Chapter XXIV.) AN ACT concerning the Plats of Cities and Towns. Be it enacted by the Governor and Legislative Assembly of the Territory of _Kansas: SECTION 1. Whenever any city or town, or an addition to Proprietors of city or town any city or town, shall be laid out, the proprietor or proprie- shall mtake out tors of such city or town, or addition, shall cause to be made out, an accurate map or plat thereof, particularly setting forth and describing: First, All the parcels of ground within such city or town, or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses: and, Second, All lots intended for sale, by numbers, and their precise length and width. SEC. 2. Such map or plat shall be acknowledged by the pro- Map to be ac-:n ~' ~knowledged by prietor, or, if an incorporated company, by the chief officer proper person. thereof, before some court, or other officer authorized by law to take the acknowledgment of conveyances of real estate. SEC. 3. The map or plat, so made, acknowledged and cer- Map to be filed. tified, shall be filed and recorded, in the office of the register of deeds, of the county in which the city or town, or addition, is situate. SEC. 4. The register of deeds shall preserve such map or-registerofdleeds to preserve plat. plat in his office, among the records thereof. SEC. 5. If any person sell, or offer for sale, any lot within IfIotsapld bde any city, town or addition, before the map or plat thereof be out, penalty. made out, acknowledged, filed and recorded, as aforesaid, such person shall forfeit a sum not exceeding three hundred dollars, for every lot which he shall sell or offer to sell. SEC. 6. Such maps and plats, of such cities and towns, and Maps sufficient 120 CITIES AND TOWNS. conveyancefor additions, made, acknowledged, certified, filed and recorded public use. with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended, for public uses in the county in which such city or town, or addition is situate, in' trust and for the uses therein named, expressed or intended, and for no other use or purpose. If map impro- SEC. 7. If any person, his agent or attorney, shall cause a perly made out, penalty. map or plat, of any such city or town, or addition, to be deposited with the register, which does not set forth and describe all parcels of ground, which have been, or shall be promised, or set apart for public uses, and other lots, such person shall forfeit double the value of the ground so promised, or pretended to have been set apart for public uses, and not set forth on the map or plat. Forfeitures, how SEC. 8. The forfeitures arising under this act, may be recovrecovered. ered by action, with costs, in the name of, and to the use of the county, or by indictment. Property liable SEC. 9. The property and effects of the person incurring such forfeiture, may be proceeded against, by attachment or otherwise, and in like manner, and for the like causes, as in ordinary cases of debt. When city or SEC. 10. When any town plat shall be filed and recorded town placed in another county, with the register of deeds of the county, and by reason of the plat to be transferred to that establishment of any new county, or the alteration of any county lines, the city or town shall fall within a different county, such register shall transmit such plat to the register of deeds of the county within which such city or town may be, and it shall thereupon be recorded by him. All cities and SEC. 11. The plats of all cities and towns, which have towns heretofore laid outto le heretofore been laid off, or which may hereafter be laid off on the public lands within this Territory, shall be filed with the register, and recorded as aforesaid, which plats shall accurately set forth the streets, squares, alleys, parks and avenues, and the width and extent thereof, which are intended for public use, and, when so filed, they shall be deemed a sufficient conveyance of such streets, squares, alleys, parks and avenues, to such purposes; and any person occupying, or in anywise obstructing such streets, squares, alleys, parks or avenues, shall be held liable for damages as if such streets, squares, parks, or avenues had been absolutely conveyed to public use, as in the third section specified. plats heretofore SEC. 12. All plats of cities or towns, or of additions thereto, Plats heretofore CLAIMANTS. 121 which have been heretofore filed in the office of the register of filed shall be redeeds, or recorder of the proper county, and not recorded, shall be recorded by such register, and he may collect his fees therefor from the proprietors of such city, town or addition, as any other debt. SEC. 13. This act to take effect and be in force from and after its passage. Approved February 11, 1859. CHAPTER XXV. (Acts of 1862.) AN ACT for the relief of occupying Claimants of Land. Be it enacted by the Legislature ef the State of Kansas-:;SECTION 1. That in all cases any occupying claimants, be- cuPYving ing in quiet possession of any lands or tenements, for which color ofttible such person can show a plain and connected title, in law orerse claiymant proving a better equity, derived from the records of some public office; or be- title, until valu ing in quiet possession of, and holding the same by deed, de- ipovements vise, descent, contract, bond or agreement, from and under any person claiming title, as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded; or being in quiet possession of, and holding the same under sale on execution or order of sale, against any person claiming title as aforesaid, derived from the records of some public office, or by deed duly authenticated and recorded; or being in possession of, and holding any land under any sale for taxes, authorized by the laws of this state, or the laws of the Territory of Kansas; or any person or persons who have made a bona fide settlement and improvement which he, she, or they still occupy, upon any of the Indian lands lying in this [See Act of AdState; or any person in quiet possession of any land, claim- m, s.l ing title thereto, and holding the same under a sale and conveyance made, by executors, administrators or guardians, or by any other person or persons, in pursuance of any order of court, or decree in chancery when lands are or have been directed to be sold, and the purchaser or purchasers thereof have obtained title to, and possession of the same without any fraud or collusion on his, her, or their part, shall not be evicted or turned out of possession, by any person or persons who shall set up and prove an adverse and better title to said lands, 122 CLAIMANTS. until said occupying claimant, his, her, or their heirs, shall be paid the full value of all lasting and valuable improvements made on said land by such occupying claimant, or by the person or persons under whom he, she, or they may hold the same previous to receiving actual notice by the commencement of suit on each adverse claim by which eviction may be effected, Occupying unless such occupying claimant shall refuse to pay the person claimant must so setting up and proving an adverse and better title, the value pay the value ofa the land without of the land without the improvements made thereon, as aforesaid, upon the demand of the successful claimant, or his heirs, Not to apply to as hereinafter provided. Provided, That this act shall not lands of the State,nor of rail- apply to persons occupying and claiming any lands granted to road companies. this State, or granted to, or purchased by, any company to aid in the construction of any works of internal improvement in this State. Of lands soldfor SEC. 2. That the title by which the successful claimant suctaxes. ceeds against the occupying claimant, in all cases of lands sold for taxes, by virtue of any of the laws of this State, or of the Territory of Kansas, shall be considered an adverse and better title under the provisions of the first section of this Act, whether it be the title tunder which the taxes were due, and for which said land was sold, or any other title or claim whatever; Holder of tax ti- and the occupying claimant holding possession of land sold for tie in possession entitled to Salue taxes, as aforesaid, having the deed of a collector of taxes or of improvements county clerk, for such sale for taxes, or a certificate of sale of said land from a collector of taxes or a county treasurer, or shall claim under the person or persons who hold such deed or certificate, or any other title or claim whatever, shall be considered as having sufficient title to said land, to demand the value of improvements under the provisions of the first section of this Act. value of im- SEC. 3. That the court rendering judgment in any case proprovements, how determined. vided for by this act, against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made, and the sheriff and clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other cases; and immediately thereupon the clerk shall issue an order to the sheriff, under the seal of the court, setting forth the name of the jury and the duty to be performed under this act. CLAIMANTS. 123 SEC. 4. That the jury drawn and named in said order shall Jnry svhallivew immediately, on being notified by the sheriff, proceed to view provements. the premises in question, and then and there, on oath or affirmation to be administered by any competent authority, assess the value of all lasting and valuable improvements made as aforesaid, on the lands in-question, previous to the party receiving actual notice as aforesaid, of such adverse claim; and shall also assess the damages, if any, which said land may Shall offset damhave sustained by waste, together with the net annual value of the rents and profits which the occupying claimant may have received from the same, after having received notice of the plaintiff's title by the service of a summons, and deduct the amount thereof from the estimated value of such lasting and valuable improvements; and said jury shall also assess Shallassess the value of the land the value of the land in question, at the time of rendering without majudgment as aforesaid, without the improvements made thereon or damages sustained by waste as aforesaid. SEC. 5. That in case any one or more of the jury named in Talesmen may said order, shall be absent from the county, of kin to either b ".mmno.ed party, or from any other cause disqualified or unable to serve upon such jury, the sheriff shall have power to summon talesmen, as in other cases, who shall be qualified and serve on such jury in the same manner as if originally drawn and named in said order. SE., 6. That the jury shall sign and seal their respectiveReturn. assessments and valuations aforesaid, and deposit the same with the clerk of the court by whom they were appointed, before the first day of the next term of said court after said order is made; and if either party shall think himself or her- Courtmayset self aggrieved by any such assessment or valuation aforesaid, foidgsessuent he or she may apply to the court, at the term to which the~h~w" proceedings are returned, and said court may, upon good cause shown, set aside such assessment or valuation, and order a new valuation and appoint another jury, as hereinbefore provided, who shall proceed in the same manner as hereinbefore directed. SEC. 7. That if the jurors shall report a sum in favor of the If judgment be rendered in faplaintiff or plaintiffs in said action, for the recovery of real vorofplaintiff. property on the assessment and valuation of the valuable and lasting improvements, and the assessment of damages for waste, and the net annual value of the rents and profits, the court shall render a judgment therefor without pleadings, and 124 CLAIMANTS. issue execution thereon as in other cases; or if no excess be reported in favor of said plaintiff or plaintiffs, then, and in Action for mee neeither case, the said plaintiff or plaintiffs shall be thereby profits barred. sif barred from having or maintaining any action for mesne profits. Adversey tclaim-er SEC. 8. That if the jurors shall report a sum in favor of the deed, or pay the occupying claimant or claimants, on the assessment and valusum assessed against him by ation of the valuable and lasting improvements, deducting the jury. therefrom the damages, if any, sustained by waste, with the net annual value of rents and profits which the defendant or defendants may have received after commencement of the action of ejectment as aforesaid, the successful claimant or his heirs, they'being minors, may, at his, or her or their election, either demand of the occupying claimant, the value of the land without improvement, so as aforesaid assessed, and tender a deed of the land in question to the occupying claimant, or he, she, or they may pay the occupying claimant the sum so allowed by the jurors in his favor, within such reasonable time as the court shall allow. On payment, SEC. 9. That if the successful claimant, his heirs, or the writ of possee. sio may issue. guardians of such heirs, they being minors, shall elect to pay, and do pay to the occupying claimant, the sum so reported in his favor by the jurors, within such reasonable time as the court may may have allowed for the payment thereof, then a writ of possession shall issue in favor of said successful claimant, his heirs, or the guardians of such heirs. If occupying SEC. 10. That if the successful claimant, his heirs, or the claimant refuse toreceive valte guardians of said heirs, they being minors, shall elect to reof improvements writ of posses- ceive the value without improvements so as aforesaid assessed, sion issue to be paid by the occupying claimant within such reasonable time as the court may allow, and shall tender a general warranty deed of the land in question, conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money (the value of the land without the improvements) to the successful claimant, his heirs, or their guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful claimant, his heirs, or their guardians. Occupying SEC. 11. That the occupying claimant or his heirs shall in claimant not to be evicted unless no case be evicted from the possession of such land, unless, as CIVIL PROCEDURE, 125 is provided in the two preceding sections, where an applica- mapftion albue of tion is made for the value of improvements under this law; improvement. and, in all cases, where the occupying claimant or claiimants, or his or their heirs, shall have paid into court the value of Ifsuccessful, claimant elect to the lands- in question, without improvements, within the time surrender the land, occupant allowed by the courts, (when an election has been made bymay pay money into court, and the successful claimant or claimants, his or their heirs, or obtain decree of title. guardians as aforesaid, to surrender any tract of land under the provisions of this act,) such occupant or his heirs may, at any time after such payment shall have been made, file his, her, or their petition in the court where such judgment of eviction was obtained, and obtain a decree for the title of such land, if the same has not been previously conveyed to such occupant as aforesaid. SEc. 12. This act to take effect from and after its publication. Approved March 4, 1862. CHAPTER XXVI. (Acts of 1859, Chapter XXV.) AN ACT to establish a Code of Civil Procedure. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. This act shall be known as the Code of Civil Procedure of the Territory of Kansas. SEC. 2. The rule of the common law, that statues in dero- Common law rules inapplicagation thereef are to be strictly construed, has no application ble. to this code. Its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining:justice. SEC. 3. Remedies in the courts of justice are divided into: Remedies, how First, Actions. Second, Special Proceedings. SEC. 4. An action is an ordinary proceeding in a court of Meaning ofaction. justice, by which. a party prosecutes another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. SEC. 5. Every other remedy is a special proceeding. SEC. 6. Actions are of two kinds': First, Civil. Second, Kindsof actions. Criminal. SEC. 7. A -criminal, action is one prosecuted by the Territory Criminal action prosecuted by. 9 126 CIVIL PROCEDURE. as a party, against a person charged with a public offence for the punishment thereof. SEC. 8. Every other is a civil action. Not merged. SEC. 9. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. TITLE I. FORM OF CIVIL ACTIONS. Distinction be- SEC. 10. The distinction between actions at law and suits in suits aol equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place there shall be, But one form of hereafter, but one form of action, which shall be called a civil action. action. Of plaintiff and SEC. 11. In such action, the party complaining shall be defendant. known as the plaintiff, and the adverse party as the defendanut To be no feigned SEC. 12. There can be no feigned issues; but 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 Questionsof fact question of fact to be tried, and such order is the only aur tried by a jury. thority necessary for a trial. TITLE II. TIME OF COMMENCING CIVIL ACTIONS.;(This Title amended by Chapter XXVII.) CHAPTER. 1. Actions in General. Not to apply to SEc. 13. This title shall not apply to actions already como actions already commenced. menced, but the statues now in force, shall be applicable to such cases, according to the subject of the action, and without regard to the form. Rlepeal. SEC. 14. All acts and parts of acts inconsistent with the provisions of this act are repealed. Whtencivil t ac SEC. 15. Civil actions can only be commenced within the tions to be commenced. periods prescribed in this title, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action may be commenced accordingly. CHAPTER 2. Actions for the Recovery of Real Property. Limitation of ac- SEC. 16. An action for the recovery of the title, or possestions on real property. sion of lands, tenements,, or hereditaments, can only be CIVIL PROCEDURE. 127 brought within twenty-one years after the cause of such action shall have accrued. SEC. 17. If a person, entitled to commence any action forlWhen tonhave additional time. the recovery of the title or possession of any lands, tenements or hereditaments, be, at the time his right or title shall first descend or accrue, within the age of twenty-one years, a married woman, insane or imprisoned, every such person may, after the expiration of twenty-one years from the time his right or title first descended or accrued, bring such action within ten years after such disability is removed, and at no time thereafter. SEC. 18. An action for the forcible. entry and detention, or rorcible entry and detainer forcible detention only, of real property, can only be brought within five years within five years after the cause of such action shall have accrued. CHAPTER 3. Actions other than for the Recovery of Real Property. SEC. 19. Civil actions, other than for the recovery of real civil actions oth. property, can only be brought within the following periods ecry ofreal SEC. 20. Within three years: An action upon a speciality, ropertyed ch. cr any agreement, contract or promise: in writing. 27, sec.2.] SEC. 21. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty. SEC. 22. Within two years: An action for trespass upon[Seech. l,sec.2 real property;* an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of the plaintiff, not arising on contracts and not hereinafter enumerated; an action for relief on the ground of fraud-the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. SEC. 23. Within one year: An action for libel, slander, acti~ons ton ~ statute to be assault, battery, malicious prosecution, or false imprisonment;limited by the an action upon a statute for a penalty or forfeiture; but where the statute giving such action presents a different limitation, the action may be brought within the period so limited. SEC. 24. An action upon the official bond or undertaking ofActionsbuood an executor, administrator, guardian, sheriff, or any other offi- miniatoradcer, or upon the bond or undertaking given in attachment, withintenyears' injunction, arrest, or in any case whatever required by 1 28 CIVIL PROCEDURE. statute, can only be brought within ten years after the cause of action shall have accrued, but this section shall be subject to the qualification in section fifteen. Actions for oth- SEC. 25. An action for relief, not hereinbefore provided for, er relief within ten years. can only be brought within ten years after the cause of action shall have accrued. Limitations not SEC. 26. If a person, entitled to bring any action mentioned to run against persons under in this chapter, except for a penalty or a forfeiture, be, at the twenty-one years of age, or other time the cause of action accrued, within the age of twenty-one disability. years, a married woman, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability shall be removed. CHAPTER 4. General Provisions. Actions consid- SEC. 27. An action shall be deemed commenced within the ered commenced at date of sum- meaning of this title, as to each defendant, at the date of the nions, or first publication. summons which is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him; where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication must be regularly made. An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this title, when the party faithfully, properly and diligently endeavors to procure a service; Service must be but such attempt must be followed by service within sixty within sixty days. Limitations not SEC. 28. If, when a cause of action accrues against a person, to run against ~aconding or he be out of the Territory, or has absconded or concealed himconcealed persons. self, the period limited for the commencement of the action, shall not begin to run until he comes into the Territory, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the Territory, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Actions outlaw-ot SEC. 29. Where the cause of action has arisen in another ed elsewhere not valid here. state or country, between non-residents of this Territory, and, by the laws of the state or country where the cause of action arose, an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this Territory. CIVIL PROCEDURE. 129 SEC. 30. If any action be commenced within due time, and atioesnmneybacjudgment thereon for the plaintiff be reversed, or if the plaintiff brought. fail in such action, otherwise than upon the merits, and the time limited for the same, shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure. SEC. 31. In any case founded on contract, when any part of Limitation from date of last paythe principal or interest shall have been paid, or an acknowl-ment edgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought on such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. TITLE III. PARTIES TO CIVIL ACTIONS. SEC. 32. Every action must be prosecuted in the name of Prosecutions in the name of real the real party in interest, except as otherwise provided in sec- party. tion thirty-four; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract. SEC. 33. In the case of an assignment of a thing in action,When set-offs to be good against the action by the assignee shall be without prejudice to any assignee set-off or other defense now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration before due. SEC. 34. An executor, administrator, guardian, trustee of an How executor, guardians or express trust, a person with whom, or in whose name, a con- bgnts may tract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him, the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and Officers, how official bonds may be sued upon in the same way. SEC. 35. When a married woman is a party, her husbandmanmmustwbe joined with her must be joined with her; except when the action concerns her husband. separate property, she may sue without her husband. When ctionsbetwee the action is between herself and her husband, she may sue or husband and wifee sued alone. be sued alone. 130 CIVIL PROCEDURE. Wife may defend SEC. 36. If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also. How action for SEC. 37. The action of an infant must be brought by his an infant must e brought. guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or any person, as the next friend. Guardian liable SEC. 38. The guardian, or next friend, is liable for the costs ifor costs; secur. ity required. of the action brought by him, and when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him. Infant must de SEC. 39. The defense of an infant must be by a guardian fend by guardian. for the suit, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. The appointment cannot be made until after the service of the summons in the action, as directed in this code. Guardian, how SEC. 40. The appointment may be made upon the application appointed. of the infant, if he be of the age of fourteen years, and apply within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action. All persons in SEC. 41. All persons having an interest in the subject of the interest may be joifned aslain- action, and Iin obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. Any person in SEC. 42. Any person may be made a defendant, who has or interest may be defendant. claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. When a lain- SEC. 43. Of the parties to the action, those who are united tiff's consent cannot be ob- in interest must be joined, as plaintiffs or defendants; but if tained, may be made defendant. the consent of one who should have been joined a plaintiff cannot be obtained, he may be made a defendant, the reason being stated in the petition. One or more may SEC. 44. When the question is one of common or general inse for benefit of terest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Oneor moremay SEC. 45. Persons severally liable upon the same obligation be sued at plaintiff's option. or instrument, including the parties to bills of exchange and CIVIL PROCEDURE. 131 promissory notes, may all or any of them be included in the same action, at the option of the plaintiff. SEC. 46. An action does not abate by the death, marriage or When actions do not abate. other disability of a party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife, and in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued Transferred interests may be in the name of the original party, or the court may allow the continued in original name. person to whom the transfer is made to be substituted in the action. SEC. 47. The court may determine any controversy between When other par{'~ ~ ~ ~~~~~~~tth ties must be parties before it, when it can be done without prejudice to the broughtin. rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in. SEC. 48. When, in an action for the recovery of real or per- Persons interested made parsonal property, any person having an interest in the propertytie pon appliapplies to be made a party, the court may order it to be done. SEC. 49. Upon affidavit of a defendant before answer, in any Upon affidavit of a defendant that action upon contract, or for the recovery of personal property a third party claims the subthat some third party, without collusion with him, has or makesj ect ~fation, a claim to the subject of the action, and that he is ready to pay order his appearor dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear, in a reasonable time, and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order, by the sheriff, or such other person as the court may direct, fail to appear, the court may declare How served. him barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all Original defendant discharged. liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit or delivery thereof. ~SEC. 50. The provisions of the last section shall be applica- Sei. 49 applies to sheriff, when. 132 CIVIL PROCEDURE. ble to an action brought against a sheriff, or other officer, for the recovery of personal property, taken by him under execution, or for the proceeds of such property so taken, and sold by him. And the defendant in any such action, shall be entitled to the benefit of those provisions against the party in whose favor the execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property for the recovery of which, or its proceeds, the action is brought, was taken under such process. Actions against SEC. 51. In an action against a sheriff or other officer, for sheriff. the recovery of property taken under an execution and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the cost being given. TITLE IV. THE COUNTY IN WHICH ACTIONS ARE TO BE BRO'UGHT. What action SEC. 52. Action for the following causes must be brought must be brought in the county in in the county in which the subject of the action is situated, which the subjiectof action is except as provided in section fifty-three: First, for the resituated. covery of real property, or of any estate or interest therein. Second, for the partition of real property. Third, for the sale of real property, under a mortgage, lien, or other incumbrance or charge. When in two SEC. 53. If the real property, the subject of the action, be an counties, action brought in entire tract and situated in two or more counties, or if it coneither. sists of separate tracts, situated in two or more counties, the action may be brought in any county, in which any tract or part thereof is situated, unless it be an action to recover the But if action be possession thereof. And if the property be an entire tract, to recover possession. situated in two or more counties, an action to recover the possession thereof, may be brought in either of such counties; but, if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions, Action for spe. brought in the counties where they are situated. An action to ancetobe compel the specific performance of a contract of sale of real brought, when. brought, when estate, may be brought in the county where the defendants, or any of them reside. What actions SEC. 54. Actions for the following causes must be brought must be brought in county wherein the county where the cause, or some part thereof arose: cause arose; recovery of fines. First, an action for the recovery of a fine, forfeiture or penalty, CIVIL PROCEDURE. 133 imposed by a statute, except that when it is imposed for an offence committed on a river, or other stream of water, or road, which is the boundary of two or more counties, the action may be brought in any county bordering on such river, water course or road, and opposite to the place where the offence was committed. Second, an action against a public officer, for an act Against public done by him in virtue or under color of his office, or for a neglect of his official duties. Third, an action on the official bond or undertaking of a public officer. on officialbond. SEC. 55. An action other than one of those mentioned in Against corpc. rations. the first three sections of this chapter, against a corporation created by the laws of this Territory, may be brought in the county in which it is situated or has its principal office -or place of business, or in which any of the principal officers thereof may reside; but, if such corporation be an insurance company, the action may be brought in the county where the cause of Insurapce coruaction, or some part thereof arose. SEC. 56. An action against a railroad company, or an owner Against railroads, &c. of a line of mail stages or other coaches, for any injury to persons or property upon the road or line, or upon a liability as a carrier, may be brought in any county through or into which said road or line passes. SEC. 57. An action, other than one of those mentioned in Against turn the first three sections of this chapter, against a turnpike road company, may be brought in any county in which any part of the road lies. SEc. 58. The provisions of this chapter shall not apply in Territoriallcor. the case of any corporation created by a law of this Territory, prations. whose charter prescribes the place where alone a suit against such corporation may be brought. SEC. 59. An action, other than one of those mentioned in Against nonresidents. the first three sections of this chapter, against a non-resident of this Territory or a foreign corporation, may be brought in, any county in which there may be property of, or debts owing to said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof arose. SEC. 60. Every other action must be brought in the county )ther actions. in which the defendant) or some one of the defendants reside 28-1.] or may be summoned. SEC. 61. In all cases in which it shall be made to appear to Venue changed. 134 CIVIL PROCEDURE. the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county. TITLE V. COMMENCEMENT OF A CIVIL ACTION. CHAPTER 1, 3lianner of commrnencing a Civil Action. How actions are SEC. 62. A civil action may be commenced in a court of to be comnmoinced. record, by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued therein. Defendant enti- SEC. 63. A copy of the petition need not accompany the tied to copy of petiftion or m summons, but the defendant or plaintiff shall be entitled to a copy of the petition, or any other paper filed in the action, upon application to the clerk therefor; and the costs of such copy shall be taxed among the costs in the action. Precire to be SEC. 64. The plaintiff shall, also, file with the clerk of the court a precipe, stating the names of the parties to the action, and demanding that a summons issue thereon. Summons to be SEC. 65. The summons shall be issued by the clerk, shall under seal. be under the seal of the court, from which the same shall issue, Style of action, and shall be signed by the clerk. Its style shall be, " The date and com- a mand. See Con- Trrito of Kansas, stitution,se. See7 Teritory of Kansas, - county," and it shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true, and judgment rendered accordingly; and where the action is for the recovery of money only, there shall be endorsed on the writ the amount to be furnished in the precipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs. Sullmons issued SEC. 66. Where the action is rightly brought in any county, to other counties. according to the provisions of title four, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff's request. Time uof service. SEC. 67. The summons shall be served and returned by the Return of summons. officer to whom it is delivered, except when issued to any other county than the one in which the action is commenced, within ten days from its date, and when issued to another county, shall be made returnable in not less than ten nor more CIVIL PROCEDURE. 135 than sixty days from the date thereof, at the option of the party having it issued. SEC. 68. When a writ is returned "not summoned." other Other writs may, be issued. writs may be issued, until the defendant or defendants shall be summoned; and when defendants reside in different counties, writs may be issued to such counties at the same time. CHAPTER 2. Service of Summons-Actual Service. SEC. 69. The summons shall be served by the officer to whom Service of sfl~,mons may be it is directed, who shall endorse on the original writ the time made, by whom. and manner of service. It may be also served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be endorsed on the writ, when the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of this Territory, the return shall be verified by oath or affirmation. SEC. 70. The service shall be by delivering a copy ofHowperformeld. the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day. SEC. 71. In all cases, the return must state the timeTime'and manner stated in reand manner of service. tnrn. SEC. 72. The officer, to whom the summons is directed, Return to be at time stated. must return the same at the time therein stated. SEC. 73. An acknowledgment on the back of the sum- Ackn~oledgment of service. nmons, or the voluntary appearance of a defendant, is equivalent to service. SEC. 74. A summons against a corporation may be served Summons upon corporations. upon the president, mayor, chairman of the board of directors,, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or usual place of business of such corporation, with the person having charge thereof: SEC. 75. Where the defendant is an incorporated insurance TIsurancetconi company, and the action is brought in a county in which there is an agency thereof; the service may be upon the chief officer of such agency. SEC. 76. Where the defendant is a foreign corporation, ha- Fotreisn corpoing a -managing agent in this Territory, the service may be upon such agent. 136 CIVIL PROCEDURE. Upon milOrs. SEC. 77. When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care or control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone will be sufficient. The manner of service may be the same as in the case of adults. CONSTRUCTIVE SERVICE. Service by pub- SEC. 78. Service may be made by publication in either of lication. Sec. 52 and 53. the following cases: In actions brought under the fifty-second and fifty-third sections of this code, where any or all of the defendants reside out of the Territory; in actions brought to Wills. establish or set aside a will, where any or all of the defendants reside out of the Territory; in actions brought against a Non-residents. non-resident of this Territory, or a foreign corporation, having in this Territory property or debts owing to them, sought Ix threm. to be taken by any of the provisional remedies, or to be appropriated in any way; in actions which relate to, or the subject of which is real or personal property in this Territory, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such Concealment,&c. defendant is a non-resident of the Territory, or a foreign corporation; and, in all actions where the defendant, being a resident of the Territory, has departed therefrom, or from the county of his residence, with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. Affidavit requi- SEC. 79. Before service can be made by publication, an affisite for servsce by publication. davit must be filed, that service of a summons cannot be made within this Territory, on the defendant or defendants, to be served by publication, and that the case is one of those mentioncd in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. Time and man- SEC. 80. The publication must be made six consecutive weeks, ner of publication. in some newspaper printed in the county whei-e the petition is filed, if there be any printed in such county; and if there be not, in some newspaper printed in this Territory, of general circucontents. lation in that county. It must contain a summary statement of the object and prayer of the petition, mention the court CIVIL PROCEDURE. 137 wherein it is filed, and notify the person or persons thus to be served, when they are required to answer. SEC. 81. Service by publication shall be deemed completeWhen public~ation complete. when it shall have been made in the manner and for the time prescribed in the preceding section; and such service shall be eroved by prinproved by the affidavit of the printer, or his foreman or principal clerk, or other person knowing the same. SEC. 82. In all cases where service may be made by publi-oPesofl set.vice cation, personal service of a copy of the summons and complaint may be made out of the Territory. SEC. 83. A party against whom a judgment or order has been Opening ofjudgments and orrendered, without other service than by publication in a news-_o strurendeon paper, may, at any time within three years after the date of the ervice. judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to Notice must be given, and anmake such an application, and shall file a full answer to the pe- swer and affidavit filed. tition, pay all costs, if the court require them to be paid, and make it appear to the satisfaction of the court, by affidavit, that, during the pendency of the action, he had no actual notice thereof, in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which, by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the Title of Purchastitle of any property sold before judgment under an attach- not affcted ment. The adverse party, on the hearing of an application to counter affidavits. open judgment or order, as provided by this section, shall be allowed to present counter affidavits, to show that, during the pendency of the action, the applicant had notice thereof, in time to appear in court and make his defense. SEC. 84. In actions where it shall be necessary to make the When heirs are defendants, aud heirs or devisees of any deceased person defendants, and ittheirresidence shall appear by the affidavit of the plaintiff, annexed to his petition, that the names of such heirs or devisees, or any of them, and their residence, are unknown to the plaintiff, proceedings may be had against such unknown heirs or devisees, without naming them; and the court shall make such order respecting service as may be deemed proper. If service by publication be ordered, the publication shall not be less than: six weeks. SEc. 850 Where the action is against two or more defendants, Actions aainst two or more deand one. or: more shall have been served, but not all of them, fendants, and only part served. 138 CIVIL PROCEDURE.: the plaintiff may proceed as follows: First, if the action be against defendants jointly indebted upon contract, he may proceed against the defendants served, unless the court otherwise direct; and, if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served; and, if they are subject to arrest, against the persons of the defendants served. Second, If the action be against defendants severally liable, he may, without prejudice to his rights against those not served, proceed against the defendants served in the same manner as if they were the only defendants. Actions against SEC. 86. Nothing in this code shall be so constructed as to co-defendants not barred. make a judgment, against one or more defendants jointly or severally liable, a bar to another action against those not served. When sumnons SEC. 87. When the summons has been served, or publication served action pending. made, the action is pending, so as to charge third persons with notice of its pendency; and, while pending, no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff's title. Record of jndg- SEC. 88. When any part of real property, the subject matter ment to be made in the county in of an action, is situated in any other county or counties than iala propertY is the one in which the action is brought a certified copy of the judgment in such action must be recorded in the register of deed's office of such other county or counties, before it shall operate therein as notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice, without record, in the county where it is rendered; but this section shall not apply to actions or proceedings under any statute, now in force, which does not require such record. TITLE VI. JOINDER OF ACTIONS. Kind of actieon SEC. 89. The plaintiff may unite several causes of actions in which may be united. the same petition. whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the following classes: First, The same transaction, or transactions connected with the same subject of action. Second, Contracts, express or implied. Third, Injuries, with or without force, to person and property, or either. Fourth, Injuries to character. Fifth, Claims to recover the possession of personal property, with or without damages for CIVIL PROCEDURE. 139 the withholding thereof. Sixth, Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same. Seventh, Claims against a trustee, by virtue of a contract, or by operation of law. SEC. 90. The causes of action so united must affect all the parties to the action, and not require different places of trial. TITLE VII. PLEADINGS IN CIVIL ACTIONS. CHAPTER 1. Pleadings in General. SEC. 91. The pleadings are the written statements, by thePleadings. parties, of the facts constituting their respective claims and defences. SEC. 92. The rules of pleading, heretofore existing in civilFormer rules of pleadingactions, are abolished; and, hereafter, the forms of pleading, in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code. SEC. 93. The only pleadings allowed are: First, The petition Pleadings allowby the plaintiff. Second, The answer or demurrer by the defendant. Third, The demurrer or reply by the plaintiff. Fourth, The demurrer by the defendant. CHAPTER 2. The Petition. SEC. 94. The petition must contain: First, The name of the what petition must contain. court, and the county in which the action is brought, and the names of the parties, plaintiff and defendant, followed by the word " petition." Second, A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. Third, A demand of the relief to which the party supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated; and, if interest thereon be claimed, the time from which interest is to be computed shall be also stated. SEC. 95. Where the petition contains more than one cause of Causes of action stated separateaction, each shall be separately stated and numbered. y. eparate CHAPTER ~3. Demurrer. SEC. 96. The defendant may demur to the petition only when what demurrer must state. it appears on its face either, First, That the court has no jurisdiction of the person of the defendant, or the subject of the action. Second, That the plaintiff has not legal capacity to 140G CIVIL PROCEDURE. sue. Third, That there is another action pending between the same parties for the same cause. Fourth, That there is a defect of parties, plaintiff or defendant. Fifth, That several causes of action are improperly joined. Sixth, That the petition does not state facts sufficient to constitute a cause of action. demurrer. of SEC. 97. The demurrer shall specify distinctly the grounds of objection to the petition. Unless it do so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. Objections 1 SEC. 98. That when any of the defects enumerated in section ninety-six do not appear upon the face of the petition, the objection may be taken by answer; and, if no objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause for action. Manneg of pro- SEC. 99. When a demurrer is sustained, on the ground of timedfr urns- misjoinder of several causes of action, the court, on motion of joinder. the plaintiff, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the: same shall be proceeded in without further service. Demurrer to one SEC. 100. The defendant may demur to one or more of the or more causes rsidue. t several causes of action stated in the petition, and answer to the residue. CIIAPTER 4. Answer. What answer SEC. 101. The answer shall contain: First, A general or shall contain. specific denial of each material allegation of the petition controverted by the defendant. Second, A statement of any new matter constituting a defence, counter-claim or set-off, in ordinary and concise language, and without repetition. Answer maycontain grounds SEC. 102. The defendant may set forth, in his answer, as of defense, setoff, &c. many grounds of defence, counter-claim and set-off as he may have, whether they be such as have been heretofore denominated To be separate- legal or equitable, or both. Each must be separately stated ly stated. and numbered, and they must refer, in an intelligible manner, to the causes of action which they are intended to answer. Iindsof counter SEC. 103. The counter-claim mentioned in the last section claim. must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in CIVIL PROCEDURE. 141 the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action. SEC. 104. If the defendant omit to set up the counter-claim Omission of setoff loses costs inll or set-off, he cannot recover costs against the plaintiff in any sobseoqcueertacsubsequent action thereon; but this section shall not apply to causes of action which are stricken out of or withdrawn from the answer, as provided in sections one hundred and five and one hundred and twenty-nine. SEC. 105. When it appears that a new party is necessary to Respecting new parties in couna:hfinal decision upon a counter-claim, the court may either per- ter claim. mit the new party to be made by a summons, to reply to the counter-claim, or may direct the counter-claim to be stricken out of the answer, and made the subject of a separate action. SEC. 106. A set-off can only be pleaded in an action founded When set-off may be pleaded. on contract, and must be a cause of action arising upon contract or ascertained by the decision of the court. SEC. 107. When it appears that a new party is necessary to When new party made upon seta final decision upon the set-off, the court shall permit the new of. party to be made, if it also appear that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off. SEC. 108. When cross demands have existed between persons Cross demands not assignable. under such circumstances, that if one had brought an action against the other, a counter-claim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other; but the two demands must be deemed compensated so far as-they equal each other. SEC. 109. The guardian of an infant or person of an un-Answerofguardians shall deny sound mind, or attorney for a person in prison, shall deny, in allmaterialallegations. the answer, all the material allegations of the petition prejudicial to such defendant. CHAPTER 5. Reply. SEC. 110. There shall be no reply, except upon the allega- Reply only to set-offs permittion of a counter-claim or set-off in the answer. ted. SEC. 111. When the answer contains new matter, consti- Hownew matter shall be replied tuting a counter-claim: or set-off, the plaintiff may reply to or demurred to. such new matter, denying, generally or specifically, each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter 10 142 CIVIL PROCEDURE. not inconsistent with the petition, constituting a defense to such new matter in the answer; or he may demur to the same for insufficiency, stating, in his demurrer, the grounds thereof; and he may demur to one or more of such defenses set up in the answer, and reply to the residue. Wlen defendant SEC. 112. If the reply of the plaintiff, to any defense set may demur to reply. up by the answer, be insufficient, the defendant may demur thereto, stating the grounds of such demurrer. CHAPTER 6. General Rules of Pleading. When answer SEC. 113. The answer or demurrer, by the defendant, shall demurrer, and reply to be filed. be filed within twenty days after the day on which the summons is returnable; the reply or demurrer, by the plaintiff, shall be filed within thirty days after the day on which the summons was made returnable; the demurrer by the defendant, to the reply of the plaintiff, shall be filed within forty days after the day on which the summons was made returnable. Court to decide SEC. 114. The court, or any judge thereof in vacation, as to proceedings notin time. may, in his discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time. Pleading must SEC. 115. Every pleading, in a court of record, must be be signed. subscribed by the party, or his attorney. Pleadings to be SEC. 116. Every pleading of fact must be verified by the verified by affiit 116 to affidavit of the party, his agent, or attorney. A pleading, 123 inclusive re- verified as herein required, shall not be used against a party pealed by ch. Se29-1.] 16revivedin any criminal prosecution, or action, or proceedings for a am. ended3 s penalty or forfeiture, as proof of a fact admitted or alleged in such pleading, and such verification shall not make other or greater proof necessary on the side of the adverse party. When verifica- SEC. 117. The verification mentioned in the last section tion not required shall not be required to the answer of a guardian defending for an infant or person of unsound mind, or a person imprisoned, nor in any case where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution. Ver maificade tionmay SEC. 118. If there be several persons united in interest and parties.veral pleading together, the affidavit may be'made by any one of such parties. When affidavit SEC. 119. The affidavit shall be sufficient if it state that the su ff believes he facts stated in the pleading to be tcient. affiant believes the facts stated in the pleading to be true. CIVIL PROCEDURE, SEC. 120. In all cases where the party pleading is a non- Of non-tesidents resident of the county in which the action is brought, or if he filed. shall be absent from the county where the pleading is filed, an affidavit, made before filing the pleading, stating the substance of the facts afterward inserted in the pleading, shall be a sufficient verification. Such affidavit shall be filed with the pleading intended to be verified thereby. SEC. 121. The affidavit verifying pleadings may be madeBefore whom before any person before whom a deposition might be taken, made. may and must- be signed by the party making the same; and the officer before whom the same was taken, shall certify that it was sworn to or affirmed before him, and signed in his presence. The certificate of such officer" signed officially by him, shall be evidence that the affidavit was duly made; that the name of the officer was written by himself; and that he was such officer. SEC. 122. The verification of the pleading does not apply Towhat verification applies. to the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only. SEC. 123. When the affidavit is made by the agent or Whenaffidavit can be made by attorney, it must set forth the reason why it is not made by agent orattor'y. the party himself. It can be made by the agent or attorney only: First, When the facts are within the personal knowledge of the agent or attorney. Second, When the plaintiff is an infant, or of unsound mind, or imprisoned. Third, When the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the agent or attorney. Fourth, When the party is not a resident of, or is absent from, the county. SEC. 124. In the construction of any pleading, for the pur- Pleadings to be pose of determining its effect, its allegations shall be liberally litbuallY conconstrued, with a view to substantial justice between the parties. SEC. 125. All fictions in pleadings are abolished. Fictions abolished. SEC. 126. The title of a cause shall not be changed in any Title not to be of its stages. changed. SEC. 127.- If the action, counter-claim, or set-off be founded Copy of set-of to be filed. on account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with' the pleading. If not so attached and filed, the reason thereof must be shown in the pleading. SEC. 128. If redundant or irrelevant matter be inserted in Redundant mat 144 civiL PROCEDURE. ter to be strick- any pleading, it may be stricken out, on motion of the party on out. prejudiced thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. Counter claim or SEC. 129. The court, at any time before the final submission Set-off may be withdrawn and of the cause, on motion of the defendant, may allow a counternew action brought. claim or set-off, set up inl the answer to be withdrawn, and the same may become the subject of another action; on motion of either partyj to be made at the time such counterclaim or set-off is withdrawn, an action on the same shall be docketed and proceeded in, as in like cases after process served; and the court shall.direct the time and manner of pleading therein. If an action be not so docketed, it may afterward be commenced in the ordinary way. Mannerofplead- SEC. 130. In pleading a judgment, or other determination ing a judgment. of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction. Pleading per- SEC. 131. In pleading the performance of conditions preceformance. dent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading must establish, on the trial, the facts showing such performance. Copy of instru- SEC. 132. In an action, counter-claim, or set-off, founded ment sued on must be filed. upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the indorsements thereon, and to state that; there is due to him, on such account or instrument, from the adverse party, a specified sum, which he Onnegotiable claims, with interest. When others than the makers of a instruments, kindofliabilitypromissory note, or the acceptors of a bill of exchange, are must be set out.parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability. Private statutes SEC. 133. In pleading a private statute, or a right derived may be referred to by title, therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon.take judicial notice thereof. CIVIL PROCEDURE. 145 SEc. 134. In an action for libel or slander, it shall bewhatito ~ state in sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the facts, showing that the defamatory matter was published or spoken of him. SEC. 135. In the actions mentioned in the last section, Defend~tnt may the defendant may allege the truth of the matter chargedcevidence.rin as defamatory, and may prove the same, and any mitigating circumstances, to reduce the amount of damages, or he may prove either. SEC. 136. In an action for the recovery of real property, Description of real property. it shall be described with such convenient certainty as will enable an officer, holding an execution, to identify it. SEC. 137. Every material allegation of the petition, not tternot oncontroverted by the answer, and every material allegation taken asetrue. of new matter in the answer, constituting a counter-claim or ch. 30-2.] set-off, not controverted by the reply, shall, for the purposes of the action, be taken as true; but the allegation of new matter in the answer, not relating to a counter-claim or set-off, or of new matter in the reply, shall be deemed to be controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. Allegations of value, or of amount of damage, shall not be considered as true, by failure to controvert them. SEC. 138. A material allegation, in a pleading, is oneofmaterialalleessential to the claim or defense, which could not be stricken gatious. from the pleading without leaving it insufficient. SEC. 139. Neither presumptions of law, nor matters of Presumptions of law need not be which judicial notice is taken, need be stated in the pleading. stated. SEC. 140. That, if an original pleading be lost, or with- Ifpleading be lost, a copy may held by any person, the court may allow a copy thereof to be be substituted. substituted. CHAPTER 7. Mistakes in Pleading and Amendments. SEC. 141. No variance between the allegation in a pleading Variations beand the proof is to be deemed material, unless it have actually adl proof not misled the adverse party to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged If aparty allege that he has been that a party has been so misled, that fact must be proved to misled, he must make proof. the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just. 146 CIVIL PROCEDURE. Couts maydirectod SEC. 142. When the variance is not material, as provided in the last section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment without cost. Failureofproof. SEC. 143. When, 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 variance within the last two sections, but a failure of proof. Iotition may be SEC. 144. The plaintiffi may amend his petition without amended. leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition. fly amend in SEC. 145. At any time within ten days after the demurrer is ten days after demurrer filed. filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of the filing of an amended pleading shall be forthwith served upon the other party or his attorney, who shall have the same time thereafter to answer or reply thereto, as to an original pleading. Demurrer over- SEC. 146. Upon a demurrer being overruled, the party who ruled. demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay. Court may allow SEC. 147. The court may, before or after judgment, in furpleadings amended before or therance of justice, and on such terms as may be proper, after judgment. 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 by inserting other allegations material to the case, when the amendment does not change substantially the claim or defense. ErrorB to be dis- SEC. 148. The court, in every stage of the action, must disregarded which do not affect regard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect. hen adverse- SEC. 149. If the demurrer be sustained, the adverse party party may a- ne d. may amend, if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct. CIVIL PROCEDURE. 147 SEC. 150. When either party shall amend any pleading or continuance granted on proceeding, and the court shall be satisfied, by affidavit -or amendment, otherwise, that the adverse party could not be.ready for trial,: in consequence thereof, a continuance may be granted to some day in term, or to another term of the court. SEC. 151. When the plaintiff shall be ignorant of the name Defendant may be designated by of a defendant, such defendant may be designated in any any name. pleading or proceeding, by any name or description, and when his true name is discovered, the- pleading or proceeding may be amended accordingly. The plaintiff, in such case, must state in the verification of his petition, that he could not ascertain the true name, and the summons must contain the words, "real name unknown," and a copy thereof must be Personalservi~, served personally upon the defendant. must be made. SEC. 152. Either party may be allowed, on notice, and on Supplemental petitions, when such terms, as to costs, as the court may prescribe, to file afiled. supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply. SEC. 153. Whenever two or more actions are pending in the consolidation of same court, which might have been joined, the defendrant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown, the said several actions shall be consolidated. SEC. 154. The order for consolidation may be made by the Order in vacattion. court, or by a Judge thereof, in vacation. TITLE VIII. PROVISIONAL REMEDIES. CHAPTER 1. Arrest and Bail. SEc. 155. A defendant in a civil action can be arrested, be- Ofarrest. fore and after judgment, in the manner prescribed by this code, Rnd not otherwise; but this provision does not apply to proceedings for contempt; nor does it apply to actions or judgments prosecuted in the name of the Territory of Kansas to recover fines or penalties for crimes, misdemeanors or offenses. SEc. 156. An order for the arrest of the defendant, shall be Order of arrest made by clerk, made by the clerk of the court, in which the action is brought, ol aidavit of the plaintiff. when-their is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, muade before any Judge of any court of the Territory, or clerk thereof, or Justice of the Peace, 148 CIVIL PROCEDURE. stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and establishing one Fahcts to IfbeC or more of the following particulars: First, That the defendvit. ant has removed, or begun to remove any of his property out of the jurisdiction of the court, with intent to defraud his creditors. Second, That he has begun to convert his property, or a part thereof; into money, for the purpose of placing it beyond the reach of his creditors. Third, That he has property, or rights of action, which he fraudulently conceals. Fourth, That he has assigned, removed or disposed of, or has begun to dispose of his property, or a part thereof, with intent to defraud his creditors. -Fifth, That he fraudulently contracted the debt, or incurred the obligation, for which suit is about to be, or has been brought. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars. Security to be SEC. 157. The order of arrest shall not be issued by the given by plaintiff. clerk, until there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking to the effect, that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest, if the order be wrongfrilly obtained, not exceeding double the amount of the plaintiff's claim stated in the affidavit. Order may ac- SEC. 158. The order may be made to accompany the sumcompany summons. mons, or at any time afterward, before the judgment. Orderofarrest'. SEC. 159. The order of arrest shall be addressed and degiven to sheriff, what it shall livered, with a copy of the affidavit, to the Sheriff; the order state. shall state the name of the parties, the court in which the action is brought, and the amount of the plaintiff's claim specified in the affidavit, and shall require the Sheriff to arrest the defendant, and hold him to bail in double the sum stated in the affidavit, and to make return of the order on a day to be named therein, with the undertaking of the bail, if any be given. rder. d of SEC. 160. The return day of the order of arrest, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterward, it shall be fifteen days after it is issued. Howsheriffshall SEC. 161. The Sheriff shall execute the order by arresting execute order. the defendant, and delivering to him a copy thereof, and of Alias orders. the affidavit. If the defendant cannot be found before the return day, the plaintiff shall be entitled to further orders, CIVIL PROCEDURE. 149 without another affidavit or undertaking until the defendant is arrested; but orders of arrest shall not be issued to any other than the county in which the action is brought. SEC. 162. The defendant, when arrested, shall be committed Commit to jail. by the Sheriff to the jail of the county, and kept in custody until discharged by law. SEC. 163. The defendant may, before or after giving bail, Discharge upon deposit in the hands of the Sheriff, or in court, the amout of money mentioned in the order of arrest; whereupon he shall be discharged, or his bail, if any be given, shall be released. SEC. 161. The Sheriff shall pay into court the money re- Sheriff to pay into court. ceived by him in lieu of bail. If received in vacation, he shall pay it in on the first day of the next term; if received during a term, he shall pay it in immediately. SEC. 165. The court shall make proper orders for the safe Orders for safe keeping of Monkeeping of money deposited in lieu of bail. It may direct the ng f Sheriff to keep the money, and, after final judgment in the action, shall order it to be paid to the party entitled thereto, according to the result. SEC. 166. Money so deposited with the Sheriff, in lieu of Sheriff'soficial bail, or directed by the court to be kept by him, shall be held responsibility upon his official responsibility; and he and his sureties shall be liable, and may be proceeded against for any default in relation- thereto, as in other cases of delinquency. SEC. 167. Bail may be given by the defendant on his arrest, Bail, when giv. or at any time afterward, before judgment. It shall be done by causing one or more sufficient sureties to execute a written undertaking to the plaintiff, in the presence of the Sheriff, to the effect that, if judgment shall be rendered in the action against the defendant, he will render himself amenable to the process of the court thereon. The undertaking, when accepted, shall be returned to the clerk's office, and the defendant discharged. SEC. 168. The plaintiff or his attorney may object to the Objections to bail may be bail, for insufficiency, at any time within ten days after the made within ten days. undertaking has been given. Within such time, he shall serve upon the Sheriff a written notice that he does not accept the bail, or he shall be deemed to have accepted it, and the Sheriff shall be exonerated froln liability. When the undertaking is given after return of arrest, the plaintiff shall have notice thereof. SEC. 169. On the receipt of such notice, the Sheriff or de- Justification of CIVIL PROCEDURE., fendant may, within ten days thereafter, give, to the plaintiff, or his attorney, notice, in writing, ot the justification of the same or other bail, before a Judge or clerk of the court in which the action is brought, a Probate Judge, or Justice ofl the Peace, at a specified time and place; the time to be not less than five, nor more than ten days thereafter. In case other bail be given, there must be a new undertaking. Bail to beexam- SEC. 170. For the purpose of justification, each of the bail ined onl oath. must attend before the proper officer, at the time and place mentioned, and may be examined on oath or affirmation touching his sufficiency, in such manner as the officer may think proper. Whln fonll sluf- SEC. 171. If the officer find the bail sufficient, he shall enlicieut, dorse his allowance on the undertaking and cause the same to be filed with the clerk, and the sheriff shall thereupon be discharged from liability. whell Sherif SEC. 172. After being arrested, if the defendant escapes or be rescued, or bail be not taken, or be adjudged insufficient, or a deposit be not made, the sheriff shall be liable as bail. But he may discharge himself from liability by putting in sufficient bail at any time before judgment. Retun, not SEC. 173. The return of'not found," upon an execution tolund " sufficielt to nix,ia- against the body of the defendant shall be necessary to fix the liability of the sheriff as bail, which liability shall be the amount of the judgment, interest and costs. This liability shall be enforced only in a separate action against him, or against him and his sureties on his official bond, as in other cases of delinquency. lBaeil lilel m to SEC. 174. The bail adjudged insufficient, shall be liable to sheriff for damg~ee.s the sheriff for the damages he may sustain by reason of such insuffi ciencv. How liability SEC. 175. The liability of the bail shall be fixed in the manner provided in section one hundred and seventy-three, for fixing the liability of the sheriff as bail, and the bail can be proceeded against in an action only. Sur render of de- SEC. 176. A surrender of the defendant to the sheriff of the felidant to disharlge Fii. county in which he was arrested, with a delivery of a certified copy of the undertaking of the bail, whether such surrender be made by the defendant himself, or by his bail, shall discharge the bail. Such surrender may be made at any time before the return day of the summons in an action against the bail. The sheriff shall give to the bail a written acknowvledgment of the surrender, and hold the defendant in his custody, upon said CIVIL PROCEDURE. 151 copy of the undertaking of the bail, as upon an order of arrest. On the production of the sheriff's acknowledgment of the sur- Sherifftoac- knowledge surrender to the clerk of the court, an exoneration of the bail shall render. be entered on his undertaking. SEC. 177. For the purpose of surrendering the defendant, the When bail may arrest. bail, at any time or place, before he is finally charged, may himself arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. SEc. 178. The bail will be exonerated by the death of theBe ilexoneradefendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to surrender himself amenable to the process of the court, or by his surrender to the sheriff of the county in which he was arrested in execution thereof, within the time fixed in section one hundred and seventy-six, or within such further time as the court, in which the action is pending, may allow. SEC. 179. If money be deposited by the defendant on his dis- k diln mdboneyt charge, bail may be given and justified, upon notice as pre-refunded scribed in section one hundred and sixty-nine, at any time before judgment; and thereupon the court in which the action is brought, on being satisfied that the bail has been given and adjudged sufficient, shall direct that the money deposited be refunded to the defendant, and it must be refunded accordingly. SEc. 180. If, at any time before or after judgment against Proceedings in error. the bail, proceedings in error are commenced, on the judgment against the principal, in the suit in which their undertaking was taken, the court may, on motion, stay proceedings against such bail, for a reasonable time, on their paying all the costs that have accrued against them; and if, on such proceedings, the judgment against the principal shall be reversed, and the principal discharged from said suit, the bail shall be discharged from the undertaking. SEC. 181. A defendant arrested may, at any time before the Application for order to vacate justification of the bail, apply, on motion, to the court in which arrest. the suit is brought, if in session, and, in vacation, to a judge thereof, to vacate the order of arrest, or to reduce the amount of the bail. Reasonable notice of such motion must be giveli to the plaintiff. SEc. 182. If the motion be made upon affidavits on the part Plaintiff may of the defendant, but not otherwise, the plaintiff may oppose ose the same, by affidavits or other evidence, in addition to that on. which the order of arrest was made. 152 CIVIL PROCEDURE. ilees iable SEC. 183. Any person causing another to be committed to first instance. jail, under the provisions of this chapter, shall be liable, in the first instance, for the jail fees, and shall, if required by the jailor, pay such fees weekly, in advance; and such fees, so paid, shall be a part of the costs of the case. CHAPTER 2. Replevin of Property. Plaintiff may SEC. 184. The plaintiff, in an action to recover the possession claim immediate Iossession. of specific personal property, may at the commencement of the suit, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter. Order for deliv- SEC. 185. An order for the delivery of property, to the plaincry made by clerk, when. tiff, shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the Amended by Ch. plaintiff, his agent or attorney, showing: First, A description Amended Ch.31- of the property claimed. Second, That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. Third, That the property is wrongfully detained by the defendant. Fourth, That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process, issued against said plaintiff; or, Fifth, If taken in execution, or on any order or judgment against the plaintiff, that it is exempt by law from being so taken. To whom snch SEC. 186. The order for the delivery of the property to the order shall be addressed, plaintiff, shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order, on a day to be natmued therein. Time of return SEC. 187. The return day, of the order of delivery, when of order. issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued. How order to be SEC. 188. The sheriff shall execute the order, by taking the executed. property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such copy at his usual place of residence. CIVIL PROCEDURE. 153 SEC. 189. The sheriff, or other officer, shall not deliver to the Plaintiff to give security for plaintiff, his agent, or attorney, the property so taken, until prosecution. there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect, that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, and return the said property to the defendant, if return thereof be adjudged. The undertaking shall be returned with the order. SEC. 190. For the purpose of fixing the amount of the under- Fixing the amount of untaking, the value of the property taken shall be ascertained by dertaking the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof. SEC. 191. If the undertaking required by section one hun- Security tobe givenwithin dred and eighty-nine be not given within twenty-four hourstwenty-four hours. from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant; and, if the sheriff or other officer deliver any property, so taken, to the plaintiff, his agent or attorney, or keep the same from the deSheriff liable. fendant, without taking such, security, within the time aforesaid, or, if he take insufficient security, he shall be liable to the defendant in damages. SEC. 192. The defendant may, within twenty-four hours from Defendant may object to sureties the time the undertaking, referred to in the preceding section, is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he must be deemed to have waived all objections to them. When the defendant excepts, the sureties must justify upon notice, as bail on arrest. The sheriff or other officer shall be respon- Sleriffresponsisible for the sufficiency of the sureties, until the objection to them is waived, as above provided, or until they justify. The property shall be delivered to the plaintiff, when the undertaking required by section one hundred and eighty-nine has been given. SEC. 193. If the property has been delivered to the plaintiff, Jury trial for and judgment rendered against him, on demurrer, or if hei otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impannel a jury to inquire into the right of property, and right of possession of the defendant to the property taken. SEC. 194.- In an action, under this chapter, to recover the Judgeomet say be for possession possession of personal property, judgment for the plaintiff may or recovery of 154 CIVIL PROCEDURE. posession, ofor be for the possession, or for the recovery of possession or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. Aniordertmaynbe SEC. 195. An order may be directed to any other county other county. than the one in which the action is brought, for the delivery of the property claimed. Several orders may issue at the same time, or successively, at the option of the plaintiff; but only one of them shall be taxed in the costs, unless otherwise ordered by the court. Officer may SEC. 196. The sheriff or other officer in the execution of the break open building, when. order of delivery, may break open any building or enclosure, in which the property claimed, or any part thereof, is concealed; but not until he has been refused an entrance into said building or enclosure and the delivery of the property, after having demanded the same. NO SIit coin SEC. 197. No suit shall be instituted on the undertaking menced before texecutiu, ti re given under section one hundred and eighty-nine, before an exfied. ecution issued on a judgment in favor of the defendant in the action, shall have been returned, that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county. Replevin isnaed SEC. 19g. Any order for the delivery of property, issued without affidavit to be set asido. under section one hundred and eighty-five, without the affidavit required thereby, shall be set aside at the cost of the clerk issuing the same, and such clerk, as well as the plaintiff, shall also be liable in damages to the party injured. CHAPTER 3. Attachmnent. ARTICLE 1. General Attachments. SUBDIVISION 1. Grounds of Attachment. When attach- SEC. 199. The plaintiff, in a civil action for the recovery of mernt may issue. money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated. First, When the defendant is a foreign corporation, or a non-resident of this territory: or, Second, has absconded with the intent to defraud his creditors: or, Third, Has left the county of his residence, to avoid the CIVIL PROCEDURE. 1. 5 service of a summons: or, Fourth, So conceals himself, that a summons cannot be served upon him: or, Fifth, Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors: or, Sixth, Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors: or, Seventh, Has property, or rights in action, which he conceals: or, Eighth, Has assigned, removed, or disposed of, or is about to dispose of his property, or part thereof, with the intent to defraud his creditors: or, Ninth, Fraudulently contracted the debt, or incurred the obligation for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or non-resident of this Territory, for any claim other than a debt or demand arising upon contract, judgment or decree. SUBDIVISION 2. flow Attachment is Obtained. SEC. 200. An order of attachment shall be made by the clerk whlen olrrby may be issued by of the court in which the action is brought, in any case men- clerk. tioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: First, The nature of the plaintiff's claim. Second, That it is just. Third, The amount which the affiant believes the plaintiff ought to recover; and, Fourth, The existence of some one of the grounds for an attachment enumerated in the preceding section. SEC. 201. In all cases, the order of attachment shall not be Undertaking. issued -by the clerk, until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages, which he may sustain by reason of the attachment, if the order be wrongfully obtained. SEC. 202. The order of attachment shall be directed and To be direte to sheriff. delivered to the sheriff. It shall require him to attach the Itn.eqluirel,,ts lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable costs of the action, not exceeding fifty dollars. 156 CIVIL PROCEDURE. Orders of attach- SEC. 203. Orders of attachment may be issued to the sheriffs ment to be is sued to sheriffs of different counties; and several of them may, at the option of different counties. of plaintiff be issued at the same time, or in succession; but such only as have been executed shall be taxed in the costs, unless otherwise directed by the court. leturn of order SEC. 204. The return day of the order of attachment, when samle as sullmols.; issued at the commencement of the action, shall be the same as that of the summons. When issued afterwards, it shall be twenty days after it issued. SUBDIVISION 3. Executtion and Retuqrn thereof. Several attach. SEC. 205. W\here there are several orders of attachment, ments to be ex. ecutedl in their against the same defendant, they shall be executed in the order order. in which they were received by the sheriff. lHon executed. SEC. 206. That the order of attachment shall be executed by the sheriff without delay. He shall go to the place where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer, with two householders, who shall be first sworn, or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and householders, and returned with the order. Manner of at- SEC. 207. That when the property attached is real property, taching real and personal prop- the officer shall leave with the occupant thereof, or, if there be erty. no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and can be come at, he shall take the same into his custody, and hold it subject to the order of the court. Propert may be SEC. 208. That the sheriff shall deliver the property attached kept upon giving security. to the person in whose possession it was found upon the execution, by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court, that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound. Orderto gar- SEC. 209. When the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to, and does UC. 26.] CIVIL PROCEDURE. 157 believe, that any person or corporation, to be named, and within the county where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall leave with such garnishee a copy of the order of attachment, with a written notice, that he appear in court, at the return of the order of attachment,_ and answer, as provided herein. SEC. 210. The copy of the order and notice shall be served How served. upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president, or other head of the same, or the secretary, cashier or managing agent thereof. SEC. 211. Different attachments of the same property mayInventory. be made by the same officer, and one inventory and appraisement shall be sufficient, and it shall not be necessary to return the same with more than one order. SEC. 212. That where property is under attachment, it shall How attached subsequently. be attached under subsequent orders, as follows: First, If it be real property, it shall be attached, in the manner prescribed in section two hundred and seven. Second, If it be personal property, it shall be attached, as in the hands of the officer, and subject to any previous attachment. Third, If the same person or corporation be made a garnishee, a copy of the order and notice shall be left with him, in the manner prescribed in section two hundred and nine. SEC. 213. That the officer shall return, upon every order of of the return. attachment, what he has done under it. The return must show the- property attached,; and the time it was attached; when garnishees are served, their names and the time each was served must be stated. The officer shall, also, return with the order, all undertakings given under it. SEC. 214. That an order of attachment binds the property Order of attach attached, from the time of service, and the garnishee shall property. stand liable to the plaintiff in attachment for all property, moneys and credits in his hands, or due from him to the defendant, from the time he is served with the written notice, mentioned in section two hundred and nine; but where prop- Consignee'slien. erty is attached in the hands of a consignee, his lien thereon shall not be affected by the attachment. 15 8 CIVIL PROCEDURE, [CH. 26. SuBDIVISION 4. Disposition of Attached Property. R.ceiver ap- SEC. 215. The court, or any judge thereof during vacation? pointed. Oath, bond, &c. may, on application of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty, and shall give an undertaking to the Territory of Kansas, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of such court, for the faithful performance of his duty as such receiver, and to pay over all money and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct. ReceiTer's duty, SEC. 216. Such receiver'shall take possession of all notes, due bills, books of account, accounts, and all other evidences of debt that have been taken, by the sheriff or other officer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as such receiver; but in such actions, no right of defence shall be impaired or affected. Receiver shall SEC. 217. Such receiver shall forthwith give notice of his apgive notice. pointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, by copy personally or by copy left at the residence of the debtor or debtors; and from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of moneys or credits in their hands, or due from them to the defendant in attachment, and shall account therefor to the receiver. Report proceed- SEC. 218. Such receiver shall, when required, report his in Ugs. proceedings to the court, and hold all moneys collected by him, and property which may come into his hands subject to the order of the court. Sheriff to act as SEC. 219. Where a receiver is not appointed by the court receiver, when. or a judge thereof, as provided in section two hundred and fifteen, the sheriff or other officer attaching the property, shall have all the powers and perform all the duties of a receiver appointed by the court or a judge, and may, if necessary, commence and maintain actions is his own name as such officer. He may be required to give security other than his official undertaking. Preservation of SEC. 220. The court shall make proper orders for the presproperty. Cai. 26.] CIVIL PROCEDURE. 159 ervation of the properly during the pendency of the suit; it Orders of sale, how made. may direct a sale of property, when, because of its perishable nature, or of the costs of keeping it, a sale will be for the benefit of the parties. In vacation, such sale may be ordered by the judge of the court. The sale shall be public, after such advertisement as is prescribed for the sale of like property on execution, and shall be made in such manner and upon such terms of credit, with security, as the court or judge, having regard to the probable duration of the action, may direct. The proceeds, if collected by the sheriff; with all theProceecd of sal. money received by him from garnishees, shall be held and paid over by him, under the same requirement and responsibility of himself and sureties, as are provided in respect to money deposited in lieu of bail. SUBDIVISION 5. Proceedings upon Attachment. SEC. 221. If the defendant or other person on his behalf, at Attachment discharged and any time before judgment, cause an unidertaking to be exe- property returned upon security cuted to the plaintiff, by one or more sureties, resident in the beinggiven county, to be approved by the court, in double the amount of the plaintiff's claim, as stated in his affidavit, to the effect that the defendant shall perform the judgment of the court, the attachment in such action shall be discharged, and restitution made of any property taken under it or the proceeds thereof. Such undertaking shall, also, discharge the liability of a garnishee in such action, for any property of the defendant in his hands. SEC. 222. The undertaking mentioned in the last section Sreties tobe may, in vacation, be executed in the presence of the sheriff appr~oved having the order of attachment in his hands, or after the return of the order, before the clerk, with the same effect as if executed in court, the sureties in either case to be approved by the officer before whom the undertaking is executed. SEC. 223.'The garnishee shall appear as follows: If the Appearance and answer of garorder of attachment be returned during a term of the court, nishee.and twenty days before the close:thereof, he shall appear at. that term; if the order be returned during vacation, he shall: appear at the term next after its return. He shall appear -and answer, under oath, all questions put to him, touclhing the property,' of every description, and credits of the d!efendant, in his possession or under his control, and he shalli disclose truly the amount owing by him to the defendant, whether due 160 CIVIL PROCEDURE. [Cu. 26. or not; and, in the case of a corporation, any stock therein held by or for the benefit of the defendant, at or after the service of notice. ayivebho myr- SEC. 224. That a garnishee may pay the money owing to iff and be discharged without the defendant by him, to the sheriff having the order of atrcosts. tachment, or in the court. He shall be discharged from liability to the defendant for any money so paid, not exceeding the plaintiff's claim. He shall not be subject to costs, beyond those caused by his resistance of the claim against him; and, if he disclose the property in his hands, or the true amount owing by him, and deliver and pay the same, according to the order of the court, he shall be allowed his costs. Non-anpearance SEC. 225. If the garnishee do not appear in court, and anof garnishee, contempt. swer as required by section two hundred and twenty-three, the court may proceed against him by attachment, as for a contempt. Court may order SEC. 226. If the garnishee appear and answer, and it is disdelivery of prop. erty or payment covered, on his examination, that, at or after the service of the order of attachment and notice upon him, he was possessed of any property of the defendant, or was indebted to him, the court may order the delivery of such property, and the payment of the amount owing by the garnishee into the court, or the court may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming, as the court may direct. When garnish- SEC. 227. If the garnishee fail to appear and answer, and ee's statement not satisfactory. his disclosure is not satisfactory to the plaintiff, or, if he fail to comply with the order of the court to deliver the property and pay the money owing into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, by filing a petition in his own name, as in other cases, and causing a summons to be issued upon Plaintiff may it, and thereupon such proceedings may be had as in other proceed against garnishee. actions, and judgment may be rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for the costs of the proceedings against the garnishee. If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the ac %JnM. 26.] CIVIL PROCEDURE. 161 tion that such disclosure was incomplete, the plaintiff shall pay the costs of such action. The judgment in this action may be enforced as judgments in other cases. When the claims of plaintiffs in attachment are satisfied, the defendant in attachment may, on motion, be substituted as the plaintiff in this judgment. SEC. 228. Final judgment shall not be rendered against the Fial judgment ~ against gat. garnishee, until the action against the defendant in attach-a.isllet ment has been determined; and if, in such action, judgment Am3ended Ch. be rendered for the defendant in attachment, the garnishee shall be discharged and recover costs. If the plaintiff shall recover against the defendant in attachment, and the garnishee shall deliver up all the property, moneys and credits of the defendant in his possession, and pay all the moneys from him due, as the court may order, the garnishee shall be discharged, Costs paid out of property, and the costs of the proceedings against him shall be paid out of the property, and moneys so surrendered, or as the court may think right and proper. SEC. 229. If judgment be rendered in the action for the de- Attachment discharged. fendant, the attachment shall be discharged, and the property attached, or its proceeds, shall be returned to him. SEc. 230. If judgment be rendered for the plaintiff, it shall Judgment, how be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the courtn under the same restrictions and regulations, as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon, for the residue, in all respects as in other cases. Any surplus of the attachled property or its proceeds shall be returned to the defendant. SEC. 231. The court may compel the delivery to the sheriff, court may col. pet delivery of for sale, of any of the attached property for which an under- attached property. taking may have been given, and may proceed sunmmarily, on such undertaking, to enforce the delivery of the property, or the payment of such sum as may be due upon the undertakinng, by rules and attachments, as in cases of contemlpt. 162 CIVIL PROCEDUIE,. [CH. 26. Order to shoriff SEC. 232. The court may order the sheriff to repossess himto repossess. self, for the purpose of selling it, of any of the attached property, which may have passed out of his hands, without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property, as he would have under an order of attachment, Peronalroper. SEC. 233. If personal property, which has been attached, ty claimed by others. be claimed by any person other than the defendant, it shall be the duty of the officer to have the validity of such claim tried; and such proceedings may be had thereon, with the like effect, as in case the property had been seized upon execution, and claimed by a third person. - Sescral attach- SEC. 234. Where several attachments are executed upon the ments, referen co as to priorities, same property, or the same persons are made garnishees, the court, on motion of any of the plaintiffs, may order a reference, to ascertain and report the amounts and priorities of the several attachments. SuBDIVISION 6. General Provisions. When court ac- SEC. 235. From the time of the issuing of the order of quires jurisdic. tiou. attachment, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under this chapter; and if, after the issuing of the order, the defendant, being a person, should die, or a corporation, and its charter should expire by limitation, forfeiture or otherwise, the proceedings shall be carried on; but, in all such cases, Leal represeon- other than where the defendant was a foreign corporation, his tatives made defeldamlts. legal representatives shall be made parties to the action. Additional se- SEC.'236. The defendant may, at any time before Judgment, curity. after reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's uDdertaking has removed firom this Territory, or is not sufficient for the amount thereof, it may vacate the order of the attachment, and direct restitution of any property taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff. Motie for diatt- SEC. 237. That the defendant may, at any time before jLdghiclYtA t ment, upon reasonable notice to the plaintiff, move to discha'ge an attachment, as to the whole or a part of the property attached. ois aliavijtF. SEC. 23R. That, if the motion be made upon affidavits, on Ca. 26]. CIVIL PROCEDURE. 163 the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to that on which the order of attachment was made. ARTICLE 2. Attachments in certain Actions. SEC. 239. Where a debtor has sold, conveyed, or otherwise Fraudulent sale disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or conveyance or disposition of his property, with such fiaudulent intent; or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts, a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor. SEC. 240. The attachment, authorized by the last section, Plaintiff to maLe may be granted by the court in which the action is brought, taching. or by a judge thereof; but, before such action shall be brought, or such attachment shall be granted, the plaintiff, or his agent, or attorney, shall make an oath in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same will become due, and the existence of some one of the grounds for an attachment enumerated in the preceding section. SEC. 241. If the court or judge refuse to grant an order OfAttachment dicharged without attachment, the action shall be dismissed, but without preju-prejudice. dice to a future action; and, in all such actions, application for an attachment must be made. SEC. 242. The order of the court or judge granting the at- Order to specify amount of claim tachment shall specify the amount for which it is allowed, not exceeding a sum sufficient to satisfy the plaintiff's claim, and the probable costs of the action. SEC. 243. The order of attachment, as granted by the CourtPlaintiff to give or judge, shall not be issued by the clerk until there has beensecuritY. executed, in his office, such undertaking, on the part of the plaintiff, as is directed by section two hundred and one. SEC. 244, That the plaintiff in such action shall not have Judgment given when the claim judgment on his claim before it is due, and the proceedings on is due. attachment may be conducted without delay. SEC. 245. That the proceedings in the first article of this 164 CIVIL PROCEDURE. [CH. 26. chapter, subsequent to section two hundred and one, shall, so far as they are applicable, regulate the attachment authorized by this article. CHAPTER 4. Injunction. InjUnction, SEC. 246. The injunction provided by this code is a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy, and, when so allowed, it shall be by order. The writ of injunction is abolished. When to be SEC. 247. When it appears, by the petition, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may, also, be granted in any case where it is specially authorized by statute. On ctiommencing SEC. 248. The injunction may be granted at the time of quently. commencing the action, or any time afterwards, before judgment by the district court or the judge thereof, or, in his absence from the county, by the probate judge, upon its appearing satisfactorily to the coult or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto. Defendant to be SEC. 249. If the court or judge deem it proper that the deheard. fendant or any party to the suit should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose, at a specified time and place, and may, in the mean time, restrain such party. ednbnt restrained SEC. 250. An injunction shall not be granted against a party who has answered, unless upon notice; but such party may be restrained urntil the decision of the application for an injunction. When operative. SEC. 251. No injunction, unless otherwise provided by special statute, shall operate, until the party obtaining the Undertaking. same shall give an undertaking, executed by one or more sufficient securities, to be approved by the clerk of the court grants ing such injunction, in an amount to be fixed by the court or CE. 26.] CIVIL PROCEDURE. 165 judge allowing the same, to secure to the party injured the damages he may sustain, if it be finally decided that the injunction ought not to have been granted. SEC. 252. The order of injunction shall be addressed to the Order, towhom party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the com- lerkshallendorse injunction mencement of the action, the clerk shall endorse upon the sum- allowed. nons, "injunction allowed," and it shall not be necessary to issue the order of injunction, nor shall it be necessary to issue the same, where notice of the application therefor has been given to the party enjoined. The service of the summons so endorsed, or the notice of an application for an injunction, shall be notice of its allowance. SEC. 253. That where the injunction is allowed during the when allowed during litigation litigation, and without notice of the application therefor, the order of injunction shall be issued, and the sheriff shall forthwith serve the same upon each party enjoined, in the manner prescribed for serving a summons, and make return thereof without delay. SEC. 254. An injunction binds the party from the time he Binding how long. has notice thereof, and the undertaking required by the applicant therefor is executed. SEC. 255. No injunction shall be granted by a judge, after a When not to be motion therefor has been overruled on the merits of the appli- grted. cation, by his court, and where it has been refused by the court in which the action is brought, or a judoge thereof, it shall not be granted to the same applicant, by a court of inferior jurisdiction, or any judge thereof. SEC. 256. An injunction granted by a judge, may be en Injulnctions how forced as the act of the court. Disobedience of any injunction Disobedience, may be punished as a contempt, by the court or any judge who contempt. might have granted it in vacation. An attachment. may beAttacihmentoe f party for breach issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against-the party guilty of the same, and he may be required, in the discretion of the court or judge, to pay a fine not exceeding two hundred dollars, for the use of the county, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged. SEC. 257. That a party enjoined may, at any time before ~~tionl for additional security 166 CIVIL PROCEDURE. [CHI. 26. judgment, upon reasonable notice to the party who has obtained the injunction, move the court for additional security; and if it appear that the surety in the undertaking has removed from the Territory or is insufficient, the court may vacate the injunction, unless, in a reasonable time, sufficient security is given. Aflidavit filed. SEC. 258. On the hearing of an application for an injunction, each party may read affidavits. All affidavits shall be filed. Injunctionwith- SEC. 259. If the injunction be granted without notice, the out notice may be dissolved or defendant, at any time before the trial, may apply, upon nomodified. tice to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge, allowing, dissolving or modifying an injunction, shall be returned to the office of the clerk of the court in which the action is brought, and recorded and obeyed, as if made by the court. Affidavits op- SEC. 260. If application be made upon affidavits, on the part posed by affida- of the defendant, but not otherwise, the plaintiff may oppose the same, by affidavits or other evidence, in addition to that on which the injunction was granted. Defendant nay SEC. 261. A defendant may obtain an injunction upon an obtain injunction. answer in the nature of a counter- claim. He shall proceed in the manner prescribed in this chapter. CHAPTER 5. Receivers and other Provisional Remedies. How receivers SEC. 262. That a receiver may be appointed by the supreme are appointed. court,'the district court, or any judge of either, or, in the absence of said judges from the county, by the probate judge: First, in an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund. to his claim, or between partners or others jointly owing or interested in any property or fund, on the application of the plaintiff, or of any party, whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured. Second, in an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been per CiH. 26.] CIVIL PROCEDURE. 167 formed, and that the property is probably insufficient to discharge the mortgage debt. Third, after judgment, to carry the judgment into effect. Fourth, after judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment. Fifth, in the cases provided in this code, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. Sixth, in all other cases where receivers have heretofore been appointed by the usages of the courts of. equity. SEc. 263. That no party, or attorney, or person interested Who shall not be receivers. in an action, shall be appointed receiver therein. SEc. 264. That, before entering upon his duties, the receiver oathll nd Senrmust be sworn to perform them faithfully, and with one or more sureties, approved by the court or judge, execute an un-dertaking to such person, and in such sum as the court or judge shall 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. 265. The receiver has, under the control of the court Powers and dl-? ties of receivers. power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize. SEC. 266. Funds in the hands of a receiver may be invested runds, how inupon interest, by order of the court; but no such order shall veted. be made, except upon the consent of all the parties to the action. SEC. 267. When it is admitted, by the pleading or examina- Property in hands of trustees tion of a party, that he has in his possession or under his con- nder control of trol any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court or delivered to such party, with or without security, subject to the further direction of the court. SEC. 26.8. Whenever, in the exercise of its authority, a court Contempt of court disobedishall have ordered the deposit or delivery of money or other ence of orders. thing, and the order is disobeyed, the court, besides punishing l68 CIVIL PROCEDURE. [CH. 26, the disobedience as for a contempt, 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. TITLE IX. TRIAL. CHAPTER 1. Issue. How issues arise SEC. 269. That issues arise on the pleadings, where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds: First, Of law. Second, Of fact. Issu esof law on SEC. 270. An issue of law arises upon a demurrer to the demurrer, answer or reply. petition, answer or reply, or to some part thereof. issues of fact. SEC. 271. An issue of fact arises: First, Upon a material allegation in the petition, controverted by the answer: or Second, Upon new matter in the answer, controverted by the reply: or Third, Upon new matter in the reply, which shall be considered as controverted by the defendant without further pleading. Issues of law SEC. 272. Issues, both of law and of fact, may arise upon and fact. different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct. CHAPTER 2. Trial. ARTICLE 1. Trial in General. Triail. SEC. 273. A trial is a judicial examination of the issues, whether of law or of fact, in an action. risudb of tlaw SEC. 274. That issues of law must be tried by the court, uncourt. less referred, as provided in section two hundred and ninetysslles of fact two. Issues of fact arising in action, for the recovery of trlied by jury. money, or of specific, real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided. Ofthr issues. SEC, 275. That all other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code. ARTICLE 2. Trials by Jury. SUBDIVISION 1. Formation of the Jury. Amended Cl. SEC. 276. The general mode of summoning, impanneling, 31-2. Forming ajury. challenging and swearing the jury, is such as is or may be [See jurors, Ch. 1-:2-.] provided by law. Ce. 26.] CIVIL PROCEDURE. 169 SUBDIVISION 2. Conduct of the Trial. SEC. 277. When the jury has been sworn, the trial shall pro- Condcllt of trial proceedings. ceed in the following order, unless the court, for special reasons, otherwise direct: First, The plaintiff must briefly state his claim, and may briefly state the evidence by which he expects to sustain it. Second, The defendant must then briefly state his defence, and may briefly state the evidence he expects to offer in support of it. Third; The party who would be defeated, if no evidence were given on either side, must first produce his evidence, and the adverse party will then produce his evidence. Fourth, The parties will then be confined to rebutting evidence, unless the court, for good reasons, in furtherance of justice, permits them to offer evidence in their original case. Fifth, When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing, if either party require it. Sixth, The parties may then submit, or argue the case, to the jury; in the argument, the party required first to produce his evidence, shall have the opening and conclusion. If several defendants, having separate defenses, appear by different counsel, the court shall arrange their relative order. Seventh, The court may again charge the jury, after the argument is concluded. SEC. 278. Whenever, in the opinion of the court, it is lJu'ytoe~,y proper for the jury to have a view of the property which is or place, Mwen. the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial. SEC. 279. When the case is finally submitted to the julry, Deliberations ol jury, how con they may decide in court, or retire for deliberation. If they ducted. retire, they must be kept together, in some convenient place, under the charge of an officer, until they agree upon a verdict, or be discharged by the court, subject to the discretion of the court, to permit them to separate temporarily at night, and at their meals. The officer having them under his charge, shall not suffer any communication to be made to them, or make 170 CIVIL PROCEDURE. [Cu, 26. any himself, except to ask them if they are agreed upon their verdict, unless by order of the court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon. Jur allowed to SEC. 280. If the jury are permitted to separate, either sel)arate, conditiowIs. dnring the trial or after the case is submitted to them, they shall be admonished by the court, that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them. ry imay retuiorn SEC. 281. After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony. or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, and the court may give its recollection as to the testimony on the point in dispute, in the presence of; or after notice to, the parties or their counsel. be di scharged. SEC. 282. The jury may be discharged by the court, on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing. Neow trial. SEC. 283. In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately, or at a future time, as the court may direct. -Deivering ver- SEC. 284. When the junry have agreed upon their verdict, they must be conducted into court, their names called by the clerk, and the verdict rendered by their foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the clerk or thle court, asking each juror if it is his verdict. If' any one answers in the negative, the jury must again be sent out for further deliberation. Form of verdict. SEC. 285. The verdict shall be written, signed by the foreman, and read by the clerk to the jury, and the inquiry made, Upon disagree- whether it is their verdict. If any juror disagrees, the jury Ot agairn. 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. If, how CH. 26.] CIVIL PROCEDURE. 171 ever, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the court. SUBDIVISION 3. Verdict. SEc. 286. The verdict of a jury is either general or special. Gpenoralad special verdicts. 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 finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw fiom them conclusions of law. SEC. 287. In every action for the recovery of money only, indto be renor specific real property, the jury, in their discretion, may dered. render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues, and in all cases may instruct them, if 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 mrrust Verdicts tobe filed. be filed with the clerk, and entered on the journal. SEC. 288. When the special finding of facts is inconsistent Special finding controls general with the general verdict, the former controls the latter, and verdict. the court may give judgment accordingly. SEC. 289. When, by the verdict, either party is entitled to Jurymust assess the amount, recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery. ARTICLE 3. Trial by the Court. SEC. 290. The trial by jury may be waived by the parties Trial by the in actions arising on contract, and with the assent of the court in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent in open court, entered on the journal. SEC. 291. Upon the trial of questions of fact by the court, hen the court it shall not be necessary for the court to state its finding, decision. except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in 172 CIVIL PROCEDURE. [CH. 2 6. trial; in which case the court shall state in writing the conclusions of fact found separately firom the conclusions of law. ARTICLE 4. Trial by Referees. Trial by referees SEC. 292. All or any of the issues in the action, whether by consent. of fact or of law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court, entered upon the journal. irialte byreferees SEC. 293. Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in either of the following cases: Where the trial of an issue of fact shall require the examination of mutunal accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the other side should be examined as a witness Directions to to prove the account; in which cases the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court. or for carrying a judgment into effect; or where a question of fact other than upon the pleadings shall arise, upon motion or otherwise, in any stage of an action. Conduct of trial SEC. 294. A trial before referees is conducted in the same before referees. manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court, upon such trial. They must state the facts found and the conclusions of law separately, and their decisions must be given, and may be excepted to and reviewed in like manner. Tilhe report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict. Referees, how SEC. 295. In all cases of reference, the parties, except when a ppointed. an infant may be a party, may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and, if the parties do not agree, the court shall appoint one or more referees, not exceeding three, who shall be free from exception. CH. 26.] CIVIL PROCEDURE. 173 SEC. 296. It shall be the duty of the referees to sign any Signing ecepzn tions by referees. true exceptions taken to any order or decision by them made in the case, and return the same with their report to the court making the reference. SEC. 297. A judge, in vacation, upon the written consentmayb beti referred of the parties, may make any order of reference which the court, of which he is a member, could make in term time. In such case, the order of reference shall be made on the written agreement of the parties to refer, and shall be filed with the clerk of the court, with the other papers in the case. SEC. 298. The referees must be sworn or affirmed well and Referees to be sworn, by whom faithfully to hear and examine the causes and to make a just and true report therein, according to the best of their understanding. The oath may be administered by any person authorized to take, depositions. SEC. 299. The referees shall be allowed such compensation Compensation of referees. for their services as the court may deem just and proper,[See Ch. -15.] which shall be taxed as part of the costs in the case. ARTICLE 5. Exceptions. SEC. 300. An exception is an objection taken to a decision Whatisan exception. of the court upon a matter of law. SEC. 301. The party objecting to the decision must exceptWh en xception taken. at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term. SEC. 302, No particular form of exception is required.trm ofexcep The exception must be stated, with so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible. SEC. 303. Where the decision objected to is entered on the RMy benotedo record, and the grounds of objection appear in the entry, the exception may be taken by the party causing to be noted, at the end of the decision, that he excepts. SEC. 304. Where the decision is not entered on the record, When to be preIsented in writing.. or the grounds of objection do not sufficiently appear in theto the court entry, the party excepting must reduce his exceptions to writing, and present it to the court for its allowance. If true, it shall be the duty of a majority of the judges composingTo be signaed b the judges., the court, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large on the journal. If the writing is not true, the court 12 174 CIVIL PROCEDURE. [Cii. 26. shall correct it, or suggest the correction to be made, and it shall then be signed as aforesaid. Disressardedr i - SEC. 305. No exceptions shall be regarded, unless it is less m~aterial. material and prejudicial to the substantial rights of the party excepting. Withadrawal lof SEC. 306. Exceptions taken to the decision of any court of record may, by leave of such court, be withdrawn from the files by the party taking the same, at any time before proceedings in error are commenced, and before the exceptions are recorded. ARTICLE 6. 6New Trial. New trial, when SEC. 307. A new trial is a re-examination, in the same granted. court, of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of' such party: First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial. Second, Misconduct of the jury or prevailing party. Third, Accident or surprise, which ordinary prudence could not have guarded against. Fourth, Excessive damages, appearing to have been given under the influence of passion or prejudice. Fifth, Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property. Sixth, That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Seventh, Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Eighth, Error of law occurring at the trial, and excepted to by the party making the trial. When not grant- SEC. 308. A new trial shall not be granted on account of the smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained. new trial, when SEC. 309. The application for a new trial must be made at to be made. the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence material for the Ci. 26.] CIVIL PROCEDURE. 175 party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented. SEC. 310. The application must be by motion upon written Howmade. grounds, filed at the time of making the motion. The causes enumerated in subdivision two, three and seven, of section three hundred and seven, must be sustained by affidavits showing their truth, and may be controverted by affidavits. SEC. 311. Where the grounds for a new trial could not, with Whentobe made reasonable dilligence, have been discovered before, but are dis- upon petition. covered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery; on which, a summons shall issue, be returnable and served, or publication made as prescribed in section eighty. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and, if in term, it shall be heard and de- When heardand cided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases, but no such petition shall be filed more than one year after the final judgment was rendered. ARTICLE 7. General Provisions. SEC. 312. Whenever damages are recoverable, the plaintiffDamages. may claim and recover any rate of damages to which he may be entitled for the cause of action established. SEC. 313. The provisions of this title, respecting trials by Proisions respecting trials by jury, apply, so far as they are in their nature applicable, tojury, how aptrials by the court. ARTICLE 8. Time of Tr ial. SEC. 314. That the clerks' of courts of record shall keep at Records of clerk, style of. least five books, to be called the appearance docket, the trial docket, the journal, the record, and execution docket. SEC. 315. On the appearance docket he shall enter all ac- Appearance docket-actions, tions -in the order in which they were brought, the date of the howentered. summons, the time of the return thereof by the officer, and his 176 CIVIL PROCEDURE. [CH. 26. return thereon, the time of filing the petition, all subsequent pleadings, and an abstract of all orders and judgments of the court. triaelDomking SEC. 316. The trial docket shall be made out by the clerk of and arrange- the court, at least twelve days before the first day of each term ient. of the court; and the actions shall be set for particular days, in the order in which the issues were made up, whether of law or of fact, and so arranged that the cases set for each day shall When issue be tried as nearly as may be on that day. For the purpose of arranging said docket, an issue shall be considered as made up, when either party is in default of a pleading. Trials take place SEC. 317. The trial of an issue of fact, and the assessment in their order. of damages in any case, shall be in the order in which they are placed on the trial docket, unless, by consent of the parties, or the order of the court, they are continued or placed at the heel of the docket. The time of hearing all other cases shall be in the order in which they are placed on the docket, unless the court, in its discretion, shall otherwise direct. The court may, in its discretion, hear at any time a motion, and may, by rule, prescribe the time for hearing motions. Trial at first SEC. 318. Actions shall be triable at the first term of the term after issues made isp. court, after the issue therein, by the times fixed for pleading are or should have been made up; and when, by the times fixed for pleading, the issues are or should have been made up during a term, such action shall be triable at that term. When the issues are or should have been made up either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk, if required by the court, shall place such actions on the trial docket of that term. Docket for use of SEC. 319. The clerk shall make out a copy of the trial docket the Dar. for the use of the bar, before the first day of the term of court. TITLE X. EVIDENCE. CHAPTER 1. Competency of Witnesses. petnee-eoyn SEC. 320. No person shall be disqualified as a witness, in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility. Qualification of SEC. 321. Nothing in the preceding section contained shall, the rulaws nowle, relating to estates, infants,'in any manner, affect the laws now existing, relating to the CI. 26.] CIVIL PROCEDURE, 177 settlement of estates of deceased persons-infants, idiots or lunatics-or the attestation of the execution of last wills and testaments, or of conveyances of real estate, or of any other instrument required by law to be attested. SEc. 322. Any party to a civil action or proceeding may Adverse party compel any adverse party or person, for whose benefit such ac- ed to testify. tion or proceeding is instituted, prosecuted or defended, at the trial or by deposition, to testify as a witness in the same manner, and subject to the same rules as other witnesses. SEC. 323. No party shall be allowed to testify by virtue of Wvlhen etutor the provisions of section three hundred and twenty, where the party. adverse party is the executor or administrator of a deceased person, when the facts to be proved transpired before the death of such deceased person. SEC. 324. The following persons shall be incompetent to tes- who shall bei competent to tify: First, Persons who are of unsound mind at the time of testify. their production for examination. Second, Children under ten 304. years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. Third, Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsisted, or afterwards. Fourth, An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the client's consent. Fifth, A clergyman or priest, concerning any confession made to him in his professional character, in the course of discipline, enjoined by the church to which he belongs, without the consent of the person making the confession. SEC. 325. If a person offer himself as a witness, that is to be Of voluntary deemed a consent to the examination also of an attorney, clergyman or priest, on the same subject, within the meaning of he last two subdivisions of the preceding section. CI1PATER 2. Means of Producing Witnesses. SEC. 326. That the clerks of the several courts, and judges Pserved-Y of the probate courts, shall, on application of any person having a cause or any matter pending in the court, issue a subpoena for witnesses, under the seal of the court, inserting all the names required by the applicant, in one subpoena, which may be served by the sheriff, coroner, or any constable of the county, or by the party, or any other person. When a subpcena is not 178 CIVIL PROCEDURE. [COH. 26. served by the sheriff, coroner or constable, proof of service shall be shown by affidavit; but no costs of service of the same shall be allowed, except when served by an officer. T'o whom direct- SEC. 327. That the subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place, to testify as a witness, and it may contain a clause directing the witness to bring with him any book, writing or other thing, under his control, which he is bound by law to produce as evidence. Sgpcena itn tak- SEC. 328. That, when the attendance of the witness, before any officer authorized to take depositions, is required, the subpcena shall be issued by such officer. Hrow served. SEC. 329. The subpoena shall be served either by reading or by copy delivered to witness, or left at his usual place of residence; but such copy need not contain the name of any other witness. Attendance of SEC. 330. A witness shall not be obliged to attend for examwitnesses. ination on the trial of a civil action except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpoena is served upon him. Maydemandfees SEC. 331. A witness may demand his traveling fees and fee for one day's attendance, when the subpoena is served upon him, and if the same be not paid, the witness shall not be obliged to obey the subpoena. The fact of such demand and nonpayment shall be stated in the return. Mlay bepunished SEC. 332. Disobedience of a subpcena, or refusal to be sworn for refusal. or to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required. Attachment may SEC. 333. When a witness fails to attend in obedience to a issue to answer torcontempt. subpoena, (except in case of a demand and failure to pay his fees) the court or officer, before whom his attendance is required, may issue an attachment to the sheriff, coroner or constable of the county, commanding him to arrest and bring the person therein named before the court or officer, at a time and place to be fixed in the attachment, to give his testimony and answer for the contempt. If the attachment be not for immediately bringing the witness before the court or officer, a sum may be fixed in which the witness may give an undertaking, with surety, for his appearance; such sum shall be endorsed on the back of the attachment; and if no sum is so fixed and CH. 26.] CIVIL PROCEDURE. 179 endorsed, it shall be one hundred dollars. If the witness be not personally served, the court may, by a rule, order him to show cause why an attachment should not issue against him. SEC. 334. The punishment for the contempt mentioned in Punishmenlt for contempt. section three hundred and thirty-two, shall be as follows: When the witness fails to attend, in obedience to the subpoena, (except in case of a demand and failure to pay his fees,) the court or officer, may fine the witness in a sum not exceeding fifty dollars. In other cases, the court or officer may fine the witness in a sum not exceeding fifty dollars, or may imprison him in the county jail, there to remain until he shall submit to be sworn, testify or give his deposition. The fine imposed by the court shall be paid into the county treasury, and that imposed by the officer shall be for the use of the party for whom the witness was subpoenaed. The witness shall also be liable to the party injured for any damages occasioned by his failure to attend, or his refusal to be sworn, testify or give his deposition. SEC. 335. A witness so imprisonel by an officer, before Relief for imprisonment of whom his deposition is being taken, may apply to a judge ofwitnesses. a court of record, who shall have power to discharge him, if it appears that his imprisonment is illegal. SEc. 336. Every attachment for the arrest, or order of cornm- Attachment under seal of court. mitment to prison of a witness by a court or officer, pursuant -specifications. to this chapter, must be under the seal of the court or officer, if he have an official seal, and must specify, particularly, the cause of the arrest or commitment; and if the commitment be for refusing to answer a question, such question must be stated in the order. Such order of commitment may be di-To whom direc:ed. rected to the sheriff, coroner, or any constable of the county where such witness resides or may be at the time, and shall be executed by committing him to the jail of such county, and delivering a copy of the order to the jailor. SEC. 337. A person confined in any prison in this Territory,,amiation of may, by order of any court of record, be required to be plro- nesses. duced for oral examination in the county where he is imprisoned, but in all other cases his examination must be by deposition. SEC. 338. While a prisoner's deposition is being taken, he To remain in shall remain in the custody of the officer having hilm in charge, who shall afford reasonable facilities for the taking of the deposition. 180 CIVIL PROCEDURE. [CH. 26. Witnesses not to SEC. 339. A witness shall not be liable to be sued in a county be sued on going to court. in which he does not reside, by being served with a summons in such county, while going, returning or attending, in obedience to a subpoena. Maydemand ees SEC. 340. At the commencement of each day after the first each day. day, a witness may demand his fees for that day's attendance, in obedience to a subpoena, and if the same be not paid, he shall not-be required to remain. Witness to be SEC. 341. Before testifying, the witness shall be sworn to testify the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding on the conscience of the witness. CHAPTER 3. Mode of taking the testimony of Witnesses. Testimony —how SEC. 342. The testimony of witnesses is taken in three taken. modes: First, by affidavits. Second, by deposition. Third, by oral examination. Affidavit; defin- SEC. 343. An affidavit is a written declaration, under oath) ition. made without notice to the adverse party. Deposition; de- SEC. 344. A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine, or upon written interrogatories. Of oral examirne SEC. 345. An oral examination is an examination in the ation. presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal, from the lips of the witness. ARTICLE 1. Afidavits. Affidavit, when SEC. 346. An affidavit may be used to verify a pleading, to prove the service of a summons, notice or other process in an action, to obtain a provisional remedy, an examination of a witness, a stay of proceedings, or upon a motion, or in any other case permitted by law. MWhere made. SEC. 347. An affidavit may be made in and out of this Territory, before any person authorized to take depositions, and must be authenticated in the same way, except as provided in section one hundred and twenty-one. ARTICLE, 2..Depositions. SUBDIVISION 1. WThen to be used. When depose- SEC. 348. The deposition of any witness may be used only tion to be used. in the following cases: First, When the witness does not re CAH. 26.] CIVIL PROCEDURE. 181 side in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefironm. Second, When from age, infirmity or imprisonment the witness is unable to attend court or is dead. Third, Whlen the testimony is required upon a motion, or in any other case where the oral testimony of the witness is not required. SEc. 349. Either party may commence taking testimony by Depositions taken, when. deposition at any time after service upon the defendant. SUBDIVISION 2. Officer who may takle them. SEC. 350. Depositions may be taken in this Territory before Before whom taken in the Tera Judge or clerk of the court of record, before a Justice of the rit'oy. Peace, Notary Public, Mayor or chief magistrate of any city or town corporate, or before a master commissioner, or any And county clerks. person empowered by a special commission; but depositions [See Oh. i.] taken in this Territory, to be used therein, must be taken by an officer or person whose authority is derived within the Territory. SEC. 351. Depositions may be taken out of this Territory Beforellomltaby a Judge, Justice or Chancellor of any court of record, a Territory. Justice of the Peace, Notary Public, Mayor or chief magistrate of any city or town corporate, a commissioner appointed by the Governor of this Territory to take depositions, or any person authorized by a special commission from this Territory. SEC. 352. The officer before whom depositions are takenWhomay not must not be a relative or attorney of either party, [or] otherwise interested in the event of the action or proceeding, SEC. 353. Any court of record of this Territory or any Granting Corn-k missions to take Judge thereof, is authorized to grant a commission to takedeP~oiti~on. depositions within or without the Territory. The commission must be issued to a person or persons therein named, by the clerk, under the seal of the court granting the same, and depositions under it must be taken upon written interroga- How taken. tories, unless the parties otherwise agree. SUBDIVISION 3. Mae ner of taking and authenticating them. SEc. 354. Prior to the taking of any deposition, unless taken Adverse party to under a special commission, a written notice, specifying the howerved. action or proceeding, the name of the court or tribunal in which it is to be used, and the time and place of taking the same, shall be served upon the adverse party, his agent or attorney of record, or left at his usual place of abode. The notice shall 182 CIVIL PROCEDURE. [Cu. 26. be served so as to allow the adverse party sufficient time, by the usual route of travel, to attend, and one day for preparation, exclusive of Sunday and the day of service; and the ex-. amination may, if so stated in the notice, be adjourned from day to day. Adverse partyi- SeC. 355, When the party against whom the deposition is dent or abseet, to be read is absent from, or a non-resident of the Territory, notice to be by Ipblication. and has no agent or attorney of record therein, he may be notified of the taking of the deposition by publication. The publication must be made three consecutive weeks in some newspaper printed in the county where the action or proceeding is pending, if there be-any printed in such county, and if not, in some newspaper printed in this Territory, of general circulation in the county. The publication must contain all that is required in a written notice, and may be proved in the manner prescribed in section eighty-one. Must ba written SEC. 356. The deposition shall be written in the presence of in the presence of the officer. the officer taking the same, either by the officer, the witness, or some disinterested person, and subscribed by the wit3 ess. Depositionetobe SEC. 357. The deposition so taken shall be sealed up and sealed and sent to clerk of court. endorsed with the title of the cause and the name of the officer taking the same, and by him addressed and transmitted to the clerk of the court where the action or proceeding is pending. It shall remain under seal until opened by the clerk by order of the court, or at the request of a party to the action or proceeding' or his attorney. Depositions so SEC. 358. The depositions taken pursuant to this article, taken, evidence 0)) trial. shall be admitted in evidence on the trial of any civil action or proceeding pending before any Justice of the Peace, Mayor or other judicial officer, arbitrator or referee. Ma,,e read in SEC. 359. When a deposition has been once taken, it may any stage of action. be read in any stage of the same action or proceeding, or in any other action or proceeding upon the same matter between the same parties, subject, however, to all such exceptions as may be taken thereto under the provisions of this title. Hoow authentica- SEC. 360. Depositions, taken pursuant to this article by any judicial or other officer herein authorized to take depositions, having a seal of office, whether resident in this Territory or elsewhere, shall be admitted in evidence upon the certificate and signature of such officer under the seal of the court of which he is an officer, or his official seal, and no other or fur Oa. 26.] CIVIL PROCEDURE. 183 ther act of authentication shall be required. If the officer taking the sam-e have no official seal, the deposition, if not taken in this Territory, shall be certified and signed by such officer, and shall be further authenticated, either by parol proof adduced in court, or by the official certificate and seal of any secretary or other officer of the Territory keeping the great seal thereof, or of the clerk or prophonotary of any court having a seal, attesting that such judicial or other officer was, at the time of taking the same, within the meaning of this chapter, authorized to take the same. But if the deposition be taken within this Territory by an officer having no seal, or within or without this Territory, under a special commission, it shall be sufficiently authenticated by the official signature of the officer or commissioner taking the same. SEC. 361. The officer taking the deposition shall annex Certificate annexed to deposithereto a certificate, showing the following facts: That the tion. witness was first sworn to testify the truth, the whole truth, and nothing but the truth; that the deposition was reduced to writing by some proper person, naming himl; that the deposition was written and subscribed in the presence of the officer certifying thereto; that the deposition was taken at the time and place specified in the notice. SEC. 362. When a deposition is offered to be read in evi- Court must be satisfied that dence, it must appear, to the satisfaction of the court, that, for witness cennot any cause specified in section three hundred and forty-eight, the attendance of the witness cannot be procured. SEC. 363. Every deposition, intended to be read in the evi- Mustbe filed ou dence on the trial, must be filed at least one day before the day. day of trial. SEC. 364. The following fees shall be allowed for taking de- Foes for deposipositions in this Territory, viz: Swearing each witness, four cents; for each subpoena, attachment or order of commitment, fifty cents; for each hundred words contained in such deposition and certificate, ten cents, and no more; and such officer may retain the same until such fees are paid; such officer shall also tax the costs of the Sheriff or other officer who shall serve the process aforesaid, and fees of the witnesses, and may also, if directed by the person entitled thereto, retain such deposition until the said fees are paid. SUBDIVISION 4. Exceptions to Depositions. SEC. 365. Exceptions to depositions shall be in writing, Exceptions to specifying the grounds of objection, and filed with the papers in the cause. 184 CIVIL PROCEDURE. [Cin. 26. tWhat consod SEC. 366. No exception, other than for incompetency or irtxtes goode exceptions. relevancy, shall be regarded, unless made and filed before the commencement of the trial. Court to decide. SEC. 367. The court shall, on motion of either party, hear and decide the questions arising on exceptions to depositions, before the commencelment of the trial. Errors wai-ed. SEC. 368. Errors of the court, in its decisions upon exceptions to depositions, are waived, unless excepted to. CHAPTER 4. Admissions, Inspection and Production of Documents, and General Provisions. Admission of SEC. 369. Either party may exhibit to the other or to his genuineness of v documents. attorney, at any time before the trial, any paper or document material to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fail to give the admission in writing within four days after the request, and if the party exhibiting the paper or document be afterward put to any cost or expense to prove its genuineness, and the same be finally proved or admitted on the trial, such costs and expenses, to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless it shall appear, to the satisfaction of the court, that there were good reasons for the refusal. M:ay demand of SEC. 370. Either party, or his attorney, may demand of the adverse party an inspection, adverse party an inspection and copy, or permission to take a copy of' a book, paper or document in his possession or under his control, containing evidence relating to the merits of the action or defence therein. Such demand shall be in writing, specifying thie book, paper or document, with sufficient particularity to enable the other party to distinguish it, and if compliance with the demand, within four days, be refused, the court or Judge, on motion and notice to the adverse party, Court may ex- may, in their discretion, order the adverse party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of such book, paper or document; and on failure to comply with suchl order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party friom compelling another to produce any book, paper or document when he is examined as a witness. CH. 26.] CIVIL PROCEDURE. 185 SEC. 371. Either party, or his attorney, if required, shall Either party to deliver to the other party, or his attorney, a copy of any deed, feqEoird; ifro e instrument or other writing, whereon the action or defense is cluded. fbunded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence, at the trial, the original, of which a copy has been refused. This section shall not apply to any paper, a copy of which is filed with a pleading. SEC. 372. That printed copies in volumes of statutes, codes Evidice of law. [See Ch. 17-2.] or other written law, enacted by any other State or Territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of such State, Territory or government, shall be admitted by the courts and officers of this Territory, on all occasions, as presumptive evidence of such laws. The unwritten or common Common law of foreign State law of any other State, Territory or foreign government, may may be proved by oral testibe proved as facts by parol evidence; and the books of reports monyof cases adjudged in their courts, may also be admitted as presumptive evidence of such law. CHAPTER 5. Proceedings to Perpetzate Testimony. SEC. 373. That the testimony of a witness may be perpetu- Perpetuating testimony. ated in the following manner: SEC. 374. That the applicant shall file in the office of the Petition to be filed in district clerk of the district court a petition, to be verified, in which court; what it shall contain. shall be set forth, specially, the subject matter relative to which testimony is to be taken, and the names of the persons interested, if known to the applicant; and if not known, such general description as he can give of such persons, as heirs, devisees, alienees or otherwise. The petition shall also state the names of the witnesses to be examined, and the interrogatories to be propounded to each; that the applicant expects to be a party to an action in a court of this Territory, in which such testimony will, as he believes, be material, and the obstacles preventing the immediate commencement of the action, where the applicant expects to be plaintiff. SEC. 375. The court or a judge thereof may forthwith make Coulrt may order examination. an order allowing the examination of such witnesses. The order shall prescribe the time and place of the examination, how long the parties interested shall be notified thereof, and the manner in which they shall be notified. 186 CIVIL PROCEDURE. LCHi. 26. When parties SEC. 376. When it appears satisfactorily to the court or cannot be personally notified. judge that the parties interested can not be personally notified, to be taken. such court or judge shall appoint a competent attorney to examine the petition and prepare and file cross interrogatories to those contained therein. The witnesses shall be examined upon the interrogatories of the applicant, and upon cross interrogatories, where they are required to be prepared, and no others shall be propounded to them; nor shall any statement be received which is not responsive to some one of them. The attorney filing the cross interrogatories shall be allowed a reasonable fee therefor, to be taxed in the bill of costs. To be taken by SEC. 377. Such depositions shall be taken before some one some one author. ized. authorized by law to take depositions, or before some one specially authorized by the court or judge, and shall be returned to the clerk's office of the courtin which the petition was filed. When court eat- SEC. 378. The court or judge, if satisfied that the deposiisfied, shall approve and order tions have been properly taken, and, as herein required, shall them filed. approve the same and order them to be filed; and, if a trial be had between the parties named in the petition, or their When such de- privies or successors in interest, such depositions or certified position may be used, copies thereof may be given in evidence by either party, where the witnesses are dead or insane, or where their attendance for oral examination can not be obtained or required; but such depositions shall be subject to the same objections for irrelevancy and incompetency as may be made to depositions taken pending an action. Applicant payS SEC. 379. The applicant shall pay the costs of all proceedcosts. ings under this chapter. TITLE XI. JUDGMENTT. CHAPTER 1. Judgnment in General. JlJdgmlent. SEC. 380. A judgment is the final determination of the rights of the parties in an action. owgiven; ho SEC. 381. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or CH. 26.] CIVIL PROCEDURE. 187 more of them, leaving the action to proceed against the others whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one Petition may be dismissed with or more defendants, in case of unreasonable neglect, on the costs. part of the plaintiff, to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served. SEC, 382. An action may be dismissed, without prejudice By whom and for what cause to a future action: First, By the plaintiff, before the final action may be'~f~~~~~~~ ~dismissed withsubmission of the case to the jury, or to the court, where the out prejudice. trial is by the court. Second, By the court, where the plaintiff fails to appear on the trial. Third, By the court for the want of necessary parties. Fourth, By the court on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth, By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action. Sixth, In all other cases, upon the trial of the action, the decision must be upon the merits. SEC. 383. In any case where a set-off or counter-claim has when defendant may proceed been presented, the defendant shall have the right of proceed- without plaintiff' ing to the trial of his claim, although the plaintiff may have dismissed his action or failed to appear. SEC. 384. In the foreclosure of a mortgage, a sale of the Mortgage sales. mortgaged property shall in all cases be ordered; and-no real estate within this Territory shall be sold for the payment of any money, in security of: which it may have been pledged, except in pursuance of a- judgment of a court of competent jurisdiction, ordering such sale. SEC. 385. When a judgment shall be rendered for a convey- Effect ofjudgance, release or acquittance, in any court of this Territory, and the party against whom the judgment shall be rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available, as if the conveyance, release or acquittance had been executed conformably to such judgment. This section shall apply to decrees rendered or to be rendered in suits now pending. CHAPTER 2. Judgment u2on Failure to Answer. SEC. 386. If the taking of an account, or the proof of a Courtay msefss fact, or the assessment of damages be necessary to enable the i to oirionet or j ury. 188. CIVIL PROCEDURE. [CIi. 26. court to pronounce judgment upon a failure to answer, or after a decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof, or assess the damages, or mlay, with the like assent, refer the same to a referee or master commissioner, or may direct the same to be ascertained or assessed by a jury. If a jury be ordered, it shall be on or after the day on which the action is set for trial. CHAPTER 3. Judgment by Co:ifession. Judgments con. SEC. 387. Any person indebted, or against whom a cause tbssed in open court. of action exists, may personallyappear in a court of competent jurisdiction, and, with the assent of the creditor or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly. Orbye att.athor- SEC. 388. Judgments may be entered upon confession by an attorney, authorized for that purpose by a warrant of attorney, acknowledged or proved as conveyances of land, without any previous process or proceeding, and judgments so entered shall be a lien from the date of entry. ExecutionsiSe SEC. 389. Such judgments may be entered by the clerk at court, any time, and execution shall issue thereon in the same manner as judgments rendered in open court. Cause of action SEC. 390. The debt or cause of action shall be briefly stated to be stated. in the judgment, or in writing to be filed as pleadings in other actions. Have same effect SEc. 391. Such judgment shall authorize the same proas in actions regularly brought. ceedings for its enforcement as judgments rendered in actions regularly brought and prosecutedl; and the confession shall operate as a release of errors. Attorney to pro- SEC. 392. Every attorney, who shall confess judgment in duce authority, original or copy any case, shall, at the time of making such confession, proto be filed. a I duce the warrant of attorney for making the same to the court before which lie makes the confession, and the original, or a copy of the warrant, shall be filed with the clerk of the court in which the judgment shall be entered. How persons in SEC. 393. If any person be in custody in a civil action, at custody may authorieaconfes- the suit of another, no warrant of attorney, executed by the sion ofjudgment person in custody, to confess judgment in favor of the person at whose suit he is in custody, shall be of any force, unless some attorney, expressly named by the person in custody, be present and sign the warrant of attorney as a witness. CH. 26.] CIVIL PROCEDURE. 189 CHAPTER 4. Manner of Giving and Entering Juadgment. SEC. 394* When a trial by jury has been had, judgment mTust Judgment, how be rendered by the clerk in confortnity to the verdict, unless re it is special, or the court order the case to be reserved for future argument or consideration. SEc. 395. Where the verdict is special, or where there has Incaseofspcci I verdict. been'a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it shall order what judgment shall be entered. SEC. 396. Where, upon the statement in the pleadings, one Judgmrenterendered against party is entitled by law to judgment in his favor, judgment verdict in certain cases. shall be so rendered by the court, though a verdict has been found against such party. SEC. 397. If a counter-claim or set-off, established at the Judgm,,nt for trial, exceed the plaintiff's claim so established, judgment for the defendant must be given for the excess; or, if it appear that the defendant is entitled to any affirmative relief, judgment shall be given therefor. SEC. 398. It shall not be necessary to reserve, in a judg- Infants or minors rights, how ment or order, the right of an infant to show cause against it asserted. after his attaining full age; but, in any case in which, but for this section, such reservation would have been proper, the infant, within one year after arriving at the age of twenty-one years, may show cause against such order or judgment. SEC. 399. All judgments and orders must be entered on the Judgment and journal of the court, and specify clearly the relief granted or onolurnal. order made in action. SEC. 400. The clerk shall make a complete record of every Clerk to mnak:, record. cause, as soon as it is finally determined, unless such record or some part thereof be duly waived. SEC. 401. He shall make up such record, in each cause, in Record inal:athe vacation next after the term at which the same was determined; and the presiding judge of such court shall, at its next term thereafter, subscribe the same. SEC. 402. The records shall be made up fiom the petition, Hnwwnwadto the process, return, the pleadings subsequent thereto, reports, stated. verdicts, orders, judgments, and all material acts and proceedings of the court; but, if the items of an account or the copies of papers attached to the pleadings be voluminous, the court may order the record to be made by abbreviating the 13 190 CIVIL PROCEDURE. [CH. 26. same, or inserting a pertinent description thereof, or by omit-, ting them entirely. Evidence must not be recorded. If regularly SEC. 403. When the judicial acts or other proceedings of brought up, judge to sign. any court have not been regularly brought up and recorded by the clerk thereof, such court shall cause the same to be made up and recorded within such time as it may direct. When they are made up and, upon examination, found to be correct, the presiding judge of such court shall subscribe the same. Record unneces- SEC. 404. That section four hundred shall not apply: First, ary, when. In criminal prosecutions, where the indictment has been quashed, or where the prosecuting attorney shall have entered a nolle prosequi on the indictment. Second, In cases where an action has been dismissed without prejudice to a future action, as provided in section three hundred and eighty-two. Third, In all actions in which, in open court, at the term at which the final order or judgment shall be made, both parties shall declare their agreement that no record shall be made May inake rec- SEC. 405. In cases where an action has been dismissed withord, upon being paid, in certain out prejudice to a future action, the clerk shall make a complete record of the proceedings, upon being paid for making the same by the party desiring the record to be made. Complete rec- SEC. 406. A completerecord shall be made in the case menords to be made, whell. tioned in section three hundred and eighty-three, unless waived by the parties. CHAPTER 5. Conveyance by Commiirsioners. see ch. 37-1, 2. SEC. 407. Real property may be conveyed by master cornReal property miay beconveyed missioners as herein after provided: First, When by an order by master commissioners when or judgment in an action or proceeding, a party is ordered to convey such property to another, and he shall neglect or refuse to comply with such order or judgment. Second, When specific real property is required to be sold under an order or judgment of the court. Sheriff to act as SeC. 408. A sheriff may act as master commissioner under master commissioner, when. the second sub-division of the preceding section. Sales made under thle same shall conform, in all respects, to the laws regulating sales of lands upon execution. Deed shall con- SEC. 409. The deed of a master commissioner shall contain tain what. the like recital, and shall be executed, acknowledged and recorded as the deed of a sheriff, of real property sold under execution. CH. 26.] CIVIL PROCEDURE. 191 TITLE XII. CAUSES OF ACTION WHICH SURVIVE, AND ABATEMENT OF ACTIONS. SEC. 410. In addition to the causes of action which survive What causes of action survive. at common law, causes of action for mesne profits, or for an inlljury to the person or to real or personal estate, or for any deceit or fraud shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same. SEC. 411. No action, pending i'n any court, shall abate by Actions shall the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution for a nuisance, or against a justice of the peace for misconduct in office, Which shall abate by the death of the defendant. TITLE XIII. REVIVOR. CHAPTER 1, Revivor of Actions. SEC. 412. Where there are several plaintiffs or defendants Deatt of party to joint action in an action, and one of them dies, or his powers as personaltc ber placed on record. representative cease, if the right of action survive to or against the remaining parties, the action may procede - the death of the party or the cessation. of his powers being stated on the record. SEC. 413. Where one of several plaintiffs or defendants Uponthedeath of a party, tria1:: dies, or his powers as a personal representative cease, if the may proceed. cause of action do not admit of survivorsbip, and the court is of opinion that the merits of the controversy can be properly determined and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any who were not parties at the time of trial. SEC. 414. When one of the parties to an action dies, or his Actions-may be! revived-, when. powers as a personal representative cease before the judgment, if the right of action survive in favor of or against his representatives or successors, the action may be revived and proceed in their names. SEC. 415. The revivor shall be, by a conditional order ofevitor made in term time or vas the court, if made in term, or by a judge thereof, if in vaca- cation. tion, that the action be revived in the names of the represen 192 CIVIL PROCEDURE. [CaH. 26. tatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them. eho3 n my y SEC. 416. The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose powers ceased, suggesting his death or the cessation of his powers, which, with the names and capacities of his representatives or successor, shall be stated in the order. BY1 consent; SEC. 417. If the order is made by consent of the parties, when not by tconsent, orer the action shall forthwith stand revived; and, if not made by how served. consent, the order shall be served in the same manner and returned within the same time as a summons, upon the party adverse to the one making the motion; and if sufficient cause be not shown against the revivor, the action shall stand revived..,ubliction, 110sbicateon,- SEC. 418. When the plaintiff shall make an affidavit, that c ossary, when. the representatives of the defendant, or any one of them in whose name the action may be ordered to be revived, or nonresidents of the Territory, or have left the same to avoid the service of the order, or so concealed themselves that the order cannot be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be published for six consecutive weeks, as provided by section eighty, notifying them to appear on a day therein named, not less than ten days after the publication is complete, and show cause why the action should not be revived against them; arid, if sufficient cause be not shown to the contrary, the action shall stand revived. lin whose name SEC. 419. Upon the death of the plaintiff in an action, it it shall be revivado. may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representatives, the revivor shall be in his name; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor maj; be in their names. May be against SEC. 420. Upon the death of a defendant in an action, personal reprosentatives or wherein the right or any part thereof survives against any of his personal representatives, the revivor shall be against him; and it may, also, be against the heirs and devisees of the defendant, or both, when the right of action or any part thereof survives against them. Againhinsti or SEC. 421. Upon the death of a defendant in an action for e recovery of real evs.property only, or which concern the recovery of real property only, or which concerns only his CO. 26.] CIVIL PROCEDURE. 193 rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an -order therefor may be forthwith made in the manner directed in the preceding sections of this title. SEC. 422. An order to revive an action against the repre-aant le revived sentatives or successor of a defendant shall not be made with- sentatives in onet year. out the consent of such representatives or successor, unless in one year from the time it could have been first made. SEC. 423. An order to revive an action in the names of the Order to reviv' representatives or successor of a plaintiff, may be made forth- wifteh oneyet with, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but, where the defendant shall also have died or his powers have ceased in the meantime, the order of- revivor, on both sides, may be made in the period limited in the last section. SEC. 424. When it appears to the court, by affidavit, that sction shall mi struck from lh. either party to an action has been dead, or where a party sues docket, when. or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or-successor, without the consent of both parties, it shall order the action to be stricken from the docket. SEC. 425. At any term of the court succeeding the death of When ten dfay v' notice, necessar y the plaintiff, while the action remains on the docket, the de- of application to fendant having given the plaintiff's proper representatives, in docket. whose names the action might be revived, ten day's notice of the application therefor, may have an order to strike the action from the docket, and for costs against the estate of the plaintiff, unless the action is forthwith revived. SEC. 426. When, by the provisions of the preceding sections, Wi, action ro - rived trial to an action stands revived, the trial thereof shall not be post-proceed. poned by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had no death or cessation of powers taken place. CHAPTER 2. Revivor and new Parties to Judgment. SEC. 427. When a judgment is recovered against one or No w partie to judgmont. more persons jointly indebted upon contract, those who were not originally summoned may be made parties to the judgment by action. 194 CIVIL PROCEDURE. [CIH. 2G. Death af1ter SEC. 428. If either or both parties die after judgment and judgment and before satisfac- before satisfaction thereof, their representatives, real or pertives made par- sonal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal or both, of such deceased party. Dormnantjudg- SEC. 429. If a judgment become dormant, it may be revived ment may be revived. in the same manner as is prescribed for reviving actions before judgment. TITLE XIV. EXECUTIONS. Executions is. SEC. 430. Executions shall be deemed process of the court, sued by clerk to diffeientcoun- and shall be issued by the clerk and directed to the sheriff of ties. the county. They may be directed to different counties at the same time. Kinds of execu- SEC. 431. Executions are of three kinds: First, Against the lion. property of the judgment debtor. Second, Against his person. Third, For the delivery of the possession of real or personal property, with damages for withholding the same and costs. CHAPTER 1. Executions against the Property of the Judgment Debtor. Kind of proper- SEC. 432. Lands tenements, goods and chattels, not exempt ty subject. by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided. To be bound tSEC. 433. The lands and tenements of the debtor, within the from the first dlay of term, ex- county where the judgment is entered, shall be bound for the cept on confession. satisfaction thereof, from the first day of the term at which judgment is rendered; but judgments by confession and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution. udmen~t i fe^ SEC. 434. If execution shall not be sued out within five years ears. from the date of any judgment that now is or may hereafter be rendered, in any court of record in this Territory, or if five Cu. 26.] CIVIL PROCEDURE. 195 years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. SuE. 435. The writ of execution against the property of theWrit of hexe judgment debtor, issuing from any court of record in this Ter- shall command. ritory, shall command -the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and, for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor; and the exact amount of the debt, damages and Amount to b3 endorsed on excosts, for which the judgment is entered, shall be endorsed on ecution. the execution. SEC. 436. When two or more writs of execution against the of preference same debtor shall be sued out during the term in which judg-jugmnt ment was rendered, or within ten days thereafter: and when two or more writs of execution, against the same debtor, shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases, the writ of execution first delivered to the officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to effect any preferable lien which one or more of the judgments, on which execution issued, may have on the lands of the judgment debtor. SEC. 437. That the officer to whom a writ of execution isLevy of execndelivered, shall proceed immediately to levy the same upon the tof officer, goods and chattels of the debtor; but, if no goods and chattels can be found, the officer shall indorse on the writ of execution " no goods," and forthwith levy the writ of execution upon the lands and tenements of the debtor, which may be liable to satisfy the judgment. SEC. 438. If the officer, by virtue of any execution, issued Of property leyfrom any court of record in this Territory, shall levy the same ied on under execution and on any goods and chattels claimed by any person other than claimedby another. the defendant, it shall be the duty of said officer, forthwith, to give notice in writing, to some justice of the peace of the CIVIL PROCEDURE. [CH. 26. Itigtoftri oe otyhcounty, in which shall be set forth the names of the plaintiff and defendant, together with the name of the claimant; and, Noticetoijustice at the same time, he shall furnish the said justice of the peace with a schedule of the property claimed; and it shall be the *ST'ry slnmmoned. duty of such justice of the peace, immediately upon the receipt of such notice and schedule, to make an entry of the same upon his docket, and issue a writ of summons, directed to the sheriff or any constable of the county, commanding him to summons five disinterested men, having the qu.alifications of electors, who shall be named in said summons, to appear before him, the said justice, at the time and place therein mentioned, which time shall not be more than three days after the date of said writ, to try and determine the right of the claimant to the utyofclaimant property in controversy. And it shall be the duty of the claimant to give two days' notice, in writing, to the plaintiff or other party, for whose benefit such execution was issued and levied as aforesaid, his agent or attorney, if within the county, of the time and place of such trial; and he shall, moreover, prove to the satisfaction of said justice that such notice was given, or that the same could not be given by reason of the absence of the party, his agent or attorney. Proceedoings be- SEc. 439. The jury, summoned as aforesaid, shall be sworn lbore justice and Jury. to try and determine the right of the claimant to the property in controversy, and a true verdict to give, according to the evidence. If the jury shall find the right to said goods and chattels, or any part thereof, to be in the claimant, they shall also find the value thereof, and the justice shall render judgment, upon such finding of the jury, for the claimant, that he recover his costs against the plaintiff in execution, or other party to the same, for whose benefit the execution issued, and also that he have restitution of said goods and chattels or any part thereof, according to the finding of the jury. But if the right of the said goods and chattels and every part thereof shall not be in the claimant, according to the finding of said jury, then the said justice shall render judgment on such finding in favor of the plaintiff in execution, or other party, for whose benefit the same was issued and levied against said claimant for costs, Fees of officers, and award execution thereon. Said justice of the peace, in the witnesses and jlurors. taxation of costs accruing by reason of such claim and trial, shall allow each juror summoned and sworn, the sum of fifty cents; and for the sheriff, constable or other officer, and witnesses, and for himself, he shall tax such fees as are allowed C(l. 26.] CIVIL PROCEDiURE. 197 by law to each, respectively, for like services rendered in other cases. Such judgment for the claimant, (unless an undertaking shall be executed as provided in the next section,) shall be a justification of the officer in returning "no goods" to the writ of execution, by virtue of which the levy has been made, as to such part of the goods and chattels as were found to belong to such claimant. SEC. 440. If the jury shall find the property or any part Security to bte given by plainthereof to be in the claimant, and the plaintiff in execution tiff before sale. shall, at any time within three days after such trial, tender to the sheriff or other officer having such property in his custody on execution, an undertaking with good and sufficient securities, payable to such claimant, in double the amount of the value of such property as assessed by the jury, to the effect that they will pay all damages sustained by reason of the detention or sale of such property, then the sheriff or other officer shall deliver said undertaking to the claimant, and proceed to sell such property, as if no such trial of the right of property had taken place, and shall not be liable to the claimant therefor. SEC. 441. In all cases where a sheriff, coroner or other offi- when security cer shall, by virtue of an execution, levy upon any goods and delivery ofproperty. chattels which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security, take of the defendant an undertaking with security, in such sum as he may deem sufficient, to the effect that the said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice, given in writing, to said defendant in execution, or by advertisement, published in a newspaper printed in the county, naming therein the day and place of sale. If the de- Forfeiture of bond. fendant shall fail to deliver the goods and chattels at the time and place mentioned in the notice to him given, or to pay to the officer holding the execution the full value of said goods and chattles, or the. amount of said debt and costs, the undertaking, given as aforesaid, shall be considered as broken, and may be proceeded on as in other cases. SEC. 442. The officer who levies upon goods and chattels, by Teni days public notice of time virtue of an execution issued by a court of record, before he d place of proceeds to sell the same, shall cause public notice to be given of the time and place of sale, for at least ten days before the 198 CIVIL PROCEDURE. [CH. 26. day of sale. The notice shall be given by advertisement, published in some newspaper printed in the county, or in case no newspaper be printed therein, by setting up advertisements in five public places in the county. Two advertisements shall be put up in the township where the sale is to be held, and where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue out another writ of execution, directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold, unless the time- and place of sale be advertised, as hereinbefore provided. When property SEC. 443. When any writ shall issue, directing the sale of insufficient, oth- or property to be property previously taken in execution, the officer issuing said levied upon. p writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands not sold shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt. Appraisement of SEC. 444. If execution be levied upon lands and tenements, property.;Notice of ap- or stock in trade, the officer levying such execution shall call praisal to be given-see ch. 171. an inquest of three disinterested householders or stock in trade, who shall be resident within the county where the lands, taken in execution, are situate, and administer to them an oath, impartially to appraise the property so levied upon, upon actual view, and such householders shall forthwith return to said officer under their hands, an estimate of the real value of said property. Coptstobedepos- SEC. 445. The officer receiving such return shall forthwith ited with clerk. deposit a copy thereof with the clerk of the court from which the writ issued, and immediately advertise and sell such property, agreeably to the provisions of this title. Ronallose vfton SEC. 446. If, upon such ieturn, as aforesaid, it appear by thirds. the inquisition that two-thirdc of the appraised value of said lands, tenements or stock in trade so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued, shall not operate as a lien, on the residue Property not to of the debtor's estate, to the prejudice of any other judgment be sold unless it OH. 26.] crVIL PROCEDURE. 199 creditor, but no such property shall be sold for less than two- bringgt'o-third its appraised thirds of the value returned in the inquest; and nothing in this value. section contained shall, in any wise, extend to effect the sale of lands or stock in trade by the Territory, but all land or stock in trade therein, the property of individuals indebted to the Territory for any debt or taxes, or in any other manner, shall be sold, without valuation, for the discharge of such debt or taxes, agreeably to the laws in such cases made and provided. SEC. 447. If the property of any clerk, sheriff, coroner, jus- yfficero' proPertice of the peace, constable or any collector of Territory, coun- ceived on offci.a capacity not to ty, town or township tax, shall be levied on for or on account be appraised. of any moneys that now are or may hereafter be by them collected or received in their official capacity, the property so levied on shall be sold without valuation. SEC. 448. Lands and tenements, taken on execution, shalllThirty daysf notice of sale of not be sold until the officer cause public notice of the time and land, how given. place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or in case no newspaper be printed in the county, in'some newspaper in general circulation therein, and by putting up an advertisement upon the court-house door, and in five other public places in the county, two of which shall be in the township where such lands and tenements lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable. SEC. 449. If the court, upon the return of any writ of ex- Proceeds of saR} may remain in ecution, for the satisfaction of which any lands, tenements or hands of officer subject to order stock in trade have been sold, shall, after having carefully of court. examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal, that the court is satisfied of the legality of such sale, and in order that the officer make to the purchaser a deed for such lands and tenements; and the officer, on making such sale, may retain the purchase money in his hands until the court shall have examined his proceedings, as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court. SEc. 450. The sheriff or other officer, who, upon such writ or Amended-see oh. 170-1. writs of execution, shall sell the said lands and tenements, or Deed to be made by officer, conany part thereof, shall make to the purchaser or purchasers veyingrightand thereof, as good and sufficient deed of conveyance of the lands ant. 200 CIVIL PROCEDURE. [CH, 26. and tenements sold, as the person or persons against whom such writ or writs of execution were issued, could have made of the same, at or any time after they became liable to judgment. The Deed evidence of deed shall be sufficient evidence of the legality of such sale, and legality of pale. the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned, as was vested in the party at or after the time, when such lands and tenements became liable to what thedeed the satisfaction of the judgment; and such deed of conveyance, shall recite. to be made by the sheriff or other officer, shall recite the execution or executions, or the substance thereof, and the names of the parties, the amount, and date of term of rendition of each judgment, by virtue whereof the said lands and tenements were sold as aforesaid, and shall be executed, acknowledged and recorded as is or may be provided by law, to perfect the conveyance of real estate in other cases. Officer 99may de- SEC. 451. That the officor who levies upon goods and chatmand payment tels or lands and tenements, or who is charged withi the duty of fbr publication I in advance. selling the same, by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper, until the party for whose benefit such execution issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer, for publishing such notice. M:s~t demand SEC. 452. Before any officer shall be excused from giving the fees or be liable. Sech 99-26. notification mentioned in the last section, he shall demand of the party for whose benefit the execution was issued, his agent or attorney (provided either of them reside in the county), the fees in said section specified. Salee, where SEc. 453. All sales of lands or tenements under execution0 smcade. shall be held at the court house, in the county in which such oficer notto lands and tenements are situated. No sheriff or other officer purchase, making the sale of property, either personal or real, nor any appraiser of such property, shall, either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void. Otheroxecutions SEC. 454. If lands, tenements or stock in trade, levied on as aforesaid, are not sold upon one execution, other executions may be issued to sell the property so levied upon. Twoormoreex- SEC. 455. In all cases where two or more executions shall ecutions to be levieda on epa- be put into the hands of any sheriff or other officer, and it shall r ate p arcels of and.,eal estate. be necessary to levy on real estate to satisfy the same, and CH. 26.] CIVMI PROCEDURE. 201 either of the judgment creditors, in whose favor one or more of said executions are issued, shall require the sheriff or other officer to levy said executions, or so many thereof as may be required, on separate parcels of the real property of the judgment debtor or debtors, giving to the officer making the levy on behalf of the creditor, whose execution may, by the provisions of this chapter, be entitled to a preference, the choice of such part of the real property of the judgment debtor or debtors, as will be sufficient, at two-thirds of the appraised value, to satisfy the same; and in all cases where two or more executions, which are entitled to no preference over each other, are put into the hands of the same officer, it shall be the duty of the officer, when required, to levy the same on separate parcels of the real property of the judgment debtor or debtors, when, in the opinion of the appraisers, the same may be divided without material injury; and if the real property of said debtors will not be sufficient, at two-thirds of its appraised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on, to satisfy each execution, as will bear the same proportion in value to the whole, as the amount dae to the execution bears to the amount of all the executions chargeable thereon, as near as may be, according to the appraised value of each separate parcel of said real property. SEC. 456. If the term of service of the sheriff or other officer When steceeding sheriff may who has made, or shall hereafter mnake sale of any lands and make deed. tenements, shall expire, or if the sheriff or other officer shall be absent, or be rendered unable, by death or otherwise, to make a deed of conveyance of the same, any succeeding sheriff or other officer, on receiving a certificate from the court from which execution issued for the sale of said lands and tenements, signed by the clerk, by order of said court, setting forth that sufficient proof has been made to the court that such sale was fairly and legally made; and on tender of the purchase money, or if the same or any part thereof be paid, then on proof of such payment and tender of the balance, if any, may execute to the said purchaser or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold; such deed shall be as good and ivalid in law, and have the same effect, as if the sheriff or other officer, who made the sale, had executed the same. SEC,. 457. If, on any sale made as aforesaid, there shall be in Appropriat;io of.overplus af;etr the hands of the sheriff or other officer, more money than is lstisiyig' exe,,: 2902 CIVIL PROCEDURE. [mH. 26G sufficient to satisfy the writ or writs of execution, with interests and costs, the sheriff or other officer shall, on demand, pay the balance to the defendant in execution, or his legal representatives. udmednot tre- SEC. 458. If any judgment or judgments, in satisfaction of ttitle of pur- which any lands or tenements are sold, shall at any time thereafter be reversed, each reversal shall not defeat or affect the title of the purchaser or purchasers; but, in such cases, restitution shall be made, by the judgrrment creditors, of the money, for which such lands or tenements were sold, with lawful interest from the day of sale. Executionsrust SEC. 459. No judgment -heretofore rendered, or which hereocate aelienr to after may be rendered, on which execution shall not have been 110 prejudice of teprojiof taken out and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor. But in all cases where judgment has been or may be rendered in the supreme court, and a special mandate awarded to the district court to carry the same into execution, the lien of the judgment creditor shall continue for one year after the first day of the term of the district court, to, which such manOF disasbilitie. date may be directed. Nothing in this subject contained shall be construed to defeat the lien of any judgment creditor, who shall fail to take out execution, and cause a levy to be made, as herein provided, when such failure shall be occasioned by appeal, proceedings in error, injunction or by vacancy in the office of sheriff or coroner, or the inability of such officer, until one year after such disability shall be removed. In all cases where real estate has been or may hereafter be taken on execution and appraised, and twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the court from which such execution issued, on motion of the Neow appraise- - plaintiff, to set aside such appraisement and order a new one lent upon faill- tice offered hento be made, or to set aside such levy and appraisement and award a new execution to issue, as the case may require. turnable in sixty SEC. 460. The sheriff or other officer, to whom, any writ of days. execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof. Judgments ren- SEC. 461. In all cases where judgment is rendered in any dered upon bail, bonds must spe- court of record within this Territory, upon any instrument of cify principal and securities. writing in which two or more persons are jointly and severally Ci. 26.] CIVIL PROCEDURE. 203 bound, and it shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound, signed the same as surety or bail, for his or their co-defendant, it shall be the duty of the clerk of said court, in recording the judgment thereon, to certify which of the defendants is principal debtor, and which are sureties or bail. And the clerk of the court aforesaid shall issue execution on such judgment, commanding the sheriff or other officer to cause the money to be made of such goods and chattels, lands and tenements, of the principal debtor, but for want of sufficient property of the principal debtor. to make the same, that he cause the same to be made of the goods and chattels, lands and tenements of the surety or bail. In all cases, the property, both personal and Property of principal to bo real, of the principal debtor, within the jurisdiction of the exhausted before going upon the court, shall be exhausted before any of the property of the lsuretieo. surety or bail shall be taken in execution. SEc. 462. Each householder, summoned to appraise real Fees ofarppraiser estate or stock in trade, under the provision of this chapter, shall be allowed and receive for his services the sum of fifty cents for each day he may be so engaged as such appraiser, to be collected on the execution, by virtue of which the property appraised was levied on, if claimed at the time of making the return of such appraisement. And when any householder, sum- Fine for neglect moned as aforesaid, shall fail to appear at the time or place f appraiser. appointed by the officer, and discharge his duty as appraiser, he shall, on complaint being made to any justice of the peace of the township in which such householder resides, forfeit and pay the sum of fifty cents for every such neglect, unless he can render a reasonable excuse. Such sum shall be collected by said justice, and paid in to the township treasurertfor the use of the township. SEC. 463. If any sheriff or other officer shall refuse or neg- iabilityoflsheriff for neglect ot lect to execute any writ of execution to him directed, which has duty, eubject to ten per cent. come to his hands, or shall neglect or refuse to sell any goods dim ges on moand chattels, lands and tenements, or shall neglect to call anl inquest and return a copy thereof, forthwith, to the clerk's office, or shall neglect to return any writ of execution to the proper court,'on or before the return day thereof, or shall neglect to return a just and perfect inventory, of all and singular, the goods and chattels, by him taken in execution, unless the said sheriff or other officer shall return that he has levied and made the amount of the debt, damages and costs, or shall re 204 CIVIL PROCEDURE. [CIH. 26. fuse or neglect, on demand, to pay over to the plaintiff, his agent or attorney of record, all moneys by him collected or received for the use of said party, at any time after collecting or receiving the same, except as provided in section four hundred and forty-nine, or shall neglect or refuse, on demand made by the defendant, his agent or attorney of record, to pay over all moneys by him received for any sale made, beyond what is sufficient to satisfy the writ or writs of execution, with interest and legal costs, such sheriff or other officer shall, on motion in court, and two days notice thereof in writing, be amerced in the amount of said debt, damages and costs, with ten per cent. thereon, to and for the use of said plaintiff or defendant, as the case may be. Same for clerk. SEC. 464. If any clerk of a court shall neglect or refuse, on demand made by the person entitled thereto, his agent or attorney of record, to pay over all money by him received in his official capacity, for the use of such persons, every such clerk may be amerced, and the proceedings against him and his sureties shall be the same as provided for, in the foregoing section, against sheriffs and their sureties. Jiatility for SEC. 465. When the cause of amercement is for refusing to withholding uoieey, amount pay over money collected as aforesaid, the said sheriff or other and ten per cent. officer shall not be amerced in a greater sum than the amount so withheld, with ten per cent. thereon. Returnonexecu- SEC. 466. When execution shall be issued in any county in tions issued to another county this Territory, and directed to the sheriff or coroner of another may be made by smail. county, it shall be lawful for such sheriff or coroner having the execution, after having discharged all the duties required of him by law, to enclose such execution by mail, to the clerk of the court who issued the same. On proof being made by such sheriff or coroner, that the execution was mailed soon enough to have reached,the office where it was issued, within the time prescribed by law, the sheriff or coroner shall not be liable for any amercement or penalty, if it do not reach the office in due time. Money may not SEC. 467. No sheriff shall forward by mail ally money be forwarded by matlwiwtnhUt in- made on any such execution, unless he shall be specially instructed to do it by the plaintiff, his agent, or attorney of o,otf mceootio record. In all cases of' a motion to amerce a sheriff, or other fitern days be- officer of any county from which the execution issued, notice fore first day of term. in writing shall be given to such officor, as hereinbefore required, by leaving it with him, or at his office, at least fifteen CH. 26.] CIVIL PROCEDURE. 205 days before the first day of the term at which such motion shall be made. All amercements, so procured, shall be entered on the record of the court, and shall have the same force and effect as a judgment. SEC. 468. Each and every surety of any sheriff or other Allthe sureties of an officer may officer, may be made party to the judgment rendered as afore- be made parties to the judgment. said, against the sheriff or other officer, by action to be commenced and prosecuted as in other cases; but the goods and Property of orf. cer must be exchattels, lands and tenements of any such surety, shall not be hauted ibefore proceeding liable to be taken on execution, when sufficient goods and against sureties chattels, lands and tenements of the sheriff or other officer, against whom execution may be issued, can be found to satisfy the same. Nothing herein contained shall prevent either party from proceeding against such sheriff or other officer, by attachment, at his election. SEC. 469. In cases where a sheriff or other officer may bewho sueoutexecution for his amerced, and shall not have collected the amount of the original own use. judgment, he shall be permitted to sue out an execution, and collect the amount of said judgment, in the name of the original plaintiff, for his use. CHAPTER 2. Proceedings in aid of Execution. SEC. 470. When a judgment debtor has not personal or when not sufflcient personal or real property, subject to levy on execution, sufficient to satisfy ral property the judgment, any equitable interest which he may have in codings. real estate, as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge, or other joint-stock company, or any interest he may have in any money, contracts, claims, or choses in action, due or to become due to him, or in any judgment or decree, or any money, goods, or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment by action, or as this chapter prescribes. SEC. 471. When an execution against a judgment debtor, When debtor re. quired to appear or one of several debtors in the same judgment, issued to the fsweorcojdgoernd sheriff of the county where he resides, or if he do not reside inghis property in the Territory, to the sheriff of the county where the judg — ment was rendered, or a transcript of a justice's judgment. has been filed, is returned unsatisfied, in whole or in part, the judgment creditor is entitled to an order of the probate judge of the county to which the execution was issued, re14 206 CIVIL PROCEDURE. [CH. 26. quiring such debtor to appear and answer concerning his property, before such judge, or a referee appointed by such judge, at a time and place specified in such order, within the county to which the execution was issued. Proof required SEC. 472. After the issuing of an execution against propof creditor before ordershall erty, and upon proof, by the affidavit of the judgment creditor issue. or otherwise, to the satisfaction of a probate judge, or a judge of the district court, of the county in which the order may be served, that the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may, by order, require the judgment debtor to appear, at a time or place in said county, to answer concerning the same; and such proceedings may thereupon be had, for the application of the property of the judgment debtor toward the satisfaction of the judgment, as are prescribed in this chapter. "When debtor SEC. 473. Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the judge may, upon proof to his satisfaction, by affidavit of the party or otherwise, that there is danger of the debtor leaving the Territory, or concealing himself, to avoid the examination herein mentioned, issue a warrant requiring the sheriff to arrest him, and bring him before such judge, within the county in which the debtor may be arrested. Such a warrant can be issued only by a judge of probate or a judge of the district court, of the county in which such debtor resides or may be arrested. Upon being brought before the judge, he shall be examined on oath, and other witnesses may be examined on either side; and if, on such examination, it appear that there is danger of the debtor leaving the Territory, and that he has property which he unjustly refuses to apply to such judgment, he may be ordered to enter into an JUndertaking. undertaking in such sum as the judge may prescribe, with one or more sureties, that he will, from time to time, attend for examination before the judge or referee, as shall be directed.:ay bo commit- In default of entering into such undertaking, he may be comted to jail in de. fault of bail. mitted to the jail of the county, by warrant of the judge, as for a contempt. rOmt Ecsedring SEC. 474. No person shall, on examination pursuant to on ground of this chapter, be excused from answering any question on the ground that his examination will tend to convict him of a fraud; but his answer shall not be used as evidence against him in a prosecution for such fraud. Ci. 26.] CIVIL PROCEDURE. 207 SEc. 475. After the issuing of execution against property, Sherif"'s receipt any person indebted to the judgment debtor may pay to the harge of any sheriff the amount of his debt, or so much thereof as may be ecution. necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid, or directed to be credited by the judgment creditor on the execution. SEC. 476. After the issuing or return of an execution against tPajrtiendebte property of a judgment debtor, or of any one of several debtors tqr may bprea in the same judgment, and upon proof by affidavit or otherwise, to the satisfaction of the judge, that any person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or corporation, or any officer or member thereof, to appear at. a specified time and place within the county in which such person or corporation may be served, with the order to answer, and answer the same. The judge may also) Notice in tie discretion of the in his discretion, require notice of such proceeding to becourttoparties given to any party in the action, in such manner as may seem to him proper. SEC. 477. Witnesses may be required, upon the order of witless b el required to teethe judge, to appear and testify upon any proceedings under tifythis chapter, in the same manner as upon the trial of an issue. SEC. 478. The party or witness may be required to attend Testimony, how before the judge, or before a referee appointed by the court or judge. If before a referee, the examination must be taken by the referee, and certified by the judge. All examinations and answers before a judge or a referee, under this chapter, must be on oath; but when a corporation answers, the answer must be on oath of an officer thereof. SEC. 479. The judge may order any property of the judg- Property in hands of any ment debtor, not exempt by law, in the hands either of pronnot cxhimself or any other person or corporation, or due to the exception of earnings of three judgment debtor, to be applied toward the satisfaction of the monthbe tervi judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, can not be so applied, when it is made to appear by the debtor's affidavit or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. SEC. 480. The judge may also, by order, appoint the sheriffpoint reeivaers of and prevent of the proper county, or other suitable person, a receiver oftransfer of prop.. erty. 208 CIVIL PROCEDURE. [CH. 26. the property of the judgment debtor, in the same manner and with like authority as if the appointment was made by the court. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt by law, and any interference therewith. Receivers may SEC. 481. If it shall appear that the judgment debtor has sell equitable interest in real es-any equitable interest in real estate in the county in which proceedings are had, as mortgagor or mortgagee, or otherwise, and the interest of said debtor can be ascertained as between himself and the person or persons holding tilhe legal estate, or the person or persons having a lien on or interest in the same, without controversy, as to the interest of such person or persons holding such legal estate or interest therein, or lien on the same, the receiver may be ordered to sell and convey such real estate, or the debtor's interest therein. Such sale Manner of sale. shall be conducted, in all respects, in the same mahner as is provided by this code for the sale of real estate upon execution, and the proceedings of sale shall, before the execution of the deed, be approved by the court in which the judgment was rendered, or the transcript has been filed as aforesaid, as in cases of sale upon execution. When sheriff ap SEC. 482. If the sheriff shall be appointed receiver, he and pointed receiver, sureties liable, his sureties shall be liable on his official bond for the faithful discharge of his duties as receiver; if any other person shall be appointed receiver, he shall give a written undertaking in such sum as shall be prescribed by the judge, with one or more sureties, to the effect that he will faithfully discharge the duties of receiver, and he shall also take an oath to the Other receivers same effect before acting as such receiver. The undertaking, to give security mentioned in this section, shall be to the Territory of Kansas, and actions may be prosecuted for a breach thereof, by any person interested, in the same manner as upon a sheriff's official bond. ontinue pro- SEC. 483. The judge or referee, acting under the provisions ceedings to completion. of this chapter, shall have power to continue his proceedings, from time to time, until they shall be completed. When referee to SEC. 484. The judge may, in his discretion, order a referreport evidence or facts. ence to a referee, agreed upon or appointed by him, to report the evidence or the facts. SEC. 485. If any person, party, or witness disobey an order of the judge or referee, duly served, such person, party, or witness may be punished by the judge as for a contempt. CH. 26.] CIVIL PROCEDURE. 209 SEC. 486. The order mentioned in sections four hundred~ rders gto be in and seventy-one, four hundred and seventy-two, four hundred signed by the and seventy-six, and four hundred and seventy-seven, shall be in writing, and signed by the judge making the same, and shall be served as a summons in other cases. The judge shall reduce all his orders to writing, which, together with a minute of his proceedings, signed by himself, shall be filed with the clerk of the court of the county in which the judgment is rendered, or the transcript of the justice filed, and the clerk shall enter on his execution docket the time of filing the same. SEC. 487. That the judge shall allow to clerks, sheriffs, Compensation. referees, receivers, and witnesses such compensation as is allowed for like services in other cases, to be taxed as costs in the case, and shall enforce, by order, the collection thereof from such party or parties as ought to pay the same. SEC. 488. That the probate judge shall not be allowedj Tone to probate judge; fees to any fees for his services under this chapter, but the clerkprobate clerk. shall be allowed such fees as are allowed for similar services in other cases. CHAPTER 3. Executions against the Person. SEC. 489. An execution against the person of the judgment Execution against person debtor shall require the officer to arrest such debtor, and of debtor.n commit him to the jail of the county until he pay the judgment, or is discharged according to law. SEC, 490. An execution against the person of the debtor when dit maybe may be issued upon any judgment for the payment of money: First, When the judgment debtor has removed, or begun to remove, any of his property out of the jurisdiction of the court, with intent to prevent the collection of money due on the judgment. Second, When he has property, rights in action, evidences of debt, or some interest or stock in some corporation or company, which he fraudulently conceals with the like intent. Third, When he has assigned or disposed of all or any part of his property, or rights in action, or has converted the same into money, with intent to defraud his creditors, or with the intent to prevent such property from being taken in execution. Fourth, When he fraudulently contracted the debt, or incurred the obligation, upon which the judgment was rendered. Fifth, When he was arrested on an order before judgment, and has not been discharged as 210 CIVIL PROCEDURE. [Cii. 26. an insolvent debtor, or the order has not been set aside as improperly made. By whoi issued. SEC. 491. An execution against the person of the debtors except as prescribed in section four hundred and ninety-three, can be issued only when the same is allowed by the supreme court, the district court or probate court, or any judge of either upon being satisfied by the affidavit of the judgment creditor or his attorney, and such other evidence as may be presented, of' the existence of one or more of the particulars mentioned in section four hundred and ninety. When by a jus- SEC. 492. A justice of the peace may issue an execution tice of the peace against the person of a judgment debtor, upon being satisfied of the existence of one or more of the same particulars, by the like affidavit and evidence. When an execu- SEC. 493. In all cases in which the judgment debtor was artion may issue as matterofcourse. rested before judgment, and has not been released from imprisonment by an application for relief, as an insolvent debtor, and where the order for such arrest has not been adjudged improper, an execution against the person of such judgment debtor may issue of course. How execution SEC. 494. Any person taken in execution as aforesaid, shall against the person discharged. be discharged by delivering or setting off to the officer serving the same, if issued from a court of record, real or personal property, if issued from a justice of the peace, personal property only, sufficient to satisfy the judgment and costs for which the writ is issued. Entitled to prison bounds. SEC. 495. Any person imprisoned under the provisions of Am ended-see Ch. 1G5-2. this article, shall be entitled to prison bounds as prescribed by law; but, in case the person shall be out of jail, in prison bounds, the judgment creditor, upon whose judgment he was imprisoned, shall be entitled to execution against the lands and Creditorentitled tenements, goods and chattels of the debtor, and all other remto exution. edies prescribed by this code for the collection of debts. Death does not SEC. 496. The death of a person, under arrest in an action satisfy the judgtneult. does not satisfy the judgment; but an execution may issue thereon as if no arrest had been made. when debtor to SEC. 497. If a person imprisoned under an order of arrest, be dischargcd in ten days. made before judgment, is not charged in execution within ten days after judgment, he shall be discharged from such imprisonment. eOfdiarl.gein SEC. 498. In cases of commitment under this chapter, or upon arrest before or after judgment in civil cases, the person :CH. 26.j CIVIL PROCEDURE. 211 imprisoned, in case of his inability to perform the act or to endure the imprisonment, may be discharged from imprisonment by the court or judge committing him, or the court or judge thereof in which the judgment was or might be rendered, on such terms as may be just. CHAPTER 4. Executions for the Delivery of Real and Personal Property. SEC. 499. If the execution be for the delivery of the posses- Execution for delivery of propsion of real or personal property, it shall require the officer to erty to describe deliver the same, particularly describing the property to the party entitled thereto, and may, at the-same time, require the officer to satisfy any costs or damages, recovered in the same judgment, out of the goods and chattels of the party against whom it was rendered, and for the want of such goods and chattels, then out of the lands and tenements, and in this respect it shall be deemed an execution against the property. SEC. 500. When the judgment is not for the recovery of money Judgniets Otherl or real property, the same may be enforced by attachment, by ovlery of money the court rendering judgment, upon motion made, or by a rule how enforced. of the court upon the defendant; but, in either case, notice of the motion or a service of a copy of the rule shall be made on the defendant, a reasonable time before the order of attachment is made. CHAPTER 5. Judgment before Justices of the Peace. SEC. 501. In all cases in which a judgment shall be rendered Judgments in justice court by a justice of the peace, the party in whose favor the judg- may be filed by "-J -" J~~- v'~^~ rVWV) — VrWIJ C-~ I~ —I~V -VI~~,"' II transcript in ment shall be rendered, may file a transcript of such judgment, district co'rt. in the office of the clerk of the district court, of the county in which the judgment was rendered, and thereupon the clerk shall, on the day on which the same shall be filed, enter the case on the execution docket, together with the amount of the judgment and time of filing the transcript. SEC. 502. Such judgment, if the transcript shall be filed in Whentralsj cripts filed to teterm time, shall have a lien on the real estate of the judgment come liens. n v Amended, ch. debtor, from the day of the filing; if filed in vacation, shall 28-3. have a like lien from the first day of the next. term of the court, in the same manner and to the same extent, as if the judgment had been rendered in the district court. SEC. 503. Execution may be issued thereon, to the sheriff, sue of execlY ~~~~~~~~~~~~~tiens 212 CIVIL PROCEDURE. [CH. 26. by the clerk of the court, in the same manner as if the judgment had been taken in court; and the sheriff shall execute and return the same, as other executions; and in case of sale Sales of realty of real estate, his proceedings shall be examined and approved to be approved by the court. by the court, as in other cases. Justice to certi- SEC. 504. The justice of the peace, shall certify on the transfy payment. cript the amount, if any, paid on such judgment. The costs of the transcript, the filing of the same, and the entry of the case on the execution docket, shall be paid by the party filing the Costs of filing, by whom paid. same, and not taxed to the other party. TITLE XV. MISCELLANEOUS PROCEEDINGS. CIJAPTER 1. Offer to Compromise. C0ompromise. SEC. 505. The defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney, an offer in writing, to allow judgment Notice of offer to be taken against him for the sum specified therein. If the within five days. plaintiff accept the offer and give notice thereof to the defendant or his attorney, within five days after the offer was served the offer and an affidavit that the notice of acceptance was delivered within the time limited, may be filed by the plaintiff, or Acceptanc filed the defendant may file the acceptance with a copy of the offer verified by affidavit; and, in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given Offer withdrawn in the period limited, the offer shall be deemed withdrawn, and not evidence., When plaintiff shall [not] be given in evidence, or mentioned on the trial. If pays costs. the plaintiff fails to obtain more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer. Affect of offer, SEC. 506. The making of an offer pursuant to the provisions contained in the foregoing section, shall not be a cause for a continuance of an action or a postponement of the trial. CHAPTER 2. Submitting a Controversy. ef cases agreed SEC. 507. Parties to a question, which might be the subject ulpon. of a civil action, may without action agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to ally court, which would have jurisMuslt be real. diction if an action had been brought. But it must appear by CH. 26.] CIVIL PROCEDURE. 213 affidavit, that the controversy is real, and the proceedings in good faith to determine the rights of the parties. The court shall thereupon hear and determine the case, and render judgment as if an action were pending. SEC. 508. The case, the submission and the judgment shall What constitutes the record. constitute the record. SEC. 509. The judgment shall be with costs, may be enforced, Judgment arid costs as in other and shall be subject to reversal, in the same manner as if it had actions. been rendered in an action, unless otherwise provided in the.submission. CHAPTER, 3. Offer to Confess-Judgmlnent. SEC. 510. After an action for the recovery of money is Ofudgmer to confess'brought, the defendant may offer in court to confess judgment ctions comfor part of the amount claimed, or part of the causes involved in the action. Whereupon, if the plaintiff, being present, re-fuse to accept such confession of judgment in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount, and of the the time of making it, as the court shall deem reasonable, fail to attend, and on the trial do not recover more than was so offered to bie confessed, such plaintiff shall pay all the costs of When plaintiff shall pay costs. the defendant incurred after the offer. The offer shall not be deemed to be an admission of the cause of action, or the amount to which the plaintiff is entitled, nor be given in evidence upon elrceot.the trial. SEC. 511. Before an -action for the recovery of money is Offerto confeis juldgment before brought agai-st any person, he may go into the court of the actinisbrought county of his residence, or of that in which the person having the cause of action resides, which would have jurisdiction of the action, and offer to confess judgment, in favor of such person, for a specified sum, on such cause of action. Whereupon, if Plaintiffslall pay costs in an *such person, having had such notice that the offer would bePactin for smine cause if he fails. made, of its amount, and of the time and place of making it,to~recover more than amount of as the court shall deem reasonable, do not attend to accept the offer. confession, or attending refuse to accept it, and shall afterwards commence an action upon such cause, and not recover more than the amount so offered' to be confessed, he shall pay all the costs of the action, and on the trial thereof, the offer shall not be deemed to be an admission of the cause of action, or amount Offer not evito Which the plaintiff' is entitled, nor be given in evidence. dence. 214 CIVIL PROCEDUREo [CH. 26. CHAPTER 4. Proceedings by Sureties. Proceedings of SEC. 512. A surety may maintain an action against his sureties against principal fbr principal, to compel him to discharge the debt or liability, for discharge of ldebt. which the surety is bound, after the same has become due. Indemnity be- SEC. 513. A surety may maintain an action against his prinitbre due, cipal, to obtain indemnity against the debt or liability for which he is bound, before it is due, whenever any of the grounds exist, upon [which,] by the provisions of this code, an order may be made for arrest and bail, or for an attachment. Remediets in fa SEC. 514. In such action, the surety may obtain any of the provisional remedies mentioned in title eight, upon the grounds and in the manner therein described. CHAPTER 5. Xfotions and Orders.. NMotiols. SEC. 515. A motion is an application for an order, addressed to the court, or a judge in vacation, by any party to a suit or proceeding, or one interested therein. 3everal objects SEC. 516. Several objects may be included in the same moincluded in mio1tion i tion, if they all grow out of, or are connected with the action or proceeding in which it is made. Noticeof nmotion SEC. 517. Where notice of a motion is required, it must be to be made in writing; what it in writing, and shall state the names of the parties to the action shall state. or proceeding in which it is made, the name of the court or judge before whom it is to be made, the place where, and the day on which it will be heard, the nature and terms of the order or orders to be applied for, and if affidavits are to be used on the hearing, the notice shall state that fact, and it shall be served a reasonable time before the hearing. Bfy whof serviced SEC. 518. Notices of motions, mentioned in this chapter, may Oiwhomieried. be served by a sheriff, coroner or constable, or by any disinterested person, and the return of any such officer or affidavit of any such person, shall be proof of service; the service shall be on the party, or his attorney of record, if the said party or his attorney be resident within the county in which the motion is made, and in case there is more than one party adverse to sucth motion, service shall be made upon each party or his attorney. How made. SEC. 519. The service of a notice shall be made as is required by law for the service of a summons, and when served by an officer, he shall be entitled to like fees. 1otions without SEC. 520. Motions to strike pleadings and papers from the C,. 26.] CIVIL PROCEDURE. 215 files, may be made with or without notice, as the court or judge may direct. SEC. 521. Every direction of a court or judge made, or en- Orders. tered in writing, and not included in a judgment, is an order. SEC. 522. Orders, made out of court, shall be forthwith en- Out of court. tered by the clerk in the journal of the court, in the same manner as orders made in term. TITLE XVI. ERROR IN CIVIL CASES. SEC. 523. A judgment rendered, or final order made by a Reversal of judgment or justice of the peace, or any other tribunal, board or officerorders. exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court. SEC. 524. An order affecting a substantial right in an ac- Final ordrs may be reversed. tion, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this title. SEc. 525. A judgment rendered or final order made by the Madebyprobate court, reversed Probate Court, may be reversed, vacated or modified by the by districtcoulrt for errors of District Ccurt, for errors appearing on record. record. SEc. 526. A judgment rendered or final order made by any cAmn28 —-ade court, board or tribunal mentioned in the three preceding sec- by justice oft tions, may be reversed, vacated or modified by the Supreme court oayedistric versed by suCourt, for errors appearing on the record. premecourt, for SEC. 527. The proceedings to obtain such reversal, vacation same cause. Proceedings in or modification, shall be by petition, to be entitled petition in error. error, filed in a court having power to make such reversal, vacation or modification, setting forth the errors complained of, and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service servico. on the attorney of record, in the original case, shall be sufficient. The summons shall notify the adverse party that a petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first dav of the term of the court, if issued in vacation. If issued in term time, it shall be returnable on a day therein named, if the last publication or service of the summons shall be made ten days before the end of the term, the case shall stand for hearing at that term. 216 CIVIL PROCEDURE, [CH. 26, Summons issued SEC. 528. The summons mentioned in the last section, shall, upon the written precipe of the plaintiff in error or his attorney,,be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in If issued to a error or his attorney of record may be; and if the writ issue foreign county. sheriff may re- to a foreign county, the sheriff thereof may return the same turn by mail. by mail to the clerk, and shall be entitled to the same fees as if the sarme had been returnable to the District Court of the Defendant niay county in which such officer resides; the defendant in error or waive summons in writing. his attorney, may waive, in writing, the issuing or service of the summons. Petition filed. SEC. 529. The plaintiff in error shall file with his petition,. a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified. Authenticated SEC. 530. Judges of courts of probate, justices of the peace, transcript to be furnished. and other judicial tribunals having no clerk, and the clerks of every court of record, shall, upon request, and being paid the lawful fees therefor, furnish an authenticated transcript of the proceedings containing the judgment or final order in said court, to either of the parties to the same, or to any person interested in procuring such transcript. Proceedings in SEC. 531. No proceeding to reverse, vacate or modify any error for probate ordistrictcourts judgment or final order rendered in the Probate Court or Disnot to stay exe. cution except se- trict Court, except as provided in the next section and the curity be given. fourth subdivision of this section, shall operate to stay execution, unless the clerk of the court in which the record of such judgment or final order shall be, shall take a written undertaking, to be executed on the part of the plaintiff in error, to the adverse party with one or more sufficient sureties as folSecurity requir- lows: when the judgment or final order sought to be reversed, ed when the judgment re- directs the payment of money, the written undertaking shall quires the payment of money. be, in double the amount of the judgment or order, to the effect, that the plaintiff in error will pay the condemnation money and costs, in case the judgment or final order shall be When it directs affirmed in whole or in part. When it directs the execution the execution of aconveyance, &c of a conveyance or other instrument, tle undertaking shall be in such a sum as may be prescribed by any court of record in this Territory, or any Judge thereof, to the effect that the plaintiff in error will abide the judgment, if the same shall when it directs be affirmed, and pay the costs; when it directs the sale or dethe sale or deliv. ery of possession livery of possession of real property, the undertaking shall be of real prope ty. in such sum as may be prescribed by any court of record in UC. 26.] CIVIL PROCEDURE. 217 this Territory, or any Judge thereof, to the effect that during the possession of such property by the plaintiff in error, he will not commit or suffer to be committed, any waste thereon, and if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the date of the undertaking until the delivery of the possession pursuant to the judgment, and all costs. When the judgment is for the sale When for sale of mortgaged of mortgaged premises, and the payment of a deficiency aris- property. ing from the sale, the undertaking must also provide for the payment of such deficiency. When it directs the assignment or delivery of documents, they may be placed in the custody assignment or of the clerk of the court in which the judgment was rendered, lrenty of docto abide the judgment of the appeal court, or the undertaking shall be in such sum as may be prescribed as aforesaid, to abide the judgment and pay costs, if the same shall be affirmed. SEC. 532. Instead of the undertaking prescribed in the Conveyance, &c. may be deposisecond subdivision of the last section, the conveyance or other ted with clerk to abide decision instrument may be executed and deposited with the clerk of of court. the court in which the judgment was rendered or order made, to abide the judgment of the appellate court. SEC. 533. Before the written undertaking mentioned in see- Securities must be approved by tion five hundred and thirty-one shall operate to stay execu- clerkand signed tion of the judgment or order, the execution of the undertaking and the sufficiency of sureties, must be approved by the court in which the judgment was rendered or order made, or by the clerk thereof, and the clerk shall endorse said approval, signed by himself, upon the undertaling, and file the same in his office, for the defendant in error. SEC. 534. In an action arising on contract for the payment Judgment may be enforced by of money only, notwithstanding the execution of the under- defendantin ortaking in the last section mentioned, to stay proceedings, ifsecurity. the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below or a Judge thereof in vacation, proceed to enforce the judgment. Such security must be an undertaking, executed to the plaintiff in error, by at least two sufficient sureties, to the effect that if the judgment be reversed or modified, he will make full restitution to the plaintiff in error, of the money by him received under the judgment. SEC. 535. No proceeding for reversing, vacating or modify-Proceedings in error must be 218 CIVIL PROCEDURE. [Cu. 26. wommhiere ing judgments or final orders, shall be commenced -unless i within three years, exept within three years after the rendition of the judgment or makty. ing of the final order complained of, or in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind or imprisoned, within three years as aforesaid, exclusive of the time of such disability. No proceeding SEC. 536. No proceeding to reverse, vacate or modify any shall stay execution witheout se-judgment rendered or final- order made by a Justice of the curity being of glaentiffithe rrr Peace, shall operate as a stay of execution, unless the clerk of for costs and judgment. the District Court shall take a written undertaking to the deAmended, ch. b 2-5~. fendant, executed on the part of the plaintiff in error, by one or more sufficient sureties, to the effect that the plaintiff will pay all the costs which have accrued or may accrue on such proceedings in error, together with the amount of any judgment that may be rendered against such plaintiff in error, either on the further trial of the case, after the judgment of the court below shall have been set aside or reversed, or upon Time of present- and after the affirmance thereof in the District Court. The ing. person entitled to such proceeding shall have the same time for prosecuting the same, before he is barred, as is provided in the last section, unless the said judgment has been paid off or satisfied prior to the commencement of such proceedings. How judgment SEC. 537. Execution of the judgment or final order of any maybe stayed. judicial tribunal, other than those enumerated in this title, may be stayed on such terms as may be prescribed by the court or a Judge thereof, in which the proceedings are pending. Of judgment on SEC. 538. When a judgment or final order shall be reversed, reversal of proceedings. either in whole or in part, in the District Court or Supreme Court, the court reversing the same shall proceed to render such judgment as the court below should have rendered or remand the cause to the court below for such judgment; and the court reversing such judgment or final order, shall not issue execution in causes that are removed before them on error, on which they pronounce judgment as aforesaid, but shall send Mandate to a special mandate to the court below, as the case may require, court below. to award execution thereupon; and such court, to which such special mandate is sent, shall proceed in such cases in the same manner as if such judgment or final order had been rendered therein; and, on motion and good cause shown, it Stay of execu- may suspend any execution, made returnable before it, by ortion by court bein the same- manner as low. der of the District or Supreme Court, in the same manner as CH. 26.] CIVIL PROCEDURE. 219 if such execution had been issued friom its own court; but such power shall not extend further than to stay proceedings, until the matter can be further heard by the District or Sapremle Court, as the case may be. SEC. 539. When a judgment or final order is reversed, the When jodgmlent reversed., plainplaintiff in error shall recover his costs, and when reversed in tiff pays cost, when reversed part and affirmed in part, costs shall be equally divided be-n part, csts ditween the parties. SEc. 540. A mistake, neglect or omission of the clerk shall Mistakes ofclerk not ground of not be a ground of error, until the same has been presented errto and acted upon in the court in which the mistake, neglect or:admission occurred. SEC. 541. Rendering judgment, before the action stood for Judgmentefore trial a clerical trial, according to the provisions of this code, shall be deemed error. a clerical error. SEC. 542. Writs of error and certiorari, to reverse, vacate or Writs of error:;and.certiorari modify judgements or final orders, in civil cases, are abol. abolished. ished, but courts shall have the same power to compare, complete and perfect transcripts of the proceedings containing judgment or final order sought to be reversed, o0 be furnished as they heretofore had under writs of error and certiorari. SEC. 543. If the judgment of a justice of the peace, taken Whe1e1 udgmext of justice of,on error, as herein provided, to the District Court be affirmed peace, affirmed with costs to it shall be the duty of such court to render judgment against plaintiff, clerk to certify decithe plaintiff in error, for the costs of suits, and award execu- sion toju stice.:tion therefor; and the court shall thereupon order his clerk to certify its decision in the premises to the justice, that the judgment affirmed may be enforced, as if such proceedings in error had not been taken; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judgment had been rendered in the District Court. SEC. 544. When the proceedings of a justice of the peacewhenreversed or set aside, cos ts are taken in error to the District Court, in the manner afore- against defendant in error. said, and the judgment of such justice shall be reversed or set aside, the court shall render judgment of reversal, and for the costs that have occurred up to that time, in favor of the plaintiff in error, and award execution therefor; and the same shall be retained by the court for trial and final judgment, as in cass of appeal. SEC. 545. The final orders or decrees of Courts of Chancery, Howdecisionsin chancery may heretofore rendered or which may hereafter be rendered, in any be reversed. 220 CIVIL PROCEDURE. [CH.26. chancery proceeding pending at the time this code takes effect, may be reviewed in the same manner and within the same time as if this code had not taken effect; and all suits in chancery, pending at that time, may be prosecuted to final decree in like manner. Proceedings to Reverse, Vacate or Xfodify Judgments and Orders in the Courts in which they are Rendered. theversin.g pro- SEC. 546. That the Probate Court or District Court shall ceedings in courts where have power to vacate or modify its own judgments or orders they originated. at or after the term at which such judgment or order was made: First, By granting a new trial for the cause, within the time and in the manner prescribed in section three hunm,dred and eleven. Second, By a new trial granted in proceedings against defendants constructively summoned, as provided in section seventy-eight. Third, For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. Fourth, For fraud practiced by the successful party, in obtaining the judgment or order. Fifth, For erroneous proceedings against an infant, married woman or person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth, For the death of one of the parties before the judgmneat in the action. Seventh, For unavoidable casualty or misfortune, preventing the party from prosecuting or defending Eighth, For errors in a judgment, shown by an infant in twelve months after arriving at full age, as prescribed in section three hundred and ninety-eight. Ninth, For taking judgments upon warrants of attorney, for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment. Proceedings to SEC. 547. The proceedings to correct mistakes or omissions correct mistakes of clerk. 0of the clerk or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term. Modifications of SEC. 548. The proceedings to vacate or modify the judgment judgment. or order, on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of section five hundred and forty-six, shall be by petition verified by affidavit, setting forth the -udg Cu. 26.] CIVIL PROCEDURE. 221 ment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition, a summons shall issue, and be served as in the commencement of an action. SEC. 549. The court may first try and decide upon theGrounds for modifying to grounds to vacate or modify a judgment or order, beforehave preference over validity of trying or deciding upon the validity of the defense or cause defense. of action. SEC. 550. A judgment shall not be vacated on motion or Judgment not vacated withoat petition, until it is adjudged that there is a valid defense to the valid defense. action on which the judgment is rendered, or, if the plaintiff seeks its vacation, that there is a valid cause of action; and, where a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment. SEC. 551. The party seeking to vacate or modify a judg-Injunction for suspending proment or order, may obtain an injunction suspending proceed- ceedings by affidavit or exhibiings on the whole or part thereof, which injunction may be tion ofrecord. granted by the court or any judge thereof, upon its being rendered probable, by affidavit or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. SEC. 552. When the judgment was rendered before the ac- Sudpension of tion stood for trial, the suspension may be granted as provided in the last section, although no valid defense to the action is shown; and the court shall make such orders concerning the executions to be issued on the judgment, as shall give to the defendants the same rights of delay he would have had if the judgment had been rendered at the proper time. SEC. 553. Proceedings to vacate or modify a judgment or Time ofcommencing proorder, for the causes mentioned in subdivisions four, five andceedingsto modify or vacate seven of section five hundred and forty-six, must be commenced udgmlent within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, married woman or person of unsound mind, and then within two years after removal of such disability. Proceedings, for the causes mentioned in subdivisions three and six of the same section, shall be within three years, and in subdivision nine, within one year after the defendant has notice of the judgment. SEC. 554. The provisions of this title, subsequent to section To what court applicable. five hundred and forty-five, shall: apply to all the courts of record of the Territory, so far as the same may be applicable to the judgment or final orders of such courts. 15 222 CIVIL PROCEDURBE [CO. 2(6 TITLE XVII. COSTS. CHAPTER 1. Security for SEC. 555. In all cases in which the plaintiff is a non-resident: costs when required, andhow. Of the county in which the action is to be brought, before commencing such action, the plaintiff must furnish a sufficient surety for costs. The surety must be a resident of the county where the action is to be brought, and approved by the clerk. His obligation shall be complete, simply by indorsing the summons, or signing his name on the complaint as security for costs. He shall be bound for the payment of all costs which may be adjudged against the plaintiff, in the court in which the action is brought, or in any other to which it may be carried,. and for the costs of the plaintiffs witnesses, whether the plaintiff obtained judgment or not. Action dismiss- SEC. 556. An action, in which security for costs is required ed when security required and by the last section, and has not been given, shall be dismissed on the motion and notice by the defendant, at any proper time before judgment, unless in a reasonable time, to be allowed by the court, such security for costs be given. When plaintiff SEC. 557. If the plaintiff in an action, after its commencebecomes nonresidentshall ment, becomes a non-resident of the county in which it is give security. brought, he shall give security for costs, in the manner and under the restrictions provided in the two preceding sections. Defendant may SEC. 558. In, an action in which security for costs has been move for additional security if given, the defendant may, at any time before judgment, after not given action dismissed. reasonable notice to the plaintiff, move the court for additional security on the part of the plaintiff, and if, on such motion, the court be satisfied that the surety has removed from this Territory, or is not sufficient, the action may be dismissed, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff. Judgment SEC. 559. After final judgment has been rendered in an acagainst surety for costs. tion in which security for costs has been given, as required by this chapter, the court, on motion of the defendant or any other person having a right to such costs, or any part thereof, after ten days' notice of such motion, may enter up judgment in the name of the defendant or his legal representatives, against the surety for costs, his executors or administrators, for the amount of costs adjudged against the plaintiff, or so much thereof as CGa. 26.] CIVIL PROCEDURE, 223 may be unpaid. Execution may be issued on such judgment as in other cases, for the use and benefit of the persons entitled to such costs. SEC. 560. If any informer, under a penal statute to whom Informers, except officers, disthe penalty, or any part thereof, if recovered, is given, shall missing suits to dismiss his suit or prosecution, or fail in the same, he shall pay all costs accruing on such suit or prosecution, unless he be an officer, whose duty it is to commence the same. SEc. 561. Where defendants disclaim having any title or in- Defendants shall terest in land or other property, the subject matter of the ac- csts.in certain tion, they shall recover their costs, unless for special reasons the court decide otherwise. SEC. 562. Unless otherwise provided by statute, the costs of Costs of motions motions, continuances, amendments and the like, shall be taxed by the court. and paid as the court, in its discretion, may direct. SEC. 563. Where it is not otherwise provided by this and Judgmenttto carry costs other statutes, costs shall be allowed, of course, to the plaintiff, where it is not otherwise pro. upon a judgment in his favor, in actions for the recovery ofvided. money only, or for the recovery of specific, real or personal property. SEOc. 564. If it shall appear that a justice of the peace has Actions within the jurisdiction jurisdiction of an action, and the same has been brought in any of justices of peace, when other court, the plaintiff shall not recover costs; and, in all ac- brought in other courts recover tions for libel, slander, malicious prosecution, assault, assaultno costs. and battery, false imprisonment, criminal conversation or seduc- whe damages in certain cases tion, actions for nuisance, or against a justice of the peace for der five dolla urs misconduct in office, if the damages assessed be under five dol- recover nocost lars, the plaintiff shall not recover any costs. SEC. 565. Costs shall be allowed, of course, to any defend- costs allowed to ant, upon a judgment in his favor, in the actions mentioned in the last two sections. SEc. 566. In other actions, the court may award and tax Courtmayaward: and tax costs in costs, and apportion the same between the parties on the same other cases. or adverse sides, as in its discretion it may think right and equitable. SEC. 567. Where several actions are brought on one bill of Action against several parties exchange, promissory note or other obligation, or instrument to same obligation, costs of one:in writing, against several parties who might have been joined action to be reas defendants in the same action, as allowed by section fortyfive, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against, in the other actions, were, at the commencement of the previous action, openly within the Territory. 224 CIVIL PROCEDURE. [CH. 26. Summons issueo d SEC. 568. When a summons is issued to another county than to another coun-' ty may be re- lth t in which the action or proceeding is pending, it may be turned by mail; t fees of sheriff. returned by mail, and the sheriff shall be entitled to the same fees as if the summons had issued in the county of which he is sheriff. TITLE XVIII. ACTIONS AND PROCEEDINGS IN PARTICULAR CASES. CHAPTER 1. Actions concerning Real Property. Actions against SEC. 569. An action may be brought by any person in posadverse claim-nits to real es- session, by himself or tenant, of real property, against any tate by parties oa in possession. person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest. What petition SEC. 570. In an action for the recovery of real property, it shall contain. shall be sufficient if the plaintiff state in his petition, that he has a real estate therein and is entitled to the possession thereof, describing the same, as required by section one hundred and thirty-six, and that the defendant unlawfully keeps him out of the possession. It shall not be necessary to state how the plaintiff's estate or ownership is derived. IAnswer. SEC. 571. It shall be sufficient in such action, if the defendant, in his answer, deny generally the title alleged in the petition, or that he withholds the possession, as the case may be; but if he deny the title of the plaintiff, possession by the deDefending for a fendant shall be taken as admitted. Where he does not defend part shall describe it. for the whole premises, the answer shall describe the particular part for which defense is made. Tenants in com- SEC. 572. In an action by a tenant in common of real prop_son. erty against a co-tenant, the plaintiff must, in addition to what is required in section five hundred and seventy, state in his petition that the defendant either denied the plaintiff's right or did some act amounting to such denial. Where right to SEC. 573. In an action for the recovery of real property, recover terminates during where the plaintiff shows a right to recover at the time the acpendency of action, plaintiff tion was commenced, but it appears that his right has termialust recover. nated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover for withholding the property. rarty may de- SEC. 574. In an action for the recovery of real property, the mnand new trial at any timne dur- party against whom judgment is rendered, may, at any time in- the term. during the term at which the judgment is rendered, demand. another trial by notice on the journal, and thereupon the judg CH. 26.] CIVIL PROCEDURE. 225 ment shall be vacated, and the action shall stand for trial at the next term., SEC. 575. No further trial can be had in such action, except Now trial uponi appeal. upon appeal, unless for good cause shown, as in other actions. SEC. 576. The parties in an action for the recovery of real tatutes which property, may avail themselves, if entitled thereto, of the re-[Seech. 25.o lief of the statutes in force for the relief of occupying claimants of land. SEC. 577. The action of waste is abolished, but any proceed- Aotloens fw wast ing heretofore commenced or judgment rendered, or right acquired, shall not be affected thereby; and where the action of waste is specially mentioned and authorized in any statute, it may be: used until otherwise provided, but it shall be commenced and proceeded in throughout, in the manner prescribed for the civil action of this code. Wrongs heretofore remedi- Howprovided able by actions of waste, are subjects of action as other wrongs, and the same relief shall be granted, as may now be granted under the action of waste. CHAPTER 2. Actions on Offcial Securities. SEC. 578. When an officer, executor or administrator within lorfeiture of ofthis Territory, by misconduct or neglect of duty, forfeits his bond or renders his sureties liable, any person injured thereby or who is, by law, entitled to the benefit of the security, may bring an action thereon in his own name, against the officer, executor or administrator and his sureties, to recover the Injured parties may sue the amount to which he may be entitled by reason of the delin- sureties quency. The action may be instituted and proceeded in on aAction ou atcercertified copy of the bond, which copy shall be furnished by the bond. person holding the original thereof. SEC. 579. A judgment in favor of a party for one delin- Sretiesfliable for all official quency, does not preclude the same or another party from an acts. action otl the same security for another delinquency. CHAPTER 3. Proceedings upon Mandamus. SEC. 580. The writ of mandamuns may be issued to any in- kmadaimu, t,' ferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. But, though it cainotcontrol may require an inferior tribunal to exercise its judgment or tion. proceed to the discharge of any of its functions, it can not control judicial discretion. 226 CIVIL PROCEDURE. [Ca. 26. When it may SEC. 581. This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneMay issue on information. ficially interested. Whatalterna- SEc. 582. The writ is either alternative or peremptory. tive writ must state. The alternative writ must state concisely the facts showing the obligation of the defendant to perform the act, and his omission to pei form it, and command him that immediately upon the receipt of the writ, or at some other specified time, he do the act required to be performed or show cause before the court whence the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as he is cornWhat peremp- manded. The peremptory writ must be in a similar form extory writ smust state. cept that the words requiring the defendant to show cause why he has not done as commanded, must be omitted. When aperemp- SEC. 583. When the right to require the performance of the tory writ allowed, act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases, the alternative writ must be first issued. Motion upon SEC. 584. The motion for the writ must be made upon affiaffidavit, notice to adverseparty. davit, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. Allowanceof the SEC. 585. The allowance of the writ must be indorsed writ must be endorsed on it and thereon, signed by the judge of the court granting it, and the signed by the judge. writ must be served personally upon the defendant; if the defendant, duly served, neglect to return the same, he shall be proceeded against as for a contempt. Cause maybhe SEC. 586. On the return day of the alternative writ, or shown by answer, as in civil such further day as the court may allow, the party on whom actions. the writ shall have been served, may show cause by answer made in the same manner as an answer to a petition in a civil action. I f no answer be SEC. 587. If no answer be made, a peremptory mandamus mlade, a perempt,;ory ma~nda must be allowed against the defendant; if answer be made must be allowed. containing new matter, the same shall not, in any respect, conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objections to sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance. CH. 26.] CIVM PROCEDURE. 227 SEC. 588. No other pleading or written allegation is al- Pleadings and lowed than the writ and answer; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner as pleadings in a civil action; and the issues thereby joined mrust be tried, and the further proceedings thereon had, in the same manner as in a civil action. SEC. 589. If judgment be given for the plaintiff, he shall If judgment for plaintiffhe shall recover the damages which he shall have sustained, to be as- recover damages and a peremptocertained by the court or jury, or by referees, as in a civil ac- ~y. alamu tion, and costs; and a peremptory mandamus shall, also, be granted to him without delay. SEC. 590. A recovery of damages, by virtue of this chapter, Recovery of damages is a bar against a party who shall have made a return to a writ of to any other action. mandamus, is a bar to any other action against the same party for the making of such return. SEC. 591. Whenever a peremptory mandamus is directedwhen fines may be imposed. to any public officer, body or board, commanding the performance of any public duty, specially enjoined by law, if it appear to the court that such officer or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine, not exceeding five hundred dollars, upon every such officer or member of such body or board. Such fine, when collected, Fines paid into county treasury shall be paid into the treasury of the county where the duty abar toother penalties. ought to have been performed; and the payment thereof is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. TITLE XIX. GENERAL PROVISIONS APPLICABLE TO THE WHOLE CODE. CHAPTER 1. Process. SEC. 592. The style of all process shall be: " The Terri- Styleof procefss tory of Kansas,- county." It shall be under the seal signed by clerk. of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it issued. SEe. 593. An order for a provisional remedy or any otherLSee. c. 52-sT, 88, 89.] process, in an action wherein the sheriff is a party or is in- Whaenllshl be terested, shall be directed to the coroner. If both of these directed to coroofficers are interested, the process shall be directed to and ex-,, teo;tediroot ecuted by a person appointed by the court or judge. 228 CIVIL PROCEDURE. [C(u. 26, Court, for cause, SEC. 594. The court or judge, for good cause, may appoint may appoint pecial officer, a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may be appointed on the motion of the party obtaining the process or order, and the return must be verified by Return must be affidavit. He shall be entitled to the fees allowed to the sworn to. Entitled to fees sheriff for similar services. CHAPTEIR 2. Duties of Clerks. Cleerk shall is- SEC. 595. All writs and orders for provisional remedies, sue writs. and process of every kind, shall be issued by the clerks of the Precipe filed. several courts; before they, shall be issued, a precipe shall be filed with the clerk demanding the same. clerk to file pa- SEC. 596. It is the duty of the clerk of each of the courts, to file together, and carefully preserve in his office, all papers delivered to him for that purpose, in every action or special proceeding. Keep papers sep- SEC. 597. He shall keep the papers, in each case, separate, arate and label them. carefully enveloped in a wrapper, labeled with title of the cause. Papers to be en- SEC. 598. He shall indorse upon every paper filed with dorsed with the timeof filing him, the day of filing it; and upon every order for a provisand return. ional remedy, and upon every undertaking given under the same, the day of its return to his office. Shall enter SEC. 599. He shall, upon the return of every summons names of defendants summoned served, enter upon the docket the name of the defendant or npon docket. defendants summoned, and the day of the service upon each one. The entry shall be evidence of the service of the summons, in case of the loss thereof. Shall keep book SEC. 600. He shall keep the records and books and papers and records. appertaining to the court, and record its proceedings. provisions erk- SEC. 601. The provisions of article eight, of title nine, prescribing the duties of clerks, shall, as far as they are applicable, apply to the clerks of all courts of record. Powers and du- SEC. 602. The clerk of each of the courts shall exercise the ties. powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and Shall be under by the common law. In the performance of his duties, he direction of the Court. shall be under the direction of his court. CHAPTE R 3. Duties of Sheriff. lAseriff shall en- SEC. 603. The sheriff shall indorse upon every summons, dorse uponf papers time of re- order of arrest or for the delivery of property or of attachception. CH. 26.] CIVIL PROCEDURE. 229 ment or injunction, the day and hour it was received by him. SEC. 604. He shall execute every summons, order or other Exeute and make return as process, and return the same as required by law, and if he required by law. fails to do so, unless he make it appear, to the satisfaction of the court, that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, and shall be liable to the action May be fined for of any person aggrieved by such failure. neglect. SEC. 605. If the judge of a court having but one judge, or Sheriff power to adjourn court, if a quorum of the judges of any court having two or more, when. fail to attend at the time and place appointed for holding their respective courts, the sheriff shall have power to adjourn the Court from day to day, until the single judge attend, or a quorum is convened; but if the single judge be not present in his court, or a quorum of judges in their court, within two days after the first day of the term, then such court shall stand adjourned for the term. The sheriff shall exercise the powers Powers and duties. and duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law. CHAPTER 4. _ZXiseellaneous Provisions. SEC. 606. Any duty enjoined by this code upon a minis —DUties performterial officer, and any act permitted to be done by him, may be performed by his lawful deputy. SEC. 607. Whenever an oath is required by this code, the Affirmation. affirmation of a person, conscientiously scrupulous of taking an oath, shall have the same effect. SEC. 608. The time within which an act is to be done, as Fine-methodof herein provided, shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded. SEC. 609. That section three hundred and eighty-six shall Trial byJury if demanded. not be construed to impair the right of a party to a jury, if he appear at the trial, by himself or attorney, and demand the same. SEC. 610. The ministerial officer, whose duty it is to take Suretytojusify security in any undertaking provided for by this code or by other statutes, shall have the right to require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such 230 CIVIL PROCEDURE. [Oa. 26. an affidavit shall not exempt the officer from any liability to which he might otherwise be subject for taking insufficient Sureties must be security. residents of the Territory. SEC. 611. The surety in every undertaking provided for by this code or other statute, must be a resident of this Territory, and worth double the sum to be secured. Where there are two or more sureties in the same undertaking, they must, in Meeting of eS. the aggregate, have the qualifications prescribed in this section. preme court to revise rules. SEC. 612. The judges of the Supreme Court shall, during the month of the first June after this code shall take effect, and every two years thereafter, meet at the capitol of the Territory, and revise their general rules, and make such amendments thereto as may be required to carry into effect the provision of this code, and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the supreme court, the district courts, and the probate courts. Actions pending CHAPTER 5. Provisions respecting Actions. to proceed withoutregard to SEC. 613. The provisions of this code do not apply to prothis code. ceedings in actions or suits pending, when it takes effect. Code to apply They shall be conducted to final judgment or decree, in all after judgment. after j respects, as if it had not been adopted; but the provisions of this code shall apply after a judgment, order or decree, heretofore or hereafter rendered to the proceedings, to enforce, vacate, modify or reverse it, except as provided in section five hundred and forty-five. When this code CHAPTER 6. Provisions as to the Operations of the Code. operative. SEC. 614. Rights of civil action, given or secured by existing laws, shall be prosecuted in the manner provided for by this code, except as provided in section six hundred and fifteen. If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, can not be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to Actions which prevent a failure of justice. may not be prosecuted uder SEC. 615. Until the Legislature shall otherwise provide, this this code. [See ch. 107, ha- code shall not affect proceedings on habeas corpus, quo warlbeas corpus.] saere ch. o67, q ranto, or to assess damages for private property taken for public uses, nor proceedings under the statutes for the settlements CH. 26.] CIVIL PROCEDURE. 231 of estates of deceased persons, nor proceedings under statutes relating to dower, nor proceedings under statutes relating -to apprentices, arbitration, bastardy, insolvent debtors or any special statutary remedy, not heretofore obtained by action; but such proceedings may be prosecuted under the code whenever it is applicable. SEC. 616. Where, by statute, a civil action, legal or equita- When the code ble, is given, and the mode of proceeding therein is prescribed, ceedings under this code shall not affect the proceeding under such statute, until the Legislature shall otherwise provide; but the parties May proceed nder this act. may, if they see fit, proceed under this act, and in all such cases, as far as it may be consistent withthe statute giving such action and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates, by name or otherwise, the kind of action, such action shall be commenced and prosecuted in conformity to this code. Where the statute gives an action, but does not designate the Where the statutes designate kind of action, or prescribe the mode of proceeding therein, thoe lind of acsuch action shall be held to be the civil action of this code, and in conformity with this code. proceeded in accordingly. SEC. 617. Executors, administrators and guardians, who have Scnitie"soof adgiven bond in this Territory with sureties, according to law, guardians. are not required to give the undertaking mentioned in section five hundred and thirty-one. SEC. 618. If the district court affrm a judgment on petition Sei,tIl damages to plaintiff in in error, it shall also render judgment against the plaintiff in procr.eedings in error for five per cent. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable grounds for the proceedings in error. SEC. 619. A summons in error shall not be issued in any case Wheror suhmo in which there is, upon the minutes of the court or among the not be issued files of the case, a waiver of error by the party or his attorney, endeavoring to commence such proceedings, unless the court, in which the petition is to be filed, or a judge thereof, shall endorse on the same permission to issue such summons. SEC. 620. Cases pending in appellate courts, or writs of Case of arr~P error or otherwise, when this code takes effect, shall be con- proceed without regard to this ducted to final judgment, as if it had not been adopted, and the code. liens of judgments and decrees rendered when it takes effect, shall be preserved. They shall be enforced as provided in Row enforced. 232 CIVIL PROCEDURE. [Ca. 27. section six hundred and thirteen; but process already issued at such time, shall be carried on and executed. District court SEC. 621. The district court may appoint in each county such may appoint master commis- number of persons as shall be necessary, to be master commissioner, sioners, who shall hold their office for the term of three years, unless removed by the court for good cause. Must be sworn. SEC. 622. Before entering upon the duties of his office, a master commissioner must be sworn to perform them faithfully, Must give secur- and with one or more sureties, approved by the court, execute an undertaking to the Territory of Kansas, in such sum as the court shall direct, to the effect that he will pay over all moneys, and faithfully discharge the duties of his office. The underBond whenAled. taking shall be filed in the office of the county treasurer, and may be sued upon as provided in section five hundred and seventy-eight. Fees of master SEC. 623. A master commissioner shall be allowed such fees commissioner. as are allowed for similar services to other officers. SEC. 624. This act to take effect and be in force from and after the first day of June next. Approved February 11, 1859. CHAPTER XXVII. (Acts of 1859. Chapter XXVI.) AN ACT amendatory to an Act entitled "An Act to establish a Code of Civil Procedure," passed February, 1859. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: take effect when. SECTION 1. The act to which this is amendatory, shall take [See ch. 26, 13.] effect and be in force from and after the passage of this act. llactions onry SEC. 2. All actions founded on any promissory note, bill of notes, bills of exchange, writing obligatory, bond, contract, judgment, decree incurred without the T'rit-o-or other legal liability, made, executed, rendered, entered into ry, to commence within two or incurred beyond the limits of this Territory, shall be comyears. menced within two years next after the cause or right of such action shall have accrued, and not after. SEC. 3. This act shall take effect and be in force from and after its passage. Approved February 10, 1859. CH. 28.] CIVIL PROCEDURE. 233 CHAPTER XXVIII. (Acts of 1860. Chapter XXVI.) AN ACT to amend an Act entitled "An Act to establish a Code of Civil Procedure." Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That section sixty of an act entitled " An Act to Sec. 60 amendestablish a Code of Civil Procedure," approved February 11th, [Seecoh. 26-60; Title iv.] A. D. 1859, be amended so as to read as follows: " Sec. 60. Every other action must be brought in the county in which the defendants or some of the defendants reside." SEC. 2. That section one hundred and eighty-five of the same Sec. 185 amendact be amended so as to read as follows: " SEC. 185. An order [See ch. 26 —185; Title viii.] for the delivery of property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there is Order forthe defiled in his office an affidavit of the plaintiff, his agent or attor-e rtyto be made by the clerk of ney, showing: First, A description of the property claimed. thecourt, wvhe. Second, That the plaintiff is the owner of the property, or has special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. Third, That the property is wrongfully detained by the defendant. Fourth, That it was not taken in execution on any order or judgment of any court in this Territory, or for the payment of any tax, fine or amercement, or by virtue of any order of delivery issued under this chapter, or any other mesne or final process. Fifth, If the property has been sold on final process, that it was taken and sold in the absence of the plaintiff from the county in which such sale was made, and without his knowledge. Sixth, If taken in execution on any order or judgment against the plaintiff, that it is exempt by law from being so taken." SEC. 3. That section five hundred and two be amended so as Sec. 502 amended. to read as follows: "Sec. 502. Such judgment shall have a lien [See oh. 26 —502, title xiv.] on the real estate of the judgment debtor from the day of the Judgment shall be lien from llfiling of the transcript, in the same manner and to the same ingoftranscript. extent as if the judgment had been rendered in the district court." SEC. 4. That section five hundred and twenty-six is hereby soc. 526 ameedamended as follows: " Sec. 526. " The supreme court shall have edauthority to reverse, vacate or modify a judgment of a district [se ch. 21-526, 234 CIVIL PROCEDURE. LCH. 28. Supreme court court for errors appearing in the record; and, in the review of may reverse judgment. such judgment, to review any intermediate order involving the May reverse or- merits of the action or any portion thereof. The supreme court shall, also, have authority to reverse or modify any of the following orders of the district court: First, A final order, as defined in section No. 524. Second, An order that grants or refuses, continues, discharges or modifies a provisional remedy, or grants, refuses or dissolves an injunction or attachment; that grants or refuses a new trial, or that sustains or overrules a demurrer. Third, An order that involves the merits of an action or some part thereof. The proceeding to reverse, vacate or modify the orders mentioned in sub-divisions two and three shall be commenced within thirty days after notice of the same." Sec. 536 amend- SEC. 5. That section five hundred and thirty-six is hereby ed. [See cli. 26-536, amended so as to read as follows: "Sec. 536. No proceeding to reverse, vacate or modify any judgment or final order of a justice of the peace shall operate as a stay of execution, unless the clerk of the district court, in which such proceeding is comPlaintiff in er- menced, shall take a written undertaking to the defendant in ror shall execute an undertaking. error, executed on the part of the plaintiff in error, by one or more sureties, to be approved by the clerk, and to take effect: First, When the judgment directs the payment of money, that the plaintiff will pay all costs which have accrued or may accrue in such proceedings in error, together with the amount of any judgment that may be rendered against the plaintiff in error, either upon and after the affirmance thereof in the district court, or on the further trial of the case in such court, after the judgment of the court below shall have been set aside or reversed. Second. When the judgment directs the delivery of the possession of such property by the plaintiff in error, he will not commit or suffer to be committed any waste thereon; and, if the judgment be affirmed by the court above, or if judgment be rendered against the plaintiff upon the further trial of the case, after the judgment of the court below shall have been set aside or reversed, that he will pay the value of the use and occupation of the property, from the date of the undertaking until the delivery of the property, pursuant to the judgment, and all damages and costs that may be awarded against him." "Stoaekin trade" SEC. 6. Whenever the words "' stock in trade" occur in the means what. act aforesaid, they shall be construed to mean the same as the words "goods and chattels." SEc. 7. Sections sixty (60), one hundred and eighty-five CO. 29-30.] CIVIL PROCEDURE. 235 (185), and five hundred and two (502), and five hundred and Sec. 60, 185,502, twenty-six (526), and five hundred and thirty-six (536), of said pealed. 185, 502, 526 and act are hereby repealed. 536.] SEC. 8. This act shall take effect and be in force from and after its passage. Approved February 25, 1860. CHAPTER XXIX. (Acts of 1860. Chapter XXVII.) AN ACT to amend an Act entitled "An Act to establish a Code of Civil Procedure." Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That sections one hundred and sixteen, one hun- Se. 116, 117, 118 119, 120, 121, 122 dred and seventeen, one hundred and eighteen, one hundred and,and 123 repealed. nineteen, one hundred and twenty, one hundred and twenty-one, 127 112g, 120 one hundred and twenty-two and one hundred and twenty-three tle vii.] of the act to which this is an amendment be and the same are hereby repealed. SEC. 2. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. SEC. 3. This act to take effect from and after its passage. Approved February 27, 1860. CHAPTER XXX. (Acts of 1862.) AN ACT to amend an Act to Establish a Code of Civil Procedure. Approved February 11, 1859. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That section one hundred and sixteen of' said [See ch.2-6116, title vii.] act, which was repealed by an act of the Legislature of the sec. III revived. Territory of Kansas, entitled " An act to amend an act entitled must be verified by affidavit. an act to establish a code of civil procedure," and approved February 27, 1860, is hereby revived in words following, to wit: Sec. 116. Every pleading of fact, putting in issue the execution of any written instrument, must be verified by the affidavit of the party filing such pleading, his agent or 236 CIVIL PROCEDURE. [CH, 30. Proviso. attorney: Provided, that it shall be sufficient in the case of a guardian, administrator, or executor, if the affidavit state that the affiant believes the facts stated in the pleading to be true. When allega- SEC. 2. That section one hundred and thirty-seven of the tions taken to be as true. said act be and the same is hereby amended to read as follows: "Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall for the purposes of the action be taken as true; but the allegation of Newmatter in new matter in the reply shall be deemed controverted by the reply. adverse party, as upon direct denial or avoidance. Allegations of value, or of amount of damage, shall not be considered as true by failure to controvert them.", [See ch. 26-228, SEC. 3. That section two hundred and twenty-eight of the title viii. Judgment said act be and is hereby amended, so as to read as follows: against garnishee not to be Final judgment shall not be rendered against the garnishee rendered until judgment until the action against the defendant in attachment has been against defendant. determined; and if; in such action, judgment be rendered for the defendant in attachment, the garnishee shall be discharged, Garnisheedis- and recover costs. If the plaintiff shall recover against the charged, how. defendant in attachment, and the garnishee shall deliver up all the property, moneys, and credits of the defendant in his possession, and pay all the moneys from him due, as the court may order, the garnishee shall be discharged, and the costs of the proceedings against him shall be paid out of the property and moneys so surrendered, or as the court may think right and proper; and on final judgment against garnishee, execution may be issued as in other cases." [See ch. 26-324, SEC. 4. That section three hundred and twenty-four of the title x.1 Who shall not said act be and is hereby amended, so as to read as follows: testify. " The following persons shall be incompetent to testify: First, Persons who are of unsound mind at the time of their production for examination. Second, 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. Third, Husband and wife, for or against each other, or concerning any communication made by one to the other during the marriage, whether called as a witness while that relation existed or afterward: Provided, that when a suit Husband and is brought by or against a married woman, in her own right, wile. and her husband is joined with her as a mere nominal party, she may, in all such cases, be a witness upon the trial of such CH. 31.] CIVIL PROCEDURE. 237 suit: Provided, also, when a suit is brought by or against a married man, in his own right, and his wife is joined with him as a mere nominal party, he may, in all such cases, be la witness upon the trial of such suit: Provided, further, that when a husband and wife are joint parties in any suit, either as plaintiffs or defendants, and have a joint interest in such suit, either or both of them may be witnesses upon the trial thereof. Fourth, An attorney concerning any communication Attorneys. made to him by his client in that relation, or his advice thereon, without the client's consent. Fifth, A clergyman Clergymen. or priest concerning any confession made to him in his professional character, in the course of discipline enjoined by the church to which he belongs, without the consent of the person making the confession." SEC. 5. That original sections one hundred and thirtyseven, two hundred and twenty-eight, and three hundred and twenty-four of the said act are hereby repealed. SEC. 6. This act shall take effect and be in Iforce from and after its publication in the statute book. Approved March 3, 1862. CHAPTER XXXI. (Acts of 1862.) AN ACT to amend an act entitled "An Act to establish a Code of Civil Procedure. Be it enacted by the LegiSlature of the State of Kansas SECTION 1. That section one hundred and eighty-five of an [See ch. 26-185.] Order for the de... act to establish a code of civil procedure, approved February livery of property to be made by 11. 1859, be and the same is hereby amended, so as to read as the clerk, when. follows, to wit: "' An order for the delivery of property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing: Ahfdavto First, A description of the property claimed. Second, That the plaintiff is the owner of the property, or has special ownership or interest therein;: stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. Third, That; the property is wrongfully detained by the defendant.:Fourth, That it was not taken in 16 238 CRIMINAL PROCEDURE. [CH. 32. execution, on any order on judgment of any court in this state against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of any order of delivery issued under this chapter, or any other mesne or final process issued against said plaintiff: or, Fifth, If taken in execution, or on any order or judgment against the plaintiff, that it is exempt by law fiom being so taken." [See ch. 26-276, SEc. 2. That section two hundred and seventy-six of an title ix.] act to establish a code of civil procedure, o.pproved February 11, 1859, shall be and is hereby amended, so as to read as follows: "'The general mode of summoning, impanneling, iJulytl. and swearing the jury, is-such as is, or may be, provided by [See Jurors, ch. 118.] law; and each party shall be entitled to three peremptory challenges. [See ch. 26-276. SEC. 3. That original sections (276) two hundred and title ix., and 185, title iii.] seventy-six, and (185) one hundred and eighty-five of the said act be and the same are hereby repealed. SEC. 4. This act to take effect from and after its publication once in some newspaper published at the State capital. Approved February 5, 1862. CHAPTER XXXII. (Aets of 1859, Chapter XXVII.) AN ACT to establish a Code of Criminal Procedure. OF PROCEEDINGS TO PREVENT THE COIMMISSION OF OFFENCES. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. The following magistrates shall have power to Officers authori- cause to be kept all laws made for the preservation of the pubzed to keep the i'ece- lic peace, and, in the execution of that power, to require persons to give security to keep the peace, in the manner provided in' this article: The judges of the supreme court, throughout the Territory; justices of the peace, in their respective counties; the mayors and chief officers of incorporated cities and towns, within the limits of such corporation. SEC. 2. Whenever complaint shall be made in writing, and Duty of magios upon oath, to any such magistrate, that any person has threattrate on complaint made that ened or is about to commit any offence against the person or aproperty person hast shall be the duty of such magistrate to property of another, it shall be the duty of such magistrate to Ci. 32.] CRIMINAL PROCEDURE. 239 examine such complaint, [complainant] and any witnesses who throeatecd o is may be produced, on oath; to reduce such examination to mit n o writing, -and cause the same to be subscribed by the parties so examined. SEc. 3. If it appear, upon such examination, that there is?agistrate to, issue a warrant, reason to fear the commission of any such offence by the person when. complained of, it shall be the duty of the magistrate to issue a warrant, under his hand, with or without seal, reciting the complaint,,and commanding the officer, to whom it is directed, forthwith to apprehend the person so complained of, and bring him before such magistrate. SEC. 4. Upon such person being brought before such magis- Duty of nagpis trate, it shall be the duty of the magistrate to examine all wit- son complained nesses which either party may require to be examined, and iffore him. it shall appear, to the satisfaction of such magistrate, that there is reason to fear the commission of such offence, he shall require the party complained of to enter into a recognizance in such May cause him to enter into resum, not exceeding five thousand dollars, as such magistrate cognizanceto keep the peace, shall direct, with one or more sufficient securities, to appear when. before the district court on the first day of the next term, and not depart the same without leave; and, in the meanwhile, to keep the peace toward the people of this Territory, and particularly toward the complainant. SEC.- 5. If such recognizance be given, the party complainedIf he give recogof shall be discharged; but if he fail or refuse to find surety, be discharged; it shall be the duty of the magistrate to commit him to prison committed. until he find the same, specifying in the warrant the cause of commitment and the sum in which security was required. SEC. 6. Any person committed for not finding surety of the If committed may be dischargpeace, as above provided, may be discharged by any magistrate ed, how. authorized to bind to the peace, within the county, upon giving such security as was originally required of such person. SEC. 7. Every recognizance to keep the peace, taken by any Recognizance to be transmitted to magistrate pursuant to the foregoing provisions, or pursuant to clerk of district court. any other statute, shall be. transmitted by such magistrate to the clerk of the district court of the county, on or before the first day of the term of such court next to be holden after taking the same. SEC. 8. Every person who, in the presence of any magistrate Cases in which security may be above specified, or of any court of record, shall make any required without complaint affray, or threaten to kill or beat another, or to commit any made offence against his person or property, and all persons who, in 240 CRIMINAL PROCEDUR4o [CH. 32. the presence of such court or magistrate, shalI contend with, hot and angry words, may be ordered by such magistrate or court, without any other proof, to give such security as above specified, and in case of failure or refusal so to do, he may be committed in like manner as above provided. Persons repog- SEC, 9. Every person who shall have entered into a recogninized to appear at next term of thedstricrt couft zance to keep the peace, shall appear before the district court the district court zce to cogfofeitchisce-. of the county at the next term, and if he fail to appear, the court shall forfeit his recognizance, and order it to be prosecuted, unless reasonable excuse for the default be, shown. Complaiit apearnt SEc. 10. When any person shall have been bound to keep Partyrecognized the peace on the complaint of another, and the complainant to be discharged. shall not appear, the party recognized shall be discharged, unless good cause to the contrary be shown. Prheocapeings e SEc. 11. Upon the appearance of the respective parties, and of the parties. in cases where there is no complaint, the court shall examine thee evidence, and may either discharge the recognizance taken, or require a new recognizance, as the circumstances of the case -may require, for such time as shall appear necessary, not exceeding one year, and in such cases, costs shall be adjudged according to the discretion of the; court. Recognizance SEC. 12. No recognizance to keep the peace shall be deemed not deemed broken, exceptasin to be broken, except in the case provided for in the ninth secninth section provided. tion of this chapter, unless the principal in such recognizance be convicted of some offence, amounting, in judgment of law, to a breach of such recognizance, Court shall or- SEC. 13. Whenever evidence of such conviction shall be proder recognizance tobe pros- duced to the court in which the recognizance is filed or taken, ecuted, when, it shall be the duty of the court to order such recognizance to be prosecuted, and the attorney prosecuting for the county shall proceed thereon accordingly. Assignment of SEC. 14. In the action on such recognizance, the offence breaches and evidence in action. stated in the record of conviction may be assigned as a breach, and such record shall be conclusive evidence of the matters therein stated. Of the Local Jurisdiction of Public Offences. Offences to be SEC. 15. Offences committed against the laws of this Terripunished in the county where tory, shall be punished in the county in which the offence is committed. committed, except as may be otherwise provided: by law. Out of the Toer SEc. 16. Every person being without the Territory, commitritory. ting or consummating. an offense, by an agent or means within BH. 32.] CRIIMINAL PROCEDURE. 241 the Territory, is liable to be punished by the laws thereof, in the same manner as if he were present, and had commenced and consummated the offence within the Territory. SEC. 17. Any person leaving the Territory to fight a duel, Dueling-inand going out of thb or to be concerned as a second therein, or in any other capacity Territory to.fight. out of the Territory, is liable to be punished in the county of his residence in the Territory, in the same manner as if the duel had been contemplated and fought, and the results thereof had terminated therein. SEc. 18. When a public offence has been committed, partly Where offenceis committed'in in one county and partly in another, or the act or effects con- more than one county, jurisdicstituting or requisite to the consummation of the offence occur tion in either. in two or more counties, the jurisdiction is in either county. SEC. 1'9. When an offence is committed in this Territory, or on Offences committed on vesthe boundary thereof, on board a boat or vessel navigating asels andboats. river, or lying therein, the jurisdiction is in any county within or opposite to which the offence is committed. SEC. 20. That the jurisdiction of the following cases is in Of cases where J* ~. * 1,,-. s. ~~~~~jurisdiction is in any county in which the offence was committed, or into or out any county. of which the person upon whom the offence was committed, has been brought: First, for forcibly or fraudulently taking, inveigling, or kidnapping any negro or mulatto, to be sent out of the Territory, to be sold as a slave or held to service: Second, -for taking or enticing away any female for the purpose of prostitution- Third, for taking, decoying or enticing away a child, under the age of fifteen years, with intent to detain and conceal it from its parents, guardian or other person, having lawful charge of the child. SEC. 21. When property taken in one county by burglary, Jurisdiction where property robbery, larceny or embezzlement, has been brought into an- stolen from one county and carother county, the jurisdiction is in either county. ried to another. SEc. 22.- An accessory, before or after the fact, may be pun- In relation to ished: in the county where he committed the offence, or in the accssories county where the principal offence was committed. SEC, 23. That if any mortal wound is given, or poison ad- In case of wound ministered in one county, and death by means thereof ensues county and death ensue in anothin another, the jurisdiction is in either county. Er. Of Limitation of Criminal Actions. SEc. 24. Prosecutions for murder and man stealing, may be Prosecutions commenced at commenced at any time after the commission of the offence. any time in certain cases. S H. 25 Prosecutions for an offence must be commenced 242 CRIMINAL PROCEDURE, [CH. 32t Where th of-t within sixty days after its commission, where the penalty canexceed a fine of not exceed a fine of three dollars. three dollars. Prosecutions SEC. 26. In all other cases, prosecution for an offence must must be comymenced in tworn be commenced within two years after its commission. sient or SEC. 27. If any person who has committed an offence is abWhen absent or concealed. sent from the Territory, or so conceals himself that process cannot be served upon him, or coniceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation. Of the Arrest and Examination of Offenders. Persons to issue SEc. 28. For the apprehension of persons charged with ofprocess of arrest. fences, the magistrates named in the first section of this chapter are authorized to issue process to carry into effect the provisions of this chapter. When compIaint SEC, 29. Upon complaint, made to any such magistrate, that is made to a magistrate, his a criminal offence has been committed, he shall examine, on oath, the complainant, and any witness produced by him, and shall reduce the complaint to writing, and shall cause the same to be subscribed by the complainant; and if it shall appear that any such offence has been committed, the court or justice shall issue a warrant, reciting the substance of the accusation, and requiring the officer to whom it shall be directed, forthwith to take the person accused and bring him before the said court or justice, or before some other court or magistrate of the county, to be dealt with according to law, and in the same warrant may require the officer to summon such witnesses as shall be therein named, to appear and give evidence on the examination. Magistrate to SEC. 30. Upon complaint, made to any magistrate of any issue warrant forcriminalwho county in this Territory, that a criminal offence has been comhas fled from his county. mitted, and that the offender has fled from the county in which the offence was committed, such magistrate shall issue a warrant, directed to an officer of his own county in which the offence was committed, requiring the offender to be apprehended and taken before some magistrate of the county where the offence was committed, to be dealt with according to law. When offezder SEC. 31. If any person, against whom a warrant may be escapes from the county. issued for an alleged offence committed in any county, shall, either before or after the issuing of such warrant, escape froml or be out of the county, the sheriff or other officer to whom Duty and power suCh warrant may be directed, may pursue and apprehend the of sheriff. party charged in any county in this Territory, and for that CH. 32.] CRIMINAL PROCEDURE. 24S purpose may command aid and exercise the same authority as in his own county. SEC. 32. In all cases where the offence charged in the war- Mdagistratesmay rant is not punishable by death or imprisonment in the Terri when the offence is not pnisha - torial prison, if the person arrested requests that he may beib'pbr sdet in, brought before a magistrate of the county in which the arrestTerritorial piswas made, for the purpose of entering into a recognizance, without a trial or examination, the officer making the arrest shall carry him before a magistrate of that county, who may take from the person arrested a recognizance, with sufficient sureties for his appearance at the court having cognizance of the offence, and next to be holden in the county where it shall be alleged to have been committed, and the party arrested shall thereupon be liberated. SEC. 33. The magistrate who shall so let the person arrested Magistrate shall to bail, shall certify that fact upon the warrant, and shall de- warrant. liver the same, with the recognizance by him taken, to the person who made the arrest, who shall cause the same to be delivered, without unnecessary delay, to the clerk of the court before which the accused was recognized to appear; and, on Reconizance to be delivered to application of the complainant, the magistrate who issued the clerk of the court. warrant, or the prosecuting attorney, shall cause such witnesses to be summoned to the same court as may be deemed necessary. SEC. 34. If the magistrate in the county where the arrest When prieoner was made, shall refuse to bail the person so arrested and brought before him, or if no sufficient bail shall be offered, the person having him in charge shall take him before the magistrate who issued the warrant, or, in his absence, before some other magis- Shall be talken before a magistrate of the county in which the warrant was issued; to be pro- trate. ceeded with according to law. SEC. 35. When the offence charged in any warrant is pun- when offence - 9~~~~~~ ~~charged is punishable with death or by imprisonment in the Territorial shble' by eathl ment in Territoprison, the officer making the arrest in some other county,rnial prison. shall convey the prisoner to the county where the warrant issued, and he shall be proceeded with in the manner directed by law. SEC. 36. Every person arrested by warrant for any offence, Persons arrested must be brought where no other provision is made for his examination thereon, before magisshall be brought before some magistrate of the same county, Tavrrant, &c. and the warrant, with the proper return thereon, signed by rant. the person who made the arrest, shall be delivered to such magistrate. 244 CRIMINAL PROCEDURE. [CH. 32. Magistrate mniay SEC. 37. Any magistrate may adjourn an examination or adjourn examin- Aa ation. trial pending before himself, from time to time, as occasion shall require, not exceeding ten days at one time, without the consent of the defendant or person charged, and to the same or a different place in the counity, as he shall think proper; and, in such case, if the party is charged with a capital offence, May recognize he shall be committed in the mean time; otherwise, he may persons to ap-s m a det pear for further be recognized in a suns and with sureties to the satisfaction of examination. the magistrate, for his appearance for such further examination; and for want of such recognizance, he shall be committed to prison. When person SEC. 38. If the person so recognized shall not appear berecognized fails to appear. fore the magistrate at the time appointed for such further examination, according to the condition of such recognizance, the magistrate shall record the default, and shall certify the recognizance, with the record of such default, to the district court, and like proceedings shall be had thereon as upon the breach of the condition of a recognizance for appearance before that court. When such per- SEC 39. When such person shall fail to recognize, he shall son shall fail to recognize. Pro-be committed to prison by an order under the hand of the teedings. magistrate, stating concisely that he is committed for further examination on a future day, to be named in the order; and, on the day appointed, he may be brought before the magistrate by his verbal order to the same officer by whom he was committed, or by an order in writing to a different person. Witnesses for SEC. 40. The magistrate before whom any person is brought, the prosecution. upon a charge of having committed an offence, shall, as soon as may be, examine the complainant and the witnesses to support the prosecution, on oath, in the presence of the party charged, in relation to any matters connected with such charge, which may be deemed pertinent. Witnesses for SEC. 41. After the testimony to support the prosecution, the the prisoner. witnesses for the prisoner, if he have any, shall be sworn and examined, and he may be assisted by counsel in such examination, and also in the cross-examination of the witnesses in support of the prosecution. Magistrate may SEC. 42. The magistrate, while examining any witness, may exclude witnesses from thoe e- at his discretion, exclude from the place of examination all the amination of witnesses. other witnesses; he may also, if requested or if he see cause, direct the witnesses for or against the prisoner to be kept separate, so that they can not converse with each other, until they shall have been examined. CH. 32.] CRIMINAL PROCEDURE. 245 SEC. 43, The testimony of the witnesses examined shall Testimony shall be reduced to be reduced to writing by the magistrate, or under his direc- w'riting and signed, if requirtion, when he shall think it necessary, and shall be signed by ed. the witnesses, if required by the magistrate. SEC. 44. If it shall appear to the magistrate, upon the whole If no offence is examination, that no offence has been committed, or that there is not probable cause for charging the prisoner with the Discharge of offence, he shall be discharged. SEC. 45. Persons charged with an offence punishable with In referenceto bail. death, shall not be admitted to bail, when the proof is evident or the presumption great; but, for all other offences, bail may be taken in such sum as, in the opinion of the magistrate, will secure the appearance of the person charged with the offence, at the court where such person is to be tried. SEC. 46. If it shall appear that an offence has been commit- Bail received ted, and that there is probable cause to believe the prisonerinbailabl'cases guilty, and if the offence be bailable by the magistrate, and the prisoner offer sufficient bail, if shall be taken and the prisoner discharged; but if no sufficient bail be offered, or the offence be not bailable by the magistrate, the prisoner shall be committed for trial. SEC. 47. When the prisoner is admitted to bail, or commit- Magistrate may bind witnesses ted by the magistrate, he shall also bind, by recognizance, brecognizance. such witnesses against the prisoner as he shall deem material, to appear and testify at the next term of the court having cognizance of the offence, and in which the prisoner shall be held to answer. SEC. 48. If the magistrate shall be satisfied that there is May order witnesses to give good cause to believe that any such witness will not perform recognizance the condition of his recognizance unless other security be given, such magistrate may order the witness to enter into a recognizance, with such sureties as may be deemed necessary for his appearance at court. SEC. 49. When any married woman or minor is a material wcmognizance of witness, any other person may be allowed to recognize for the ors as witnessappearance of such witness, or the magistrate may, in his discretion, take the recognizance of such married woman or minor, in a sum not exceeding fifty dollars, which shall be valid and binding in law, notwithstanding the disability of coverture or minority. SEC. 50. All witnesses required to recognize, either with or witnesses may be committed to without sureties, shall, if they refuse, be committed to prison prison. 246 CRIMINAL PROCEDURE. [CO. 32. by the magistrate, there to remain until they comply with such order, or be otherwise discharged according to law. Judge of court SEC. 51, Any judge of a court of record, on application of of record mnay adit to bail. any prisoner committed for a bailable offence, may inquire into the case and admit such prisoner to bail; and any person committed for not finding sufficient sureties to recognize for him, may be admitted to bail by either of said judges, or by the committing magistrate. magistrate SEC. 52. Any magistrate to whom complaint is made or bemay associate other magis- fore whom any prisoner is brought, may associate with himtrates with himself. self one or more magistrates of the same county, and they No fees allowed. may together execute the powers and duties before mentioned; but no fees shall be taxed for such associates. exainations SEC. 53. All examinations and recognizances, taken by any and recognizances must be cer- magistrate, in pursuance of the provisions of this chapteri tited and return. ped to Whom. shall be certified and returned by him to the county attorney or the clerk of the court before which the party charged is bound to appear, on or before the first day of the sitting Penalty for neg- thereof; and if such magistrate shall neglect or refuse to relect- - turn the same, he may be compelled forthwith, by rule of court, and in case of disobedience, may be proceeded against, by attachment, as for contempt. wProceeding SEC. 54. When any person under recognizance, in any crimwhenl recogni7anceisforfeitedinal prosecution, either to appear and answer or to prosecute an appeal, or to testify in any court, shall fail to perform the condition of such recognizance, his default shall be recorded and process shall be issued against the persons bound by the recognizance, or such of them as the prosecuting officer shall direct. A surety may be SEC. 55. Any surety in such recognizance may, by leave of discharged, how.' the court, after default, and either before or after the process has been issued against him, pay to the county treasurer or to the clerk of the court the amount for which he was bound as surety, with such costs as the court shall direct, and be thereupon forever discharged. bNo actionch SEC. 56. No such action, brought on a recognizance, shall cbasre hanllbe be barred or defeated, nor shall judgment thereon be arrested barred or defeatid for daenyfetos by reason of any neglect or omission to note or record tile default of any principal or surety, at the term when such default shall happen, nor by reason of anly such defect in the form of the recognizance, if it sufficiently appear from the tenor thereof at what court the party or witness was bound to appear, and CH. 32.] CRIMINAL PROCEDURE. 247 that the court or magistrate before whom it was taken, was authorized by law to require and take such recognizance. Of Grand Juries and their Proceedings. SEC. 57. There shall not be more than eighteen grand jurors How many compose a grand jusummoned, nor less than fifteen persons sworn, on any grand ry. jury; and, from the persons summoned to serve as grand jurors, and appearing, the court shall appoint a foreman, and Foreiannappointed. may also appoint a foreman in every case where any person appointed shall be discharged or excused, before the grand jury shall be dismissed. SEC. 58. An oath or affirmation shall be administered to the Oaths to be administered to foreman of the grand jury in substance as follows: " You, as foreman of grand jury. foreman of the grand jury, shall diligently inquire, and true presentment make of all public offences against the laws of this Territory, committed or triable within this county, of which you have or can obtain legal evidence; you shall present no person through malice, hatred or ill-will, nor leave any unpresented through fear, favor or affection, or for any reward or the promise or hope thereof, but in all your presentments you shall present the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding." SEC. 59. The following oath or affirmation must thereupon Oath to the grand jury. be administered to the other grand jurors present: "The same oath, or affirmation, which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part." SEC. 60. Any person held to answer to a criminal charge When,by whom and for what may object to the competency of any one summoned to serve reasons a grand juror may be as a grand juror, before he is sworn, on the ground that he is chllenged. the prosecutor or complainant, upon any charge against such person, or that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such; and if such objection be established, the person so challenged shall be set aside. SEC. 61. No challenge to the array of grand jurors or to any No challenge allowed except as person summoned as a grand juror, shall be allowed in any above provided. other cases than such as are specified in, the last section. SEC. 62. The foreman of every grand jury, from the time ofoiremeaudhis appointment to his discharge, shall be authorized to ad-,nister oaths, minister any oath, declaration or affirmation, in the manner 248 CRIMINAL PROCEDURB. [Ca. 32. prescribed by law, to any witness who shall appear before such grand jury, for the purpose of giving evidence in any imatter cognizable by them. Clerk, how r- SEC. 63. Every grand jury may appoint one of their numpointed. ber to be a clerk thereof, to preserve minutes of their proceedHiRs duties. ings, and of the evidence given before them, which minutes shall be given to the attorney prosecuting in the county, when so directed by the grand jury. Prosecntingat. SEC. 64. Whenever required by any grand jury, it shall be torney to attend grand juries. the duty of the attorney prosecuting in the county, to attend them for the purpose of examining witnesses in their presence, or giving them advice upoli any legal matter. May attend of SEC. 65. Such attorney shall be allowed, at all times, to aphis own request. pear before the grand jury, on his request, for the purpose of giving information relative to any matter cognizable by them, (and may be permitted to interrogate witnesses before them,) when they or he shall deem it necessary; but no such attorney Deliberations of or any other officer or person, except the grand jrors, shall jury, private. be permitted to be present during the expression of their opinions, or the giving their votes on any matter before them. Clerk to eisse SEC. 66. Whenever thereto required by any grand jury or subpoenas when required by fore- the foreman thereof, or by the prosecuting attorney, the clerk man or proseecuting attorney. of the court in which such jury is impanneled, shall issue subpcenas and other process to bring witnesses to testify before such grand jury. Court lay issue SEC. 67. If any witness, duly summoned to appear and tescompulsory process against wit- tify before a grand jury, shall fail or refuse to obey, the court ness, when. shall cause compulsory process to be issued to enforce his attendance, and may punish the delinquent in the same manner Proceedings. and upon like proceedings, as provided by law for disobedience of a subpCena issued out of such court in other cases. Proceedings if SEC. 68. If any witness, appearing before a grand jury, witness refuse to testify before a shall refuse to testify or to answer any interrogatories in the grand jury. course of his examination, the fact shall be communicated to the court in writing, on which the question refused to be answered shall be stated, and the court shall thereupon determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision. Proceedings if SEC. 69. If the court determine that the witness is bound to court determine that witness is answer, and he persist in his refusal to testify he shall be bound to answer. brought before the court, who shall proceed therein in the same manner as if the witness had been interrogated and refused to answer in open court. O]H. 32.] CRIMINAL PROCEDURE. 249 SEC. 70.- If any such witness shall be committed for a con- witesforne- s tempt, on account of his refusal to testify, and shall persist in dl schhallgt be such refusal until the grand jury is dismissed, or until the ex- lesogeenleitnto piration of his imprisonment, he shall not be discharged until he enter into a recognizance, with sufficient security, for his appearance at the next term of the court, and not to depart such court without leave. SEC. 71. If any offence be committed or discovered duringCourt may su1m-'y offence be mon a second the sitting of any court, after the grand jury, attending sulchrhand jury, court, shall be discharged, such court may, in its discretion, by an order to be entered on its minutes, direct the sheriff to summon another grand jury. SEC. 72. The sheriff shall, accordingly, forthwith summon Proceedings in such grand jury, from the inhabitants of the county qualified to serve as grand jurors, who shall be returned and sworn, and shall proceed in the same manner, in all respects, as provided by law in respect to other grand juries. SEC. 73. Members of the grand jury may be required by any when grand jurors may disclose court to testify whether the testimony of a witness examined testimony given - - before them. before such grand jury is consistent with or different from the evidence given by such witness before such court, and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for such offence. SE. 74. No member of a grand jury shall be obliged or al- No grand juror to disclose votes lowed to testify or declare in what manner he or any other oropinions of his own or felmember of the grand jury voted on any question before them, lows or what opinions were expressed by any'juror in relation to any such question. SEC. 75. No grand juror shall disclose any evidence given Duty in relation to secresy. before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for a felony, not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the provisions of this section, shall be deemed guilty of a misdemeanor. SEC. 76. In charging grand juries, the court shall apprise Duty of courtin charging grand them of the provisions of the three last sections, in relation tOjurY. disclosures, and: in what cases and under what circumstances any disclosures may or may not be made. SEC. 77. No indictment can be found without the concur 250 CRIMINAL PROCEDURE. [CH. 32. Indictment on0lYrence of at least twelve grand jurors. When so found, and rence of twelve, not otherwise, the foreman of the grand jury shall indorse it &c. thus: "A true bill," A. B., Foreman. Hlow indorsed SEC. 78. Where there is not a concurrence of twelve grand when bill is ignored. jurors in finding an indictment, the foreman shall certify, under his hand, that such indictment is " Not a true bill." How teronute, c SEC. 79. Indictments found by a grand jury, shall be presented by their foreman, in their presence, to the court, and shall be filed, and reinairn as records of such court. I hen a prosecut SEC. 80. No indictment for any trespass against the person 1oris necessary. or property of another, not amounting to felony, or for the first offence of petit larceny, shall be preferred unless the name of a prosecutor is indorsed thereon, except where the same is preferred upon the information or knowledge of two or more of the grand jury, or on the information of some public officer in the necessary discharge of his duty, in which case a statement of the fact shall be made at the end of the indictment, and signed by the foreman of the grand jury. His name shall SEC. 81. The name of the prosecutor shall be indorsed as be indorsed on indictment. such by himself, or, where his name has been certified as prosecutor, with the examination as provided by law, the indorsement may be made by the prosecuting attorney; but no indictment shall be quashed for the want of such indorsement, if the same shall be made before the motion to quash is disposed of. When adjudged SEC. 82. If any indictment, so indorsed, shall be returned to pay the costs. by the grand jury, " Not a true bill," the prosecutor shall be adjudged to pay the costs. Grand jurynot SEC. 83. It shall not be necessary for any grand jury to to present indictment, when. present any presentment prior to the presentation of the indictment. Indictments, SEC. 84. Each indictnment must be signed by the prosecuting how signed. attorney, and when the grand jury return any indictment into court, the judge must examine it, and if the foreman has neglected to indorse it'"A true bill," with his name signed thereDuty of court to, or if the prosecuting attorney has neglected to sign his when not signed name, the court must cause the foreman to indorse, or the prosecuting attorney to sign it, as the case may require, in the presence of the jury. Names of wit- SEC. 85. Where an indictment is presented by the grand desses indorsed. on indictment. jury) the names of all the material witnesses must be indorsed CH. 32.] CRIMINAL PROCEDURE. 251 upon the indictment; but other witnesses may afterwards be subpoenaed by the Territory; but unless the names of such witnesses be indorsed on the indictment, no continuance shall be granted to the Territory on account of the absence of any witness whose name is not thus indorsed. Of Indictments and Process -thereon, SEc. 86. All criminal prosecutions must be in the name of Of pleading. the Territory of Kansas. SEC. 87. The forms of pleading in criminal actions in the district court, and the rules by which the sufficiency of pleading is to be determined, are those herein described. SEc. 88. The first pleading on the part of the Territory, is First pleading. an indictment. SEC. 89. The indictment must contain: First, The title of What an aftidavit or indictthe action specifying the name of the court to which the in- ment must conrain. dictment or affidavit is presented, and the names of the parties: Second, A statement of the facts constituting the offence, in plain and concise language, without repetition. SEC 90. The indictment must be direct and certain, as it re- Must be certain as regards the gards the party and the offence charged. party and the offence. SEC. 91. The precise time of the commission of an offence need Time of commisnot be stated in the indictment; but it is sufficient if shown to ot necessary in have been within the statute of limitations, except where the indictment. time is an indispensable ingredient in the offence. SEC. 92. In an indictment for an offence committed in rela- Indictments in relation to oftion to property, it is sufficient to state the name of any one fences against property, nanr e or names of several or joint owners. of owner to be stated. SEC. 93. The words used in an indictment must be construed Construction of in their usual acceptation in common language, except words erin indictand phrases defined by law, which are to be construed according to their legal meaning. SEC. 94. Words used in the statutes to define a public offence, Same. need not be strictly pursued, but other words, conveying the same meaning, may be used. SEC. 95. The indictment is sufficient, if it can be understood Manner of firidtherefrom: First, that the indictment was found by the grand jury of the county in which the court is held: Second, That the defendant is named or described in an indictment, as a person whose name is unknown to the grand jurors, or in an information to the prosecuting attorney:' Third, that the offence was committed within the jurisdiction of the court, or is triable 252 CRIMINAL PROCEDURE. [Cu. 32. therein: Fourth, That the offence charged is clearly set forth, in plain and concise language, without repetition: and, Fifth, that the offence charged is stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case. Defects for SEEC. 96. No indictment may be quashed or set aside for any which indictments shall not of the following defects: First, For a mistake in the name of be quashed or set aside, the court or county in the title thereof: Second, For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or information: Third, that dates and numbers are represented by figures: Fourth, For an omission of any of the following allegations, viz: " With force and arms," I contrary to the form of the statute," or, "against the peace and dignity of the Territory of Kansas:" Fifth, For an omission to allege that the grand jurors were impannelled, sworn or charged: Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged: Nor, Seventh, For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Presumptions of SEC. 97. Neither presumptions of law nor matters of which law, &c., not necessary in in- judicial notice is taken, need be stated in an indictment. dietments. Pleading a judg- SEC. 98. In pleading a judgment or other determination of ment. a court or officer of special jurisdiction, it is sufficient to allege generally that the judgment or determination was duly made or had before such court or officer, but the facts constituting the jurisdiction must be established on trial. Pleading a puteri SEC. 99. In pleading a private statute or a right derived therefrom, it is sufficient to refer to the statute by its title and the day of its approval, and the court must take notice thereof. One or more de- SEC. 100. Upon an indictment against several defendants, fendants. any one or more may be convicted or acquitted. Persons who aid SEC. 101. Any person who counsels, aids or abets in the and abet may be trisd and convic- commission of any offence, may be charged, tried and convicted ted same as principal. in the same manner as if he were a principal. Accessory after SEC. 102. An accessory after the fact to the commission of the fact. a felony, may be indicted, tried and punished, though the principal be neither indicted or tried. Indictments, SEC. 103. Every indictment must be recorded by the clerk how and when recorded. during the term at which the same is found, in a book to be kept for that purpose; the judge must compare the record with CH. 32".] CRIMINAL PROCEDUtRE. 253 the original indictments, and certify the correctness thereof. In case the original indictment is lost or destroyed, the defendant may be tried upon a copy taken from the record and certified by the clerk, without any delay from that cause. SEC. 104. In case of the loss or destruction of an indictment, In caseofloss or destruction of the prosecuting attorney may file, in court, another indictment, an indictment. and the prosecution shall proceed, and the trial be had, without any delay from that cause. SEC. 105. Indictments against persons not in custody, orlndictments and who have not given bail, and the records of such indictmentswhom to be inspected. are in the custody of the clerk, and cannot be inspected by any person except the court, the clerk and his deputy, and prosecuting attorney, until after the arrest of the defendant. SEC. 106. No grand jury, prosecuting attorney, clerk, judge Perons not per-'- reitted to disor other officer, can disclose the fact that an indictment is found, close the fact that an indict. until the defendant has been arrested, except any disclosurementis foun that may be necessarily incident to the issue and service of a warrant to arrest the defendant. A violation of this and the next preceding section is punishable as a misdemeanor. SEc. 107. Upon an indictment for an offence consisting of Jurymay find defendant guilty different degrees, the jury may find the defendant not guilty ofofalany degree inferior to the de. the degree charged in the indictment, and guilty of any degree goee found in the indictment. inferior thereto, or of an attempt to commit the offence. SEc. 108. In all other cases the defendant may be found guilty of an offense, the commission of which is necessarily included in that with which he is charged in the indictment. SEC. 109. Counts for murder in the first and second degree, Murder in first and second de. and for manslaughter, may be joined in the same indictment, greeand man. slaughter may and, on the trial, the defendant may be convicted of either of- bejoined together. fencer SEc. 110. When any offence shall be committed upon, or in Allegation of property in in. relation to, any personal property belonging to several part- dctment in case ners or owners, the indictment for such offence shall be deemed ers, &c. sufficient if it allege such property to belong to any one or more of such partners or owners, without naming all of them. SEC. 111. An indi-ctment against any accessory to any fel- Initmients ony may be found in any county where the offence of such ac- ries, in what counties may be, cessory shall have been committed, notwithstanding the principal had. offence may have been committed in another county, and the like proceedings shall be had therein, in all respects, as if the principal offence had been committed in the same county. SEC. 112. When an indictment is found, the court may direct 17 '254 CRIMINAL PROCEDURE. [CH. 32. Duties of clerk — the clerk to issue a warrants returnable forthwith. If no order must issue warrant on indict- is made, the clerk must issue a warrant upon all indictments ment. Summonsofwit- within twenty days after the close of the term. The clerk at the same time must issue a summons for the witnesses. Warrants, to SEC. 113. The warrant issues to the sheriff of the county whom issued. where the indictment is filed, unless the prosecuting attorney directs the warrant to be issued to some other county. Warrants may issue to different counties at the same time. The Duty of sheriff. sheriff must execute the warrant, and serve the summons immediately upon being delivered to him. Bailableoffences SEC. 114. All offences are bailable by sufficient sureties, except murder, when the proof is evident or the presumption great. Amount of bail, SEC. 115. The court, at each term, must order the amount by whom fixed. in which persons charged by indictment are to be held to bail, and the clerk must indorse the amount on the warrant. If no order fixing the amount of bail has been made, the sheriff may present the warrant to the judge of the court, and such judge must thereupon indorse the amount of bail to be required; or, if there is no such judge in the county, the clerk may fix the amount of bail. SEC. 116. When writs of attachment are returnable after the close of the term, the court must direct the amount of bail to be required of the defendant. SEC. 117. Arrest is the taking of a person into custody, that he may be held to answer for a public offence. Arrest, how SEC. 118. An arrest is made by an actual restraint of the made. person of the defendant or by his submission to the custody of officers. how authority mu SEC. 119. The officer must inform the defendant that he acts under authority of a warrant, and must also show the warrant if required. -Powersoof oM- SEC. 120. If, after notice of the intention to arrest the cers in case of flihtor ress- defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest. Whel arrest SEC. 121. An arrest may be made on any day, or at any may be made. In case of escatime of the day or night. If any person arrested escape or and rescue, how retaken. be rescued, the person from whose custody he made his escape, or was rescued, may immediately pursue and retake him, -at any time and within any place in the Territory. To retake the person escaping or rescued, the person pursuing has the same power to command assistance as is given in cases of arrest. CH. 82.] CRIMINAL PROCEDURE. 255l SEC. 122. Recognizances in criminal proceedings may beRec~gni~ezaes taken in open court and entered on the order book. open court. SEC. 123. Any officer authorized to execute a warrant inofficers empo~w ered to take rea criminal action, may take the recognizance and approvecognizances,a&c the bail; he may administer an oath and examine the bail as to its sufficiency. SEC. 124. Every recognizance taken by any peace officer, Recognzances must be certified by him, forthwith, to the clerk of the courtcorded by clerk. to which the defendant is recognized. The clerk must thereupon record the recognizance in the order book, and, from the time of filing, it has the same effect as if taken in open court. SEC. 125. The defendant may, in the place of giving bail, Money for bail. deposit with the clerk of the court to which the defendant is held to answer, the sum of money mentioned in the order, and, upon delivering to the sheriff the certificate of deposit, lie must be discharged from custody. SEC. 126. When any person is committed for an offence,mahen shebriff. and the amount of bail is specified in the warrant of commitment, the sheriff may take the recognizance and approve the bail. SEC. 127. When a surety desires to surrender his princi- Bailmaysurrender his pring pal, he may produce a copy of the recognizance from thecipal. clerk, by virtue of which the bail or any person authorized by him, may take the principal in any county within the Territory. SEC. 128. The bail; at any time before final judgmentsame. against him upon a forfeited recognizance, may surrender his principal in open court or to the sheriff, and, upon the payment of all costs, may thereupon be discharged from any further liability upon the recognizance. SEC. 129. The bail must deliver a certified copy of the Same. recognizance to the sheriff, with the principal; and the sheriff, must accept the surrender of the principal and acknowledge it in writing. SEC. 130. Any defendant, so surrendered, may give other bail or remain in custody until discharged by due course of law. Sic. 131. If, without sufficient excuse, the defendant neg- Ifdefendant neglect to ap. lect to appear for trial or judgment, or upon any other occa- par, the fact must be entered Sion, when his presence in court may be lawfully required ac- on court min.. utes. cording to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and the recog 256 CRIMINAL PROCEDURE. [C(, 32g nizance of bail or money deposited as bail, as the case may be, is thereupon forfeited. Action against SE(. 132. The prosecuting attorney may, at any time after bail, who by. the adjournment of the court, proceed by action against the bail upon the recognizance. Said action shall be governed by the rules of civil pleading, so far as applicable. Action on rehag- SEC. 133. NO action upon a recognizance may be defeated n account ofd for any defect of form or any omission of recital, condition defect, &c. or undertaking thereon, or neglect of the clerk to endorse or record it, but the recognizers are bound thereby to the full amount specified therein. A recognizance may be recorded after execution awarded. Frafnitedcorecot- SEC. 134. Any recognizance forfeited by the prisoner is colable on executibonn.xecu- lectable upon execution, although he is afterward arrested on the original charge, unless remitted by the court for causes shown. Cause maybefrom SEC. 135. If any person, indicted for a criminal offence, abthen.rm scond or flee from justice, or cannot be found to be served with process, or, being let to bail, shall not appear according to the condition of the recognizance, the cause may be continued, from term to term, without issuing process on the indictment; and such process may be issued at any time on the application of the prosecuting attorney. Of the Arraignment and other Proceedings before Trial. Indictments, SEC. 136. All indictments shall be tried at the first term at which the defendant appears, unless the same be continued from cause. If the defendant appear or is in custody at the time at which the indictment is found, such indictment shall be tried at the termi, unless continued for cause. In capital cases, SEC. 137. It shall be the duty of the clerk of the court in copy of indictment furnished which an indictment against any person, for a capital offence,:prisoner, when. may be pending, whenever the defendant shall be in custody, or held by recognizance to answer thereto, to make out a copy of such indictment, and cause the same to be delivered to the defendant or his counsel at least forty-eight hours before he shall be arraigned on such indictment. If the defendant pleads and goes to trial, without objecting for the want of such copy, the neglect of duty by the clerk will not be sufficient ground to set aside the verdict. In other caes, SEC. 138. Every person who shall be indicted for any ofdefendant enti. tied to copy on fence not capital, who shall have been arrested or held by demand, &c. recognizance to appear and answer to such indictment, shall, on demand and on payment of the fees allowed by law there CHI. 32.] CRIMINAL PROCEDURE. 257 for, be entitled to a copy of the indictment and all endorsements thereon. SEC. 139. If any person, about to be arraigned upon an in- Court to assig, dictment for a felony, be without counsel to conduct his de-tamcases fence, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner, at all reasonable hours. SEC. 140. When any person shall be arraigned upon any in- When plea of not guilty enterdictment, it shall not be necessary to ask him how he will be ed. tried; and if he deny the charge in any form or require a trial, or if he refuse to plead or answer, and in all cases when he does not confess the indictment to be true, a plea of not guilty shall be entered, and the same proceedings shall be had, in all respects, as if he had formally pleaded not guilty to such indictment. SEC. 141. No plea in abatement, or other dilatory plea to an Dilatory pleas, when admissa. indictment, shall be received by any court, unless the party of- ble. fering such plea shall prove the truth thereof, by affidavit or:some other evidence. SEC. 142. When any matters shall be pleaded to an indict- Venie of plet laid without the ment as having occurred in any other county than that in county, how tried. which the indictment was found, it shall be tried in the same manner as if it had been alleged to have occurred in the same county where such plea is tendered. SEC. 143. Every person indicted or prosecuted for a crimi- Defendant entitled to subpoenal offence shall be entitled to subpoenas and compulsory pro-nas, &c. cess for witnesses, in like manner and under like circumstances as parties in civil cases. SEC. 144. Disobedience to any such susbpoenas shall be pun- punisobedain ished in the same manner and upon the like proceedings as"civilces provided by law in civil cases; and every delinquent witness shall be liable to the party at whose instance he was summoned, in the same manner and to the same extent as in cases of witnesses summoned in a civil suit. SFC. 145. It shall not be necessary to pay or tender any fees Tender of fees not necessary in whatever to any witness summoned on the part of the Terri-crirminal cases. tory or on the part of the defendant; but such witness shall be bound to attend and be liable for his non-attendance, in the same manner as if the fees allowed to witnesses had been duly paid to him. SEC. 146. When any issue of fact is joined in any criminal 258 CRIMINAL PROCEDURE. [CO. 32.:iwhaitoaseto case, and any material witness for the defendant resides out of tgrkandepoitieo s Territory, or, residing within the Territory, is enciente, sick or infirm, or is bound on a voyage, or is about to leave this Territory, such defendant may apply to the court in which the cause is pending, for a commission to examine such witness upon interrogatories thereto annexed, and such court may grant the same upon the like proof and on the like terms as provided by law in civil cases. Officer prosenu- SEC. 147. The court granting such commission may permit ting may join in such commis- the officer prosecuting for the Territory to join in such com~ion, &c. mission, and to name material witnesses, to be examined on the part of the Territory, whose personal attendance cannot be obtained for like causes.'Interrogatories SEC. 148. Interrogatories, to be annexed to such commisto be annexed: how executed sion, shall be settled, and such commission shall be issued, and returned. executed and returned in the manner prescribed by law in respect to commissions in civil cases, and the depositions taken thereon and returned shall be read in the like cases and with the like effect as in civil suits. Depositions de SEC. 149. The defendant, in any criminal cause, may also beone esse, how taken, &C. have witnesses examined on his behalf, conditionally, upon a commission issued by the clerk of a court in which the cause is pending, in the same cases and upon the like notice to the prosecuting attorney, with the like effect and in all respects as is provided by law in civil suits. Ohangeofvenue, SEC. 150. Whenever any indictment or prosecution for a how made when judge is indict- criminal offence shall be pending in any court having jurisdiced. tion thereof, against the Judge thereof, the same shall be removed to the court of some county where some other Judge may preside, upon the order, in writing, of the prosecuting attorney, or upon the order of any Judge of the Supreme Court. oWen accoudtof in SEC. 151. When any indictment or criminal prosecution the judgetn shall be pending in any District Court, the same shall be removed, by the order of such court or Judge thereof, to the District Court of some county in a different district, in either of the following cases: First, When the Judge of the court in which the cause is pending is near of kin to the defendant, by blood or marriage: Second, Where the offence charged is alleged to have been committed against the person or property of such Judge, or some person near of kin to him: Taird, Where the Judge is in anywise interested or prejudiced, or shall have been counsel in the cause. Ca. 32.] CRIMINAL PROCEDURE. 259 SEC. 152. Any criminal cause pending in any District When allowed because of preCourt may be removed, by the order of such court or the judice in the people, &c. Judge thereof, to the Disirict Court of another county in the same district, whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein. SEC. 153. Whenever it shall appear, in the manner herein- When allowed from one distriot after provided, that the inhabitants of the entire district are s to another. prejudiced against the defendant that a fair trial cannot be had therein, the cause shall, by order of the court or Judge, be removed to another district, in which such prejudice is not alleged to exist. SEC. 154. Such order of removal, as specified in the twoPetition, by wbho m made, &e. preceding sections, shall be made on the application of the defendant; or, where the defendant is under the age of sixteen, on the application of the parent or guardian of such infant; and, if such infant has no parent or guardian, then on the application of any two respectable citizens of the county where the cause is at issue. SEC. 155. The petition of the applicant for a change of venue Must be aceonshall set forth the facts, and the truth of the allegations shall affidavit.' be supported by the affidavit of the defendant or some credible disinterested person, and reasonable previous notice of such application must be given to the prosecuting attorney. SEC. 156. Whenever it shall be within the knowledge of a When courtor judge may make court or judge that facts exist which would entitle a defendant an order fr change of venu,-. to the removal of any criminal cause, on his application, such without applica - tion. judge or court may make an order for such removal without any application by the party for that purpose. SEC. 157. Every order for the removal of any cause, under Oder of relno,al. the foregoing provisions, shall state whether the same is made on the application of the party, or on facts within the knowledge of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed. SEC. 158. No order for the removal of any cause shall bewhen application must be made on the application of the defendant, unless such appli- itadelduring the cation be made during the term of the court at which the indictment is found: Provided, Said defendant be in custody or on recognizance; and, if not so in custody or held to bail, then the application may be made at or before the first term after 260 CRIMINAL PROCEDURE. [C 2. the defendant shall have been arrested, and not thereafter, except as provided for in the next succeeding section. Iffacts sufficient SEC. 159. If the defendant will, in addition to the oath arise since last continuanc,e requisite in ordinary and timely applications, swear that the allowed, facts on which he grounds his application have first come to his knowledge since the last preceding continuance of the cause, the court shall grant a change of venue, although such application shall be made at a term subsequent to that at which the prisoner was likely to be arraigned. Omader, ho SEC. 160. Every order for the removal of a cause, if made in term, shall be entered on the minutes, if made by an officer, out of court, shall be in writing and signed by such officer, and shall be filed by the clerk, with the petition, if any, as a part of the record in the cause. Recognizance, SEC. 161. When such order shall be made, the defendant, if how and when taken. not in confinement or custody, shall enter into a recognizance, with sufficient sureties, for his appearance to answer the charge in the court to which the cause is to be removed, at the next term thereof, and not to depart such court without leave. By whom. SEC. 162. Stch recognizance may be taken by the court or judge making the order, or by any court or officer authorized by law to let to bail after indictment, and, when taken out of the court in which the cause is pending, shall be filed with the clerk thereof. oRestrictions up- SEC. 163. NO order for the removal of a cause shall be (o the privilege. effectual in the case of any defendant, not in confinement or custody, unless a recognizance, taken as herein directed, be entered into in open court, or delivered with the order, and filed with the clerk of the court, nor unless such order be delivered before any juror is sworn in the cause; and, in no case, shall a second removal of any cause be allowed. Order to remove SEC. 164. If the defendant be in actual custody or confinethe body, when made. ment, the court or officer granting the order of removal shall also make an order commanding the sheriff to remove the body of the defendant to the jail of the county into which the cause is to be removed, and there deliver him to the keeper of such jail, together with the warrant or process by virtue of which he is imprisoned or held.:ity. of sheriff SEC. 165. The sheriff shall obey such order without unnecesin obeying the ordler. sary delay, and shall endorse on the commitment or process, by virtue of which the prisoner was in his custody, the reason of the change of custody, and shall deliver such warrant, with the CEO. 32.] CRIMINAL PROCEDURE. 261 prisoner, to the keeper of the jail of the proper county, who shall give such sheriff a receipt therefor, and take charge of and keep the prisoner in the same manner as if he had been originally committed to such jail, SEC. 166. Whenever any order shall be made for the removal Transcript of the record to be of any cause under the foregoing provisions, the clerk of the made out, &c. court in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the petition therefor, if any, and the recognizance of the defendant, and of all witnesses, and shall transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal, is ordered. SEC. 167. On the receipt of such transcript by the clerk of:auseto proceed in all respects as the court to which any cause is removed, he shall file the same ifit originated as a record of his court, and the same proceedings shall be had in the cause in such court, in the same manner and in all respects as if the same- had originated therein. SEc. 168. If such transcript shall not be transmitted, or shall How to proceed if transcript be Lnot be received at or before the first term of the court to which not transmitted or received, &c. the cause is ordered to be removed, or if such transcript shall be lost or destroyed, the cause shall not, by reason thereof, be discontinued, but such transcript or another in lieu thereof, may be transmitted and filed, as required by this act, at or before the next succeeding term of such court, and proceedings thereon shall be had as if no such failure or loss had happened. SEC. 169. The defendant, and all witnesses and others who Defendantand witnesses under shall have entered into any recognizance to attend the trial of recognizance bound to attend such cause, having notice of the removal thereof, shall be bound the trial, &c. to attend at the time and place of trial, in the county to which the cause is removed; and a failure to do so shall be deemed a breach of recognizance. SEC. 170. When the order of removal is made in term, it Orderof removal a notice to shall be deemed a notice to every person who shall have enter- persons under recognizance, ed into a recognizance to appear at such term; in other cases, wheln; notice in writing shall be the notice shall be in writing, signed by the prosecuting attor- given when. ney or clerk of the court, and served on the person so recognized, in the manner provided by law for serving notices. SEC. 171. The costs and expenses necessarily incurred in the costsofremoal,, how adjusted removal of any such cause, under the foregoing provisions, andtaxed. shall be adjusted and allowed by the court wherein the cause is tried, and shall be taxed as other costs in such cause. SEc. 172. If any clerk of the district court shall neglect or 262 CRIMINAL PROCEDURE. [CH. 32. Ponltyec ofl' refuse to perform any duty in relation to the removal of a cause duty. enjoined on him by the foregoing provisions, he shall forfeit and pay a sum not exceeding five hundred dollars, to be recovered by action in the name and to the use of the Territory. Proceedings SEC. 173. Where there are several defendants in any indictwhen there are several defend.l ment in a criminal prosecution, and the cause of the removal ants, and order of removal as to thereof exists only as to part of them, the other defendants part only. shall be tried, and all proceedings had against them, in the county in which the case is pending, in all respects as if no order of removal had been made as to any defendant. Ot continuance, SEC. 174. Whenever a criminal case shall be continued, all witnesses may be recognized. the witnesses in attendance shall be called by the court, and as many of them as the parties may desire, shall be required to enter into recognizance for their appearance at the next term:Penalty for non at which such case shall be set for trial; and, if any such witattendance at next term. ness shall fail to appear in said court when so called for the purpose of being recognized, such witness shall forfeit all his fees as witness in such cause, and may be compelled so to appear, by attachment. Of Trials and Incidents thereto. Trial submitted SEC. 175. The defendant and prosecuting attorney. with the to court. assent of the court, may submit the trial. to the court, except in capital cases; all other trials must be by a jury, to be selected, summoned and returned, as prescribed by law. Jury for trial of SEC. 176. No alien shall be entitled to a jury of part aliens aliens. or strangers for the trial of any indictment, but in every case the jurors shall be such only as are qualified to serve according to the laws of this Territory. for tridal ofcritm SEC. 177. The defendant, in every indictment for a criminal inal offence, in offence shall be entitled to a peremptory challenge of jurors, in what cases de- s ntl o prmty ftndant entmtled the following cases, as follows: First, If the offence charged is e~allenge ofju- punishable with death or by imprisonment in the penitentiary not less than for life, to the number of twelve and no moreSecond, If the offence be punishable by like imprisonment, not less than a specified number of years, and no limit to the duration of such imprisonment is declared, to the number of eight and no more: Third, In any other case punishable by imprisonment in the penitentiary, to the number of six and no more: Fourth, In cases not punishable with death or imprisonment in the penitentiary, to the number of four and no more. SEC. 178. In all criminal trials, the Territory may challenge, Cn. 32.] CRIMINAL PROCEDURE. 263 peremptorily, half the number of jurors allowed the defendant Territory may by the preceding section. SEc. 179. If the offence charged be punishable with death, Poersons having conscientious any person entertaining such conscientious opinions as would scruples, shall not serve as jupreclude his finding the defendant guilty, shall not serve as a ror. juror. SEC. 180. NO person who believes the punishment fixed by When a pertso shall not act as law to be too severe for the offence, or entertains any opinionjuror. that would preclude his finding the defendant guilty, shall be sworn as a juror. SEC. 181. Where any indictment alleges an offence against Certain petrson the person or property of another, neither the injured party orijnrors. any person of kin to him, shall be a competent juror on the trial of such indictment; nor shall any person of kin to the prosecutor or defendant in any case, serve as a juror on the trial thereof. SEC. 182. No person who was a member of the grand jury Grandvurors lot or inquest, by which any indictment or presentment was jurorscin the found in any cause, shall serve as a petit juror on the trial of such cause. SEc. 183. No witness in any criminal case shall be sworn Not to be sworn if challenged, as a juror therein, if challenged for that cause before he is &csworn; and if any juror shall know any thing relative to the matter in issue, he shall disclose tile same in open court. SEC. 184. It shall be a good cause of challenge to a juror, What shall be a good cause of that he has formed or delivered an opinion on the issue or any challenge to a material fact to be tried; but if it appear that such opinion is founded only on rumor, and not such as to prejudice or bias the mind of the juror, he may be sworn. SEC. 185. All challenges for cause may be tried by the Cnallenges foir court on the oath of the person challenged, or by triers on other evidence, and such challenges shall be made befbre the juror is sworn; but if the cause of challenge be discoveredIf cause disjcovered after juror after the juror is sworn, and before any part of the evidence is sworn, may is delivered, he may be discharged or not, in the discretion of the court. SEC. 186. No person indicted for a felony can be tried Defendants to be present at trials, unless he be personally present during the trial, nor can any ittno or by person indicted for any other offence be tried unless he be present, either personally or by his counsel; and every person Adtitted to make proof, &c. indicted shall be admitted to make any lawfiul proof; by competent witnesses or other testimony, in his defence. 264 CRIMINAL PROCEDURE. [CH. 32, Procegledings SEC. 187. The proceedings prescribed by law in civil cases, in respect to the impanneling of jurors, the keeping them together, an'd the manner of rendering their verdict, shall be had upon trials on indictments and prosecutions for criminal offences, except in cases otherwise provided by statute. Law in civil SEC. 188. The provisions of law in civil cases, relative to cases, in what instances exten- ecompelling the attendance and testimony of witnesses, their ded to criminal proceedings. examination, the administration of oaths and affirmations and proceedings as for contempt, to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in'any statute. Verdicts may be SEC, 189. Verdicts may be set aside, and new trials awarded, set aside, new trials awarded, on the application of the defendant, and continuances may be &c., as in ciYil cases. granted to either party, in criminal cases, for like causes, and under the like circumstances, as. in civil cases. Evidence of SEC. 190. In trials for treason, no evidence shall be given trials for treas- of any overt act that is not expressly laid in the indictment, and no conviction shall be had upon any indictment for such offence, unless one or more overt acts be expressly alleged therein. Proof necessary SEC. 191. In trials for conspiracy, in those cases where an to sustain an indictment for overt act is required by law to consummate the offence, no conspiracy. conviction shall be had unless one or more overt acts be expressly alleged in the indictment, and proved on the trial; but other overt acts, not alleged in the indictment, may be given in evidence on the part of the prosecution. Proof on indict- SEC. 192. Proof of actual penetration into the body shall ment for rape, &c. be sufficient to sustain an indictment for rape, or for the crime against nature. Evidence of ex- SEC. 193. If, on trial or other proceeding in a criminal istence, powers, &.,of banking cause, the existence, constitution, or powers of any banking poration. company or corporation shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the State, government, or country by which such corporation was created. Prosseutor or SEC. 194. No person shall be rendered incompetent to person injured a competent wit, testify in criminal causes by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or that would be entitled to satisfaction for the injury, or is liable to pay the costs of the prosecution. Cii. 32.] CRIMINAL PROCEDURE. 265 SEC. 195, Persons of skill, or expert, may be called to Skillful persons may be called to testify as to the genuineness of a note, bill, draft, certificate testify in cases of of deposit, or other writing; but three witnesses at least shall be required to prove the fact, except in case of a larceny thereof. SEC. 196. Any person called as a witness to testify againstWitnesses against persons another for gaming, is a competent witness to prove the for gambling not liable to inoffence, although he may have been concerned as a party,diotmentinsuch and is compelled to testify as other witnesses; bnt he shall not be liable to indictment or punishment in any such case. SEc. 197. When two or more defendants are jointly indicted When tried separately; when for any felony, anyone defendant requiring, it shall be tried ointly. when separately; in other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court. SEc. 198.. On the trial of any indictment or prosecution Defendants may file bills of exfor a criminal offence, exceptions to any decisions of the court coption; proceedings. may be made in the same cases and manner provided by law in civil cases, and bills of exceptions shall be settled, signed, sealed, and filed as now-allowed by law in personal actions; and the same proceedings may be had to compel or procure the signing and sealing of such bills, and the return thereof, as in civil cases. SEC. 199. If any person, indicted for any offence, and corn- Prisoners indicted and committed to prison, shall not be brought to trial before the end mitted, when to be discharged. of the second term of the court having jurisdiction of the offence, which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to the offence for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term. SEC. 200. If any person, indicted for any offence, and held Indicted and held to answer to answer on bail, shall not be broughtcto trial before the end on bail, when of the third term of the court in which the cause is pending, charge. which shall be held after such indictment found, he shall be entitled to be discharged, so far as relates to such offence, unless the delay happen on his application, or be occasioned by the want of time to try such cause at such third term, SEC. 201. If, when application is made for the discharge ofProceedings of -D b the court on ap-. a defendant under either of the last two sections, the court pincationfor discharge under shall be satisfied there is material evidence on the part of the either of last two Territory, which can not then be had, tha-t reasonable exertions 266 CRIMINAL PROCEDURE. [Ca. 32. have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may be continued to the next term, and the prisoner remanded, or admitted to bail, as the case may require. Ifdefendnt be SEC. 202. If a defendant be indicted by a wrong name, wrong name. unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allegesthat SEC. 203. If he alleges that another name is his true name, another is his true name. it must be entered in the minutes of the court, and the subProceeding. sequent proceedings on the indictment may be had against him by that name, referring also to the name by which he is indicted. Court mayquash SEC. 204. The court may quash an indictment, on motion, an indictment. conditions- when it appears upon its face either: First, That the grand jury had no legal authority to inquire into the offense charged. Second, That the facts stated do not constitute a public offense. Third, That the indictment contains anlly matter which, if true, would constitute a legal justification of the offense charged, or other legal bar to the prosecution. SEC. 205. No indictment shall be nolle prosequied, except by order of the court, on motion. Order of trial. SEC. 206. The jury being impanneled and sworn, the trial may proceed in the following order: First, The prosecuting attorney must state the case, and offer the evidence in support of the prosecution. Second, The defendant or his counsel may then state his defense, and offer evidence in support thereof. Third, The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original case. Fourth, When the evidence is concluded, unless the case is submitted without argument, the counsel for the Territory shall make the opening argument, the counsel for the defendant or defendants shall follow, and the counsel for the Territory shall conclude the argument. Fifth, The court must then charge the jury. Defendantispre- SEC. 207. A defendant is presumed to be innocent until sumed innocent until contrary the contrary is proved. When there is a reasonable doubt proved. Acquitted on whether his guilt is satisfactorily shown, he must be acquitted. reasonable b doubt. When there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only. CU. 32.] CRIMINAL PROCEDURE. 267 SEC. 208. When two or more persons are included in one One d fendant prosecution, the court may, at any time before the defendant ed and admitted has gone into his defence, direct any defendant to be discharged, that he may be a witness for the Territory. A defendant may also, when there is not sufficient evidence to put him on his defence, at any time before the evidence is closed, be discharged by the court for the purpose of giving testimony for a co-defendant. The order of disqcarge is a bar to another prosecution for the same offence. SEC. 209. When it appears, at any time before verdict or Whebnemistake judgment, that a mistake has been made in charging the incharging the proper offence, the defendant shall not be discharged, if there Proceeding. appears good cause to detain him in custody; but the court must recognize or commit him to answer to the offence, and, if' necessary, recognize the witnesses to appear and testify, SEC. 210. When it appears, at any time before verdict or When defendant is prosecuted in judgment, that the defendant is prosecuted in a county not a county not having jurisdichaving jurisdiction, the court may order the venue of the tion. indictment to be corrected, and direct that all the papers and proceedings be certified to the proper court of the proper county, and recognize the defendant and witnesses to appear at such court on the first day of the next term thereof, and the prosecution shall proceed, in the latter court, in the same imanner as if it had been there commenced. SEC. 211. When a jury has been impanelled, in either case When jury has contemplated in the two last preceding sections, such jury may case, may be hdia be discharged without prejudice to the prosecution. charged. SEC. 212. When the defendant has been convicted or ac-When indictment consists ol quitted upon an indictment for an offence consisting of different different degrees degrees, the conviction or acquittal shall be a bar to another indictment for the offence charged in the former or for any lower degree of that offence, or for an offence necessarily inceiided therein. SEC. 213. If a juror has personal knowledge of any fact frajarlo nhw material to the cause, he must declare it to the court, and not ledge of a fact to to his fellow-jurors out of court; if a juror declare a fact ma- court, andinot to terial to the cause to his fellow-jurors, without the knowledge follow jurors of the court and defendant, he may be punished as for a contempt. SEC. 214. When the jurors are permitted to separate, after When jurors permitted to sepbeing impanneled, and at each adjournment, they must be ad- arate notto conmonished by the court that it is their duty not to converseence tothe tria 268 CRIMINAL PROCEDURE. [CE. 32. among themselves, nor suffer others to converse with them, on any subject connected with the trial, or to form or express any opinion thereon, until the cause is finally submitted to them. hargingury SEC. 215. The judge must charge the jury in writing, when by the judge. either party request it, and the charge shall be filed among the papers of the cause. In charging the jury, he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are exclusive judges of all questions of fact. Jury may decide SEC. 216. After hearing the charge, the jury may either in court or retire. decide in court or retire for deliberation. They may retire Dutyofofficerinunder the charge of an officer, sworn to keep them together charge of jury. in some private and convenient place, without food, except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself, unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court or when ordered by the court. The officer shall not communicate to any person the state of their deliberations. Of the Verdict and Judgment, and Proceedings thereon. when verdictis SEC. 217. When the jury have agreed upon their verdict, agreed upon. Proceeding. they must be conducted into court, by the officer having them in charge. Their names must then be called, and if all appear, their verdict must be rendered in open court. If all do not appear the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term. Jury to specifyr SEC. 218. Upon the trial of any indictment for any offence, the degree of offendactben den where by law there may be conviction of different degrees of guilty. such offence, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offence they find the defendant guilty. Jury to ascertain SEC. 219. Where the indictment charges an offence against the value of the property stolen, the property of another by robbery, theft, fraud, embezzlement, &C. or the like, the jury, on conviction, shall ascertain and declare in their verdict the value of the property taken, embezzled or received, and the amount restored, if any, and the value thereof; but their failure to do so shall in no wise affect the validity of their verdict. Jury to assess SEC. 220. In all cases of a verdict of conviction for any ofthe punishment. CmH. 32.] CRIMINAL PROCEDURE. 269 fence, where by law there is any alternative or discretion in regard to the kind or extent of punishment to be inflicted, the jury may assess and declare the punishment in their verdict, and the court shall render a judgment according to such verdiet, except as hereinafter provided. SEC. 221. Where the jury find a verdict of guilty, and fail When court shall assess the to agree on the punishment to be inflicted, or do not declare same. such punishment by their verdict, or assess a punishment not authorized by law, and in all cases of judgment by confession, the court shall assess and declare the punishment, and render judgment accordingly. SEC. 222. If the jury assess a punishment, whether of im- When it may be increased by the prisonment or fine, below the limit prescribed by law for the court. offence of which the defendant is convicted, the court shall pronounce sentence and render judgment according to the lowest limit prescribed by law in such case. SEC. 223. If the jury assess a punishment, whether of im- when diminished, prisonment or fine, greater than the highest limit declared by law for the offence of which they convict the defendant, the court shall disregard the excess, and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case. SEC. 224. The court shall have power, in all cases of convic- Power of court to reduce puntion, to reduce the extent or duration of the punishment as- ishment. sessed by a jury, if, in its opinion, the conviction is proper, but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted. SEC. 225. The court before which any person shall be con- Power of court to require securvicted of any criminal offence, shall have power, in addition to ity of the peacer &C., from conthe sentence prescribed or authorized by law, to require such victs. person to give security to keep the peace or be of good behavior, or both, for a term not exceeding two years, or to stand committed until such security be given. SEC. 226. The last section shall not extend to convictions;Lmitatlonsof the preceding., for writing or publishing any libel, nor shall such security be section. hereafter required by any court, upon any complaint, prosecution or conviction for any such writing or publishing. SEC. 227. No recognizance given under the provisions of When recognizance deemed to the second preceding section shall be deemed to be broken, un- bebroken. less the principal therein be convicted of some offence, amounting, in judgment of law, to a breach of such recognizance; SEC. 228. After verdict of guilty or finding of the court 18 270 CRIMINAL PROCEDURE. [Ci. 32. After verdict of against the defendant, if the judgment be not arrested or a guilty, court judgment not jgment.uce new trial granted, the court must pronounce judgment. Defendant to be SEC. 229. For the purpose of judgment, if the conviction be present. preent. for an offence punishable by imprisonment, the defendant must be personally present; if for a fine only, he must be personally present, or some responsible person must undertake for him to pay the judgment and costs; judgment may then be rendered in his absence. oeffcer to bring SEC. 230. When the defendant is convicted of any offence, if defendant before court forjudg- he be in custody, the court may direct the officer, in whose custody he is, to bring him before it for judgment. Warrant may be SEC. 231. If, in any case, the defendant is not present when issued for his arrest if not pres- his personal attendance is necessary, the court may order the ent. clerk to issue a warrant for his arrest, which may be served, in any county in this Territory, as a warrant of arrest in other cases. Defendant may SEC. 232. When the defendant appears for judgment, he show why judgment should notmust muste informed by the court of the verdict of the jury, and be pronounced against him. asked whether he have any legal cause to show why judgment should not be pronounced against him. If no sufficient SEC. 233. If no sufficient cause be alleged or appear to the cause be shown, it shall be ren- court why judgment should not be pronounced, it shall theredered. upon be rendered. When defendant SEC. 234. When the defendant is adjudged to pay any fine is adjudged to pay any fine,&c, and costs, the court shall order him to be committed to the jail court may order him to jail until of the county, until the same are paid or replevied.:same is paid. SEC. 235. In all cases in which the prosecutor shall be adjudged to pay the costs, he shall be sentenced to pay the costs of prosecution, or give security to the sheriff to pay the same in ten days, and to stand committed until the sentence be complied with. Any person may SEC. 236. Any person, imprisoned for failure to pay any fine be discharged from prison by or costs, may be ordered to be discharged by the court, or by the court. the judge of any court, after being imprisoned one day for every fifty cents of the fine and costs, if it appear by satisfactory proof, that such person is unable to pay the same; but conditions. execution may issue against the property of the defendant or prosecutor as on other judgments. Judgment of SEC. 237. Whenever judgment upon a conviction shall be court to be fully entered in min rendered in any court, the clerk of such court shall enter such judgment fully on the minutes, stating briefly the offence for which such conviction shall have been had, and the court shall Ing. 32.] CRIMINAL PROCEDURE. 271 inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in no wise effect or impair the validity of the judgment. SEc. 238. Whenever a sentence of imprisonment in a county Authoriity of sheriff to execute jail shall be pronounced upon any person convicted of any of- setoence ofifence, the clerk of the court shall, as soon as may be, make out countyjail. and deliver to the sheriff of the county a transcript of the entry of such conviction, and of the sentence thereupon, duly certified by such clerk, which shall be sufficient authority to such sheriff to execute such sentence, and he shall execute the same accordingly. SEC. 239. Where any convict shall be -sentenced to any pun- Tict tonvyconishment, the clerk of the court in which the sentence was passed punishment, how to be execu shall forthwith deliver a certified copy thereof to the sheriffted. of the county, who shall, without delay, either in person or by a general and usual deputy, cause such convict to receive the punishment to which he was sentenced. SEC. 240. Such sheriff or deputy, while conveying a convict Authorityof sheriff requiring to the place of punishment, shall have the same power and like assistance in - such oases. authority to require the assistance of any citizen of this Territory in securing such convict, and re-taking him if he shall escape, as such sheriff or deputy has in any other case; and all persons who shall neglect or refuse to assist such sheriff or Penaltyon those deputy, when required, shall be liable to the same penalties as Ousing to. sfor similar, refusals in other cases. SEc. 241. Whenever any convict shall be sentenced to the Authority of sheriff to exepunishment of death, the court shall cause to be made out, cute sentence of sealed and delivered to the sheriff of the county, a warrant executing. stating such conviction and sentence, and appointing a day on which such sentence shall be executed, which shall not be less than four nor more than eight weeks from the time of the sentence.; S3c. 242. The punishment: of death, prescribed by law, must Death must be be inflicted by hanging by the neck, at such time as the court by hanging. may adjudge. SEC. 243. When execution of such sentence is respited to a When execution is respited by tbh farther day by the governor, the sheriff must note the same on governor to a farther day. the warrant, and the defendant must be detained in custody Duty of sheri. until the day to which the respite is granted, at-which time the sheriff, unless the judgment is reversed or the defendant pardoned, must execute the sentence between the hours specified in the judgment, and return the warrant with -the respite. 272 CRIMINAL PROCEDURE. [COH. 32.. dSentence ofd SEC. 244. Sentence of death shall be executed in some priin some private vate enclosure, as near to the jail as. possible. The sheriff shall enclosure. Persons whoent. invite to be present at the execution, by at least three days' notice, the prosecuting attorney, clerk of the court, together with two physicians and twelve reputable citizens, to be selected by him. He must also, at the request of the defendant, permit any minister of the gospel whom the defendant may name, and any of his relatives, to attend the execution; and, also, such peace officers as the sheriff may deem proper. No person, other than those mentioned in this section, can bbe present at the execution, nor can any person under age be allowed to witness the same. Execution may SEC. 245. For good cause shown, the court in which the conbe suspended, by whom. viction is had, or the governor,. may prolong the time, or suspend the execution of any convict sentenced to the punishment of death; and no other court or officer shall have such authority, except in the cases and in the manner hereinafter provided. Jury to inquire SEC. 246. If, after any convict be sentenced to the punishinto insanity of convict when ment of death, the sheriff shall have cause to believe that such summoned. convict has become insane, he may summon a jury of twelve competent jurors to inquire into such insanity, giving notice thereof to the prosecuting attorney. Prosecuting at- SEC. 247. The prosecuting attorney shall attend such intorney to attend such inquiry,&c. quiry, and may produce witnesses before the jury, and may Proceedings. cause subpoenas to be issued by a justice of the peace for that purpose, and disobedience thereto may be punished by the district court, in the same manner as in other cases. Inquisition, by SEc. 248. The inquisition of the jury shall be signed by if soe,dt fould themy and by the sheriff; if it be found that such convict is insheriff, sane, the sheriff shall suspend the execution of the sentence until he receives a warrant from the governor, or from the supreme or district court, as hereinafter authorized, directing the execution of such convict. Inquisition to SEc. 249.1 The sheriff shall immediately transmit such inquibe transmitted to governor; his sition to the governor, who may, as soon as he shall be conpower and -duty in such case. vinced of the sanity of such convict, issue a warrant, appointing the time and place for the execution, pursuant to his sentence; or he may, in his discretion, commute the punishment to imprisonment for life. Jury to ascer. SEc. 250. If, after any female convict shall be sentenced to the punishment of death, the sheriff shall have reason to sus CO. 32.] CRIMINAL PROCEDURE. 273 pect that she is pregnant, he shall, in like manner, summon a of female convict, to be sumjury of six persons, not less than three of whom shall be phy- hobd,y the sicians, and shall give notice thereof to the prosecuting attor- Proceedings. ney, who shall attend, and the proceedings shall be had as provided in the second preceding section of this article. SEC. 251. The inquisition shall be signed by the jury and Duty of sheriff if the sheriff, and, if it appear that such female convict is quick fhudquickwith with child, the sheriff shall, in like manner, suspend the execution of her sentence, and transmit the inquisition to the governor. SEC. 252. Whenever the governor shall be satisfied that the When executico of such convict cause of such suspension no longer exists, he shall issue his tobhedirected; warrant, appointing a day for the execution of such convict, commuted. pursuant to her sentence; or he may, at his discretion, commute her punishment to imprisonment for life. SEC. 253. Whenever, for any reason, any convict sentenced Supreme court may issue hato the punishment of death, shall not have been executed pur- borafus or a suant to such sentence, and the salme shall stand in full force, prehension of -3 I~ convict when the supreme court, or the district court of the county in which sentence of death has not the conviction was had, on the application of the prosecuting been executed, attorney, shall issue a writ of habeas corpus to bring such convict before the court; or, if he be at large, a warrant for his apprehension may be issued by such court or any judge thereof. SEC. 254. Upon such convict being brought before the court, Duty of court when such conthey shall proceed to inquire into the facts, and, if no legal ict is brought before It; may reasons exist against the execution of such sentence, such issue a warrant court shall issue a warrant to the sheriff of the proper county, sentence. commanding him to do execution of such sentence, at such time as shall be appointed therein, which shall be obeyed by the sheriff accordingly. SEC. 255. It shall be the duty of the clerk of the district Execution to be issued for fine court, at the end of each term, to issue executions for all fines nd cos,ts, when; imposed, and the costs of conviction in criminal cases, during the term, and remaining unpaid, which shall be executed in the same manner as executions in civil cases, and the property of the defendant may be seized and sold thereon, notwithstanding he may be in custody for the same demand. Of New Trials and Arrest of Judgment. SEC. 256. A new trial is a re-examination of the issue insw t the same court. 274 CRIMINAL PROCEDURE. [Cu. 32. Same. SEC. 257. The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict can not be used or referred to either in the evidence or argument. Court may grant SEC. 258. The court may grant a new trial for the following new trial for causes. c ausesor any of them: First, When the jury has received any evidence, papers or documents, not authorized by the court, or the court has admitted illegal testimony, or for newly discovered evidence: Second, When the jury has been separated, without leave of the court, after retiring to deliberate upon their verdict, or have been guilty of any misconduct tending to prevent a fair and due consideration of the case: Third, When the verdict has been decided by means other than a fair expression of opinion on the part of all the jurors: Fourth, When the court has misdirected the jury in a material matter of law: FiJfth, When the verdict is contrary to law or evidence; but not more than two new trials shall be granted for this cause alone. Application. SEC. 259. The application for a new trial must be made before judgment. A motion in ar- SEC. 260. A motion in arrest of judgment is an applicarest of judgment isanapplicationtion, on the part of the defendant, that no judgment be and may be grantedforcaus- rendered on a verdict of guilty or finding of the court, and may be granted by the court for either of the following causes First, That the grand jury, who found the indictment, had no legal authority to inquire into the offence charged, by reason of it not being within the jurisdiction of the court: Second, That the facts stated do not constitute a public offence. SEC. 261. The court may also, on its view of any of these defects, arrest the judgment without motion. Effect of allow- SEC. 262. The effect of allowing a motion in arrest of judging a motion in arrest ofjudg" ment is to place the defendant in the same situation in which he was before the indictment was found, except in cases otherwise provided for. Same. SEC. 263. When judgment is arrested in any case, and there is reasonable ground to believe that the defendant can be convicted of an offence, if properly charged, the court may order the defendant to be recommitted or admitted to bail anew, to answer a new indictment. Of Appeal. Appeal to un- SEC. 264. An appeal to the supreme court may be taken by preme court. Ca. 32.] CRIMINAL PROCEDURE. 275 the defendant, as a matter of right, from any judgment against him, and upon the appeal any decision of the court or intermediate order, made in the progress of the case, may be reviewed. SEC. 265. An appeal from a judgment in a criminal action An appeal from a judgment may may be taken in the manner and in the cases prescribed in betaken. this chapter. SEC. 266. Appeals to the supreme court may be taken by Appeals to the supreme court the Territory in the following cases, and no other: First, Upon taken by the Territory. a judgment for the defendant, on quashing or setting aside an Conditions. indictment: Second, Upon an order of the court arresting the judgment: Third, Upon a question reserved by the Territory. SEC. 267. The appeal must be taken within one year after Appeal must b taken in one the judgment is rendered, and the transcript- must be filed year. within thirty days after the appeal is taken. SEC. 268. An appeal is taken by the service of a notice Form and manner of an appeal. upon the clerk of the court where judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the Territory, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the clerk's office. SEC. 269. An appeal, taken by the Territory, in no case N~aPperrlOby stays or affects the operation of the judgment in favor of the affects the Judg. stays or eut until the defendant until the judgment is reversed. judgment is red SEc. 270. An appeal to the supreme court from a judgment Appeal to the'- supreme court of conviction, does not stay the execution, except when the from ajudgjudgment is for a fine or fine and costs only, in which case the tion does not stay the execuexecution may be stayed by an order of the supreme court or rxption. a judge thereof. SEC. 271. In case of an appeal from a question reserved on Incase of appeal from question the part of the Territory, it is not necessary for the clerk of reervedon the part of the Terthe court below to certify in the transcript, any part of the ritory, &c. proceedings and record, except the bill of exceptions and the judgment of acquittal. When the question reserved is defectively stated, the supreme court may direct any other part of the proceedings and record to be certified to them. SEC. 272. An appeal shall stand for trial immediately after When appeal shall stand for filing the transcript, if the supreme court is in session; if not trial. in session, at the next term thereafter, on proof of notice of appeal to the appellee. 276 CRIMINAL PROCE3DURE. [CH. 32, When several SEC. 273. When several defendants -are tried jointly, any defendants tried jointly, any one one or more of them may take an appeal; but those who do not join in the appeal, shall not be affected thereby. Appellate court SEC. 274. The appellate court may reverse, affirm or modify may reverse, affudgrm &c the the judgment appealed from, and may, if necessary or proper, pealed. order a new trial. In either case, the cause must be remanded to the court below, with proper instructions, and the opinion of the court, within the time and in the manner to be prescribed by rule of the court. When asjudg- SEC. 275. When a judgment against the defendant is rement is reversed. versed, and it appears that no offence whatever has been comProceeding. mitted, the supreme court must direct that the defendant be discharged; but if it appear that the defendant is guilty of an offence, although defectively charged in the indictment, the supreme court must direct the prisoner to be returned and delivered over to the jailor of the proper county, there to abide the order of the court in which he was convicted. Judgment with- SEC. 276. On an appeal, the court must give judgment, out regard to errors. without regard to technical errors or defects, or to exceptions which do not effect the substantial rights of the parties. Appeal not dfect SE. 277. An appeal shall not be dismissed for any informality or defect in the taking thereof. If the same be cor, rected within a reasonable timle after an appeal has been dismissed, another appeal may be taken. On a judgment SEC. 278. On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct. Opiones of stU SEC. 279. All opinions of the supreme court in criminal writing. prosecutions must be given in writing and recorded in the order book. Miscellaneous Provisions. Search warrants SEC. 280. Upon complaint being made, on oath, to any offlby and to whom issued. cer authorized to issue process for the apprehension of offenders, that any personal property has been stolen or embezzled, and that the complainant suspects that such property is concealed in any particular house or place, if such magistrate shall be satisfied that there is reasonable ground for such suspicion, he shall issue a warrant to search for such property. robe directed SEC. 281. Such warrant shall be directed to the sheriff of lo sheriff or ciCnstable. the county, or any constable of the township, and shall com-n mland him to search the place where such property is suspected CH. 32.] CRIMINAL PROCEDURE. 277 to be concealed, in the day time, which place shall be desig- Command of warrant. nated, and the property particularly described in such warrant, and to bring such property before the magistrate issuing the warrant. SEc. 282. If there be positive proof that any property, Warrant may order search. stolen or embezzled, is concealed in any particular place or house, the warrant may order the searching of such place or house. SEC. 283. Every such warrant shall be executed by a pub- By whom only executed. lie officer, and not by any other person. SEC. 284. Any magistrate who shall commit any person, ammitting charged with an offence, to jail, or by whom any vagrant or thorizched agrant disorderly person shall be committed, may cause such person cuderon. acto be searched, for the purpose of discovering any money or property he may have; and, if any be found, the same may be taken and applied to the support of such person while in confinement. SEc. 285. When property alleged to have been stolen, shall Property alleged to be stolen, in come into the custody of any sheriff, coroner, constable, mar- posesion ofiofflin shal or any person authorized to perform the duties of suchjtectto order, &c.b officers, he shall hold the same subject to the order of the officer authorized to direct the disposition thereof. SEc. 286. Upon receiving satisfactory proof of the title of Magistrates may 286. Upon receivn~~ satis order its delivery any owner of such property, the magistrate, who shall take to owner,when and on what the examination of the person accused of any of the offences terms. referred to in the preceding section, may order the same to be delivered to such owner, on his paying the reasonable and necessary expenses incurred in the preservation of such property, to be certified by such magistrate, which order shall entitle the owner to demand and receive such property. SEc. 287. If such property come into the custody of a jus- Such property in custody of magtice of the peace or other magistrate, upon satisfactory proof strbate ty boe of the title -of any owner thereof, it shall be delivered to him ner, when. on the payment of the necessary expenses incurred in the preservation thereof, to be certified by such magistrate. SEc. 288. If such property shall not have been delivered to Court may order ~such property to the owner thereof, the court before which a conviction shall be delivered to owner, when. be had for the stealing, embezzling or obtaining such property, in any of the modes referred to in the sixth section of this article, may, on proof of the ownership of any person, order the same to be restored to him, on payment of the expenses incurred in the preservation thereof, 278 CRIMINAL PROCEDURE. [CH. 32. When no owner SEC. 289. If such property shall not be claimed by the appears, may be sold. owner within six months from the time any person shall have been convicted of obtaining it, in any of the modes referred to in this act, the court or magistrate authorized by the preceding provisions to order a restoration, may order the same to be sold, and the proceeds of the sale, after payment of the expenses of the preservation and sale of the property, shall be paid into the county treasury for the use of the county. Perishable pror. SEC. 290. If the property thus obtained be a living animals erty to be sold. or of a perishable nature, the court or magistrate authorized co order a restoration, may. order a sale thereof, and the proceeds shall be applied in the same manner as hereinbefore directed in respect to such property, Property must SEC. 291. In all cases of sale, as specified in the last secbe described so it canbe identi-tion, a particular description of the property shall be made fled. out, in writing, and filed with the court or officer making the order of sale, so that the owner may identify the same, if he shall claim the proceeds within the time limited by law for making his claim. Warrants need SEC. 292. Warrants authorized by law to be issued in criminot be sealed. nal cases, may be under the hand of the magistrate issuing the same, and shall be as valid and effectual in all respects as if sealed. Recognizances, SEC. 293. All recognizances required or authorized to be their form. taken in any criminal proceeding, in open court, by any court of record, shall be entered on the minutes of such court, and the substance thereof shall be read to tile person recognized; all other recognizances in any criminal matter or proceeding, or in any proceeding of a similar nature, shall be in writing, and shall be subscribed by the parties to be bound thereby. Authorityofoffi- SEC. 294. Every officer or other person, who shall have arcers to convey prisoners from rested, or have in his custody, under the authority of the laws one county to another. of this Territory, any prisoner who is, to be conveyed from one county to another, may carry such prisoner through such parts of any county as shall be in the ordinary route of travel, from the place where such prisoner shall have been arrested, to the place where he is to be conveyed and delivered, under the process or authority by which such prisoner shall have been arrested or is detained. Officer or person SEC. 295. The officer or person having such prisoner in havirge shll not be liable to arrest, on civing prisoner,ss, while not liable to ar- charge shall not be liable to arrest, on civil process, while on CH. 32.] CRIMINAL PROCEDURE. 279 his route; and he shall have the like power to require anyrest oncivil pro. person to aid in securing such prisoner, and re-taking him, if'tanPose com.he escapes, as sheriffs or other officers have in their own county; and a refusal or neglect to render such aid, shall be an offence punishable in the same manner as for disobedience to summons to assist in the execution of process. SEC. 296. The jailor of every county through which such Jailers of counties required to prisoner may be taken, is required to receive and safely keep receive prisoner. such prisoner in the jail of which he has charge, when thereto requested by the officer or person having lawful charge of such prisoner, and re-deliver him on demand of such officer or person. SEC. 297. Whenever the Governor of this Territory shallMode ofsecuring fugitives from demand a fugitive from justice, from the executive of anotheriustice. State or Territory, and shall have received notice that such fugitive will be surrendered, he shall issue his warrant, under the seal of the Territory, to some messenger, commanding him to receive such fugitive and convey him to the sheriff of the county in which the offence was committed, or is by law cognizable. SEC. 298. The expenses which may accrue under the lastaipenses, how section, being first ascertained to the satisfaction of the Governor, shall, on his certificate, be allowed and paid out of the Territorial treasury, as other demands against the Territory. SEC. 299. Whenever, in the opinion of the Court, it is Jury conducted to view a place. proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are tihus absent, no person other than the officer and a person appointed to show them the place, shall speak to them on any subject connected with the trial. SEC. 300. To make an arrest in criminal actions, the officer Oficer may break open doors may break open any outer or inner door, or window of a&c.,tomakearrest. dwelling house or other building, or any other enclosure, if, after notice of his office and purpose, he be refused admittance. SEC. 301. When the sheriff or other officer is guilty of cor- Corruption in ruption in selecting or impanneling a grand or traverse jury, electing jury. it is good cause of challenge to any of the jurors so selected or impanneled. SEC. 302.- Every judgment, commitment and process of the Judgments, &c.'istrict Celrt must be executed by the sheri~ff. sheriff. District Court must'be executed by the sheriff, sheriff. 280 CRIMINAL PROCEDURE. [CH. 32. Convict returned SEC. 303. When any convict in the Territorial prison is orfor new trial. dered to be returned to the county where he was convicted, to Duty ofkeeper await a new trial, the keeper of the Territorial prison must of prison. execute the order. The keeper is entitled to such fees therefor as are allowed to the sheriff for taking the convict to the Territorial prison. The term per- SEC. 304. When the term "person," or other word, is used to designate the party whose property is the subject of an offence, or against whom any act is done, with intent to defraud or injure, the term may be construed to include the United States, this Territory, or any other Territory or State, or any public or private corporation, as well as an individual. Definitions of SEC. 305. All definitions of terms in the act prescribing the terms adopted. rules of pleading and practice to civil actions, are adopted in this act, as far as the same are applicable. Money deposited SEC. 306. If money has been deposited instead of bail, and on bail given up. Conditions the defendant, at any time before the forfeiture thereof, shall give sufficient special bail, or shall surrender himself in open court, or to the sheriff, as provided in this act, or be in any manner legally discharged, the clerk shall order a return of the deposit. G tovernio ffer SEC. 307. If any person charged with, or convicted of a reward for fugi- felony, shall break prison, escape or flee from justice, and abtires. scond or secrete himself, the Governor of this Territory may, if he deems it expedient, offer any reward not exceeding three hundred dollars, for the apprehension and delivery of such person to the custody of such sheriff or other officer, as he may direct, Proceedings in SEC. 308. When any person shall apprehend and deliver euch cases. such fugitive to the proper sheriff or officer, he shall take his certificate of such delivery, and the Governor, on the production of such certificate, shall certify the amount of the claim to the auditor of public accounts. Governor's par- SEC. 309. In all cases in which the Governor is authorized don may be conditional. by law to grant pardons, he may grant the same on such conditions and under such restrictions as he may think proper. Further excep- SEC. 310. Where any indictment or prosecution shall be tions. quashed, set aside or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the ofience. CH. 32.] CRIMINAL PROCEDURE. 281 Of the- Costs in Criminal Cases. SEC, 311. The costs shall be paid by the county in which When costs paid by county. the offence is committed, in which the defendant shall be convicted, and shall be unable to pay them. SEc. 312. In all cases in which, if the defendant is acquitted, Costs upon acquittal, paid by the costs shall be paid by the county, unless the prosecutor county or prosecutor. shall be adjudged to pay them. SEC. 313. In all cases except a felony, when the indictment When indictment returned shall be returned "Not a true bill," the prosecutor shall be not atrue bil, costs by whom adjudged to pay the costs, unless the grand jury shall deter- paid. mine that the county, and not the prosecutor, shall pay the same. The opinion of a majority of the grand jury, certified by their foreman, stating who shall be liable for costs, shall be conclusive in the court rendering judgment in the same. SEC. 314. If any person, charged with an offence less than If person charged be discharged a felony, shall be discharged by the officer taking his exami-cby otffcer, prosenation, the costs shall be paid by the prosecutor, or person on costs, unless, &c. whose cath or information the same shall have been instituted, unless the officer shall certify that there was probable cause for the prosecution, in which event they shall be paid by the county in which the offence was committed. When the prosecutor is condemned to pay the costs, the officer tak- Yxeotion hto be ing the examination shall issue execution for them forthwith, if demanded. When the bill of costs shall be certified to the Proceedings when certified to tribunal transacting county business for payment, the sametribunal. shall be strictly examined by the tribunal, and no allowance shall be made but for such services as are expressly compensated by law. SEC. 315. If a person charged with a felony shall be dis- Person charged. with felony discharged by the officer taking his examination, or, if recognized harged by cxor committed for any such offence, and no indictment be pre- etc7mmitted, etc., costs to be ferred against him, the costs shall be paid by the countypaid by c~unty, which shall be certified for allowance in the manner hereinafter declared. SEC. 316. If, upon the trial of an indictment, whereon theIn certain cases, jury to detername of a prosecutor is endorsed as such, according to law, minewhenprosecutor or county the jury shall acquit the defendant, they shall determine and shall pay costs. return, together with their verdict, whether the prosecutor or the county shall pay the costs, and the court shall render judgment accordingly. 282 CRIMINAL PROCEDURE. [Cu. 32. All other case SEC. 317. In all cases not herein otherwise provided, the costs. costs shall be paid by the county in which the offence is comnmitted. No fees, except SEC. 318. Whenever any person shall be convicted of any for board, paid by Territoryetc' crime or misdemeanor, no costs incurred on his part, except on conviction. fees for board, shall be paid by the Territory or county. Subpoenas in SEC. 319. No subpoena for a witness, in any criminal case, criminal cases, how and when shall be issued, unless the name of such witness is endorsed issued. on the indictment, or the prosecuting attorney, or the prosecutor in the cause, or the defendant or his attorney, shall order Duty of clerk. the same; and no subpoena shall be issued for any witness unless the accused is in custody or on bail, or unless the clerk shall be satisfied that he will be in attendance on the court at the return term of the process; and all costs, unnecessarily incurred by a violation of this provision, shall be taxed against the clerk. Witnesr recog- SEC. 320. Whenever a witness in a criminal case is once naed, shall at- recognized or subpoenaed, he shall attend under the same until tend until discharged. he is discharged by the court, and no costs shall be allowed for any subsequent recognizance or subpoena against the same witness. To make allow- SEC. 321. Whenever the tribunal transacting county busiance for ironing prisoner, when. ness of any county in which the offender shall have committed any crime for which he is imprisoned, may be satisfied of the necessity of so doing, they may make an allowance for ironing the prisoner, and may allow a moderate compensation for medical services, fuel, bedding and menial attendance for any prisoner, which shall be paid out of the county treasury. Fines, penalties, SEC. 322. All fines and penalties imposed, and all forfeit&c., to be paid for benefit of ures incurred, in any county, shall be paid into the treasury county. thereof, for the benefit of said county. Clerk to deliver SEC. 323. The clerks of the several courts in this Territory, fee-bills to prosecuting attorney n cin sa be when,. a in which any criminal cause shall have been determined or continued generally, and in which the Territory or county shall be liable for the costs, shall, before the next term succeeding that during which the cause shall have been determined or continued, tax all costs which shall have accrued'in the same, and make out and deliver to the prosecuting attorney of said court, within the time aforesaid, a complete fee-bill, specifying each Failin to per- item of service and the fee therefor; and if any clerk fail to form such duty, treble amount ofperform the duties hereby enjoined on him, any person injured costs to be recoveredagainsthim by such neglect, may, by motion in the said court, giving two CH. 32.] CRIMINAL PROCEDURE. 283 days' notice thereof, which may be served on the clerk or his deputy, recover against the clerk treble the amount of costs to which he is entitled in the cause in which the clerk shall have failed to make out and deliver to the prosecuting attorney a fee-bill. SEC. 324. It shall be the duty of the judge and prosecuting Duty of judge and prosecuting attorney of every court in this Territory, having criminal juris-attorney to exdiction, to meet together: in term time, and examine strictly each bill of costs which shall have been delivered to the prosecuting attorney of said court, for allowance against the Territory or county, and ascertain, as far as practicable, whether the services have been rendered for which charges are made, and whether compensation is expressly given by law for the services charged, or whether greater charges are made than the law authorizes; and if they shall find that the said fee bill has been made out in conformity to law, and, if not, after correcting all errors therein, they shall certify to the clerk, of the tri- shall c,,tify to bunal transacting county business, the amount of costs due by ty tribunal the county on the said fee-bill, which shall be delivered to the clerk, to be collected without delay, and paid over to those entitled to the fees allowed; and any clerk failing to collect said fees, or having collected them and shall refuse to pay the same on demand, shall be subject to the penalties prescribed in the preceding section, to be recovered in like manner. SEC. 325. The original fee-bill, signed by the judge and Original fee-bill prosecuting attorney, a copy of which shall be certified to the by clerk. tribunal transacting county business, shall be carefully preserved by the clerk, in his office, and shall be evidence of the facts therein contained, without further proof. SEC. 326. The judge and prosecuting attorney shall be care- costs not to be taxed against ful and not tax the county with more than the costs of three Territory or county for more witnesses, to establish any" one fact. than three witnesses, when. Of the Custody and Management of the Estates of Convicts. SEG. 327. Whenever any person shall be imprisoned under a Coicnits for life sentence of imprisonment for life, his estate, property and ef- estat, how dis- posed of. fects shall be administered and disposed of, in all respects, as if he were naturally dead. SEC. 328. Whenever any person shall be imprisoned in the Convicts estates confided by penitentiary for a term less than his natural life, a trustee, to ort to atrustake charge of and manage his estate, may be appointed by the 284 CRIMINAL PROCEDURE. [CHr. 82. probate court of the county in which such convict last resided; or, if he have no known place of abode, then by the court of the county in which the conviction was had, on the application of any of his relatives, or any relative of his wife or any creditor. When appointed SEC. 329. Upon producing a copy of the sentence duly certified, and satisfactory evidence that such convict is actually imprisoned under such sentence, the court to which the application is made, may immediately appoint a fit person to be trustee of the estate of such convict. athnteedtgitake SEC. 330. Every such trustee, before entering upon the dubond. ties of his office, shall take an oath faithfully to discharge the duties thereof, and give bond in such sum and with such security as the court shall approve, conditioned that he will manage and administer the estate and effects committed to his charge, to the best advantage, according to law, and will faithfully do and perform all; such other acts, matters and things touching his trust, as may be prescribed by law, or enjoined on him by the order, sentence or decree of any court of competent jurisdiction. Trustee under SEC. 331. The court appointing such trustee shall have a control of court. superintending control over him, and may, at any time, compel him to account, may remove him from his trust for misconduct, and may appoint another person in his stead whenever it may become necessary. Convict's estate SEC. 332. Upon taking the oath and filing the bond required vested in trustee. by this act, all the estate, property, rights in action and effects of such imprisoned convict shall be vested in such trustee, in trust, for the benefit of creditors and others interested therein. Powers and du- SEC. 333.: Such trustee may sue for and recover, in his own ties of trustee. name, any of the estate, property or effects belonging to, and all debts and sums of money due or to become due, to such imprisoned convict, and may prosecute and defend all actions commenced by or against such convict. What he may do SEC. 334. The probate court appointing any such trustee under direction of court. may, at any time, order the sale, lease or mortgage of real estate, whenever the same shall be necessary for the payment of debts or the support or maintenance of the family or the education of the children of such convict, and in every such order shall direct the manner and terms of sale or other dispositions to be made. Further powers; SEC. 335. The trustee shall settle matters and accounts be CH. 32.] CRIMINAL PROCEDURE. 286 tween such imprisoned convict and his creditors, and may examine witnesses, touching such matters and accounts, upon oath, to be administered by him. He may, under the direction of the court, compound with any person indebted to such imprisoned convict, and, thereupon, discharge all demands against such person. SEc. 336. Such trustee may, also, under the direction of the Furthert power court, redeem all mortgages and conditional contracts, and all direction of pledges of personal property, and satisfy judgments and decrees which may be an incumbrance on any property ordered to be sold, or he may sell such property, subject to such mortgages, pledges or incumbrances, as the court shall direct. SEC. 337. The trustee, immediately upon his appointment, Trustee togive notice; its con. shall give notice thereof, and therein shall require: First, All tents. persons indebted to such imprisoned convict, by a day and at a place therein to be specified, to render an account of all debts and sums of money by them owing respectively to such trustee, and to pay the same: Second, All persons having in their possession any property and effects of such convict, to deliver the same to the trustee so appointed: Third, All creditors of such convict to deliver their respective accounts and demands to the trustee by a day, to be therein specified, not less than two months from the publication of such notice. SEc. 338. Such notice shall be published for at least threeWhere and how published. weeks, in some newspaper printed in or nearest to the county in which the appointment was made. SEc. 339. Notwithstanding such notice, the trustee may sue suche oti not for and recover any property or effects of the convict, and any of action. debts due to him, at any time before the day appointed for the delivery or payment thereof. SEc. 340. The trustee shall, as speedily as possible, convert Duties of the trustees. into money so much of the estate, real and personal, as shall be necessary for the purposes of the trust. He shall keep regular accounts of all money received, and other matters touching his trust, to which creditors, and others interested, shall be at liberty, at reasonable times, to have recourse. SEC. 341. The trustee shall, annually, at such term as the To make anual - - Ireport; the court court shall direct, make a full report of his proceedings to the todeclae annual court, and a full statement of his accounts, and the court shall thereupon declare the dividends to be made among the creditors. SEC, 342. Every person to whom such convict shall be in- claidme arnot 19 286 CRIMINAL PROCE.DURE. [CH. 32. yet due, may re- debted for a valuable consideration, for a sum of money not ceive their share on conditions. due but payable afterwards, shall receive his proportion, with other creditors, after deducting a rebate of legal interest upon the sum to be distributed for the time unexpired of such credit. Set-off allowedp SEc. 343. Where there are mutual credits between the conwhen. vict and any person, they may be set off against each other, but no set-off shall be allowed of any claim or debt which shall have been purchased by or transferred to the person claiming its allowance, after the conviction of the debtor. Money to be re- SEC. 344. If, at the time a dividend is made, a suit is pendserved to meet contingent de- ing to establish any demand, the proportion which would be alroands, lotted to such demand if established, shall be reserved, with the necessary costs and expenses, to be applied according to the event of such suit. Notice of di-i- SEC. 345. When any dividend shall be ordered by the court, dends, when and how published. the trustee shall immediately cause a notice thereof to be published, as before directed in relation to notices of their appointment, and shall make payments according to the order of the court. For what pur- SEC. 346. The court shall have power, from time to time, to pose effects may, imder the direc- make and cause the trustee to execute orders for the application of the court, be applied. tion of any portion of the proceeds of estates in their hands, for the support and maintenance of the family of such convict and the education of his children, and to set apart and reserve to the use of such family any property, real or personal, when it may be done without prejudice to the rights of creditors. Upon the dis- SEC. 347. When any such imprisoned convict shall be law' charge of the tonvict, his ef- fully discharged from his imprisonment, the trustee so appointed fects to be delivered up. shall deliver up to him all his estate, real and personal, and all money belonging to him, remaining in his hands, after deducting a sufficient sum to satisfy expenses which have been incurred in the execution of his trust and his lawful commission. In case of hi SEC. 348. In case of the death of such convict, the trustee death, how to account. shall, in like manner, account with the personal representatives, and deliver to them the property and effects remaining. AOUthority onfrc' SEC. 349. The transfer and settlement required to be made the order, by either of the two preceding sections, may be enforced by the court in a summary manner, on the application of the party interested. Compoensation SEc. 350. The trustee shall be allowed, as a full compensatf trustees. a commission at the rate of five per cent tion for his services, a commission at the rate of five per cent. CH. 33.] CRIMES AND PUNISHMENTS. 287 on the whole sum which shall have come into his hands by virtue of his trust. SEc. 351. This act to take effect and be in force from and after the first day of June next. Approved February 9, 1859. CHAPTER XXXIIJL (Acts of 1859. Chapter XXVIII.) AN ACT Regulating Crimes and Punishments of Crimes against the persons of Individuals. Be it enacted by the Governor and Legislative Assembly of the Terrritory of Kansas: SECTION 1. Every murder which shall be committed by means Murder in the of poison or by lying in wait, or by any other kind of willful, first degree. deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson,'ape, robbery, burglary or other felony, shall be deemed murder in the first degree. SEC. 2. Every murder which shall be committed purposely Murderin the second degree. and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree. SEC. 3. Persons convicted of murder in the first degree shall rnihminth or suffer death. Those convicted of murder in the second degree fist and second degrees. shall be punished by confinement and hard labor for not less than ten years. SEC. 4. Homicide shall be deemed justifiable when committed Justifiable homicide. by any person in either of the following cases: First, In resisting any attempt to murder such person, or to commit any felony upon him or her, or in any dwelling house in which such person shall be: or, Second, When committed in the lawful defence of such person, or of his or her husband or wife, parent, child, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be immediate danger of such design being accomplished: or, Third, When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the lpeace. 288 CRIMEs ANDr PUiNISHMENTS~ [eH. 3f. Excuamble hom- SEC. 5. Homicide shall be deemed excusable when committed. icide. by accident or misfortune in either of the following cases: First, In lawfully correcting a child, apprentice, servant, or in doing any other lawful act by lawful means, with usual ancd ordinary caution, and without unlawful intent: or, Second, In the heat of passion, upon any sudden or sufficient provocation, or upon sudden combat without any undue advantage being taken, and without any dangerous weapon being used, and notdone in a cruel and unusual manner. Verdictof not SEC. 6. Whenever it shall appear to any jury, upon the trial' guilty directed in case of justi-of any person indicted for murder or manslaughter, that the fiable or excusa- a ble homicide. alleged homicide was committed under circumstances or in a case where, by any statute or the common law, such homicide was justifiable or excusable, the jury shall return a general verdict of not guilty. Killing withott SEC. 7. The killing of a human being, without a design to design to effect death, &c., man- effect death, by the act, procurement or culpablenegligence of slaughter in the a first degree. another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.. Assisting anoth- SEC. 8. Every person deliberately assisting another in the er -in self-murder manslaugh- commission of self-murder, shall be deemed guilty of manter in first dedree. slaughter in the first degree. Killing of un- SEc. 9. The wilful killing of any unborn quick child, by any born quick child manslaughter inn injury to the mother of such child, which would be murder if it the first degree. resulted in the death of such mother, shall be deemed manslaughter in the first degree. Administering SEC. 10. Every person who shall administer to any woman, medicine or us- 9 ing instrument pregnant with a quick child, any medicine, drug or substance, to destroy quick child man- whatsoever, or shall use or employ any instrument or other slaughter in the second degree. means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by a physician to, be necessary for that purpose, shall be guilty of manslaughter in the second degree. Killing in heat SEC. 11. The killing of a human being, without a design to of passion, with-. out design, &c. effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree. SEC. 12. Every person who shall unnecessarily kill another, ithu. 38.] CRIMES AND PUNISHMENTS. 289 either while resisting an attempt by such other person to cobrn-ll:ng perllon mit any felony, or do any other unlawful act, after such attempt'hle resitiog - shall ha-ve failed, shall be deemed guilty of manslaughter in the it felony, etc. shall have manslaughter in second degree. second degree. SEC. 13. The killing of another, in the heat of passion, with-Killing in heat of passion, with-lt a design to effect death, by a dangerous weapon, in any~utdesignw'etc's case except wherein the killing of another is justifiable or aex- tshairdegr ee. cusable, shall be deemed manslaughter in the third degree. K illing While SEC. 14. The voluntary killing of a human being, by the act, person is committing trespass procurement or'culpable negligence of another, whilst such&c.,tmanaslaughter in third deother person is engaged in the commission of a trespass, orgree. other injury to private rights or property, or engaged in any attempt to commit such injury, shall be deemed manslaughter in the third degree. Own of animl SEC. 15. If the owner of a mischievous animal, knowing its which kills a person, &c., propensities, unlawfully suffer it to go at large, or shall keep it guiltyof man without ordinary care, and such animal, while so at large orthird degree. not confined, kills any human being, who shall have taken the precautions, which the circumstances may permit, to avoid such animal, such owner shall be deemed guilty of manslaughter in the third degree. Perrons ngaSEC. 16. Any person navigating any boat or vessel for gain, tyngfmneselaguuil who shall willfully or negligently receive so many passengers, or tgeer tlrad desuch quantity of other lading, that, by means thereof, such boat or vessel shall sink or overset, and thereby any human being shall be drowned, or otherwise killed, such person shall be deemed guilty of manslaughter in the third degree. If captain, engiSEC. 17. If any captain or other person having charge of any neer, c., of steamboat, steamboat used for the conveyance of passengers, or if the en- through ignorance or neglect, gineer or other person having charge of the boiler of such boat, create steam,eac, or of any apparatus for the generation of steam, shall, from il killed, guilty of manslaughter ignorance or gross neglect, or for the purpose of excelling any in third degree. other boat in speed, create or allow to be created such an undue quantity of steam as to break or burst the boiler, or other apparatus in which it shall be generated, or any apparatus or machinery connected therewith, by which bursting or breaking any person shall be killed, every such captain, engineer or other person shall be deemed guilty of manslaughter in the third degree. SEC. 18. Any engineer, having charge of a steamboat engine, nngineer runwho shall, willfully or negligently, run said engine when it is when not in good repair, not in good repair, or any of the machinery connected there- punishment for. with is in a condition from which explosions or breakages may 290 CRIMES AND PUNISHMENTS. [Ci. 33. be reasonably expected, or shall, willfully or negligently, faiH to report to the master or owner, the condition of such engine, or other machinery therewith connected, so being out of repair, or in a condition unsafe for navigation, shall be fined in a sum not less than one hundred nor more than one thousand dollarso Mater ofsteam: SEC. 19. If any master or owner of a steamboat shall make, boat running when engine or or cause to be made, a trip with such boat, after the engine or machinery out of repeair, un- machinery connected therewith shall have been reported to him ishment for. as unsafe or out of repair, according to the provisions of the preceding sections, without making adequate repairs; or if any engineer shall willfully or negligently take charge of and run an engine on such boat, knowing it has been so reported unfit or out of repair, unless, in either case, the engineer last aforesaid has followed the business of steamboat engineering for five years, and, upon examination of such engine and machinery, shall report, upon oath, in writing, that said engine and machinery are in good order, such master, owner or engineer shall be fined in a sum not less than five hundred dollars; and, if any accident happen, by which any person is killed, shall be deemed guilty of manslaughter in the third degree. Manslaughter in SEC. 20. If any physician, while in a state of intoxicationi shall, without a design to effect death, administer any potion, drug or medicine, or do any other act to another person which shall produce the death of such other, he shall be deemed guilty of manslaughter in the third degree. Manslaughterein SEC. 21. The involuntary killing of another, by a weapon, or by means neither cruel or unusual, in the heat of passion, in any cases other than justifiable homicide, shall be deemed manslaughter in the fourth degree. anslaughter eein SEC. 22. Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree. Punishment for SEC. 23. Persons convicted of manslaughter in the first and manslaughter in first and setond second degrees, shall be punished as follows: First, If in the degree. first degree, by confinement and hard labor for a term not less than five years nor more than twenty-one years: Second, If in the second degree, by confinement and hard labor for a term not less than three nor more than five years. SEC. 24. Every person convicted of manslaughter in the third Ci. 33.] CRIMaES AND PUNISHMENTS. 291 degree, shall be punished by confinement and hard labor for a Puanihmeghtt fo term not exceeding three years, or by imprisonment in the third degree. county jail, not less than six months, or by fine not less than five hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in the county jail not less than three months. SEC. 25. Every person convicted of manslaughter in the Punaishment fo manslaughter in fourth degree, shall be punished by confinement and hard labor fourth degree. for two years, or by imprisonment in the county jail not less than six months, or by fine, not less than five hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in the county jail not less than three months. SEC. 26. Every person who shall be convicted of rape, either Rape, its pu a by carnally and unlawfully knowing any female child under the age of ten years, or by forcibly ravishing any woman of the age of ten years or upwards, shall be punished by confinement and hard labor, not less than five years nor more than twenty-one years. SEC. 27. Every person who shall have carnal knowledge of Carnallyknow any woman above the age of ten years, without her consent, by over ten year,, administering to her any substance or liquid or any potion, by inhalation or otherwise, which shall produce such stupor, or such imbecility of mind or weakness of body as to prevent effectual resistance, shall, upon conviction, be adjudged guilty of rape, and be punished as in the last section specified. SEC. 28. Every person who shall take any woman unlaw- Compelling a woman to marry fully, against her will, and by force, menace or duress, compel &c. her to marry him, or to marry any other person, or to be defiled, upon conviction thereof, shall be punished by confinement and hard labor, for a term of not less than five years nor more than twenty-one years. SEC. 29. Every person who shall take any woman unlaw- Tki,,nanr man with intent fully, against her will, with intent to compel her by force, to compel lhr to marry, &C. menace, or duress to marry him, or to marry any other person, or to be defiled, upon conviction thereof, shall be punished by confinement and hard labor not less than five years, nor more than twenty one years. SEC. 30. Every person; who shall take away any female, Taking a fem,'ale ~under eighteen under the age of eighteen years, from her father, mother, yearfrmpa""'' guardian, or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall, upon conviction thereof; be punished 292 CRIMES AND PUNISHMENTS. [C". 33. by confinement and hard labor for a term not exceeding five, years. pnisme &ct or. SEa. 31. Every person who shall, on purpose and of malice aforethought, cut or bite off the ear, or cut or disable the tongue, put out an eye, or slit, cut, or bite off the nose or lip, or shall cut off or disable any limb or member of any person, with intent to kill, maim, or disfigure such person, shall, on conviction, be punished by confinement and hard labor for a term not less than five nor exceeding ten years. Assault with SEC. 32. Every person who shall, on purpose and of malice deadly weapon, p unishment for. aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish, or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years. Administering SEC. 33. Every person who shall administer to another, poison with intent to kill, pun- directly or indirectly, ally poison, or any poisonous substance ishment for. or liquid, or shall mingle poison with any food, drink, or medicine, with intent to kill such person, which shall be actually taken by such person or another, whereof death shall not ensue, shall be punished by confinement and hard labor not less than five nor more than ten years. withfooddrisk SEC. 34. Every person who shall mingle any poison with any food, drink, or medicine, with intent to kill or injure any human being, or who shall willfully poison any spring, well, or reservoir of water, shall, upon conviction, be punished by confinement and hard labor not less than five nor more than ten years. -Asault with in- SECo 35. Every person who shall be convicted of an assault, -,ct to commit a otl)5y. with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished by confinement and hard labor not exceeding five years, or by imprisonBment in the county jail not less than six months, or by fine not less than five hundred dollars, or by both a fine not less than one hundred dollars, and imprisonment in the county jail not less than six months. l'ersons by SEC. 36. If any person shall be maimed, wounded, or diswhose acts gre t harnp is done, figured, or receive great bodily harm, or his life be endangered ow he a culpable unished,r in by the act, procurement, or culpable negligence of another, in CH. 33.] CRIMES AND PUNISHMENTS. 293 cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement, or negligence such injury or danger of life shall be occasioned, shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months, or by fine not less than five hundred dollars, or by both a fine not less than one hundred dollars, and imprisonment in a county jail not less than three months. SEc. 37. Every physician or other person who shall will- Medicines orinstruments usfed fully administer to any pregnant woman any medicine, drug, to procure aboror substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon conviction; be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment. SEC. 38. Every person who shall, without lawful authority, Kidnapping, &c, punishment for. forcibly seize and confine, or shall inveigle, decoy, or kidnap any other person, with intent: First, To cause such person to be sent or taken out of the Territory, or to be secretly confined within the same against his will; or, Second, To cause such person to be sold as a slave, or in any way held to service against his will, shall, upon conviction, be punished by confinement and hard labor not less than five nor more than ten years. SEC. 39. Every person who shall kidnap, or forcibly or Kidnapping, &, punishment for. fraudulently carry or decoy out of this Territory, or shall sell, or in any manner transfer, as a slave or servant, any free person, or person entitled to freedom, so taken, decoyed, or kidnapped, knowing such person to be free, or entitled to freedom, shall, upon conviction, be punished by confinement and hard labor fobr a term not less than five nor more than ten years. SEC. 40. Every offence prohibited in either of the last two Where these offences may be sections, may be tried in the county through which the person tried. so seized, inveigled, decoyed, kidnapped, or sold shall have been taken, carried, or brought. SEC. 41. Every person who shall maliciously, forcibly, or Decoying child under 12 years, 294 CRIMES AND PUNISHM3ENTS. [CH. 33. with intent to fraudulently lead, take, or carry away, or decoy or entice conceal, etc.,to. punishment for; away any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, shall, upon conviction, be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months, or by fine not less than five hundred dollars. Exposing child with intent to SEC, 42. If any father or mother of any child, or any abandon, person to whom such child shall have been confided, shall expose such child in a street, field, or other place, with intent wholly to abandon it, he or she shall, upon conviction, be punished by confinement and hard labor not exceeding five years, or in the county jail not less than six months. firson in thdegree. SEC. 43. Every person who shall set fire to or burn, in the night time, any dwelling-house in which there shall be at the time some human being, or who shall willfully set fire to or burn, in the night time, any boat or vessel in which there shall be at the time some human being, shall, upon conviction, be adjudged guilty of arson in the first degree. What shat be- SEC. 44. Every house, prison, jail, or other edifice, which deemed a dwelling house, shall have been usually occupied by persons lodging therein at night, shall be deemed a dwelling-house of any person having charge thereof, or so lodging therein; but no warehouse, barn, shed, or other out-house, shall be deemed a dwelling-house, or part of a dwelling-house, within the meaning of this or the last section, unless the same be joined to, or immediately connected with, and part of, a dwelling-house. Setting fire to SEC. 45. Every person who shall willfully set fire to or arson in the sec- burn, in the day time, any inhabited dwelling-house, boat, or ond degree. vessel, which, if done in the night time, would be arson in the first degree, shall, upon conviction, be adjudged guilty of arson in the second degree. warehouse, &C, SEC. 46. Every person who shall willfully set fire to or arson in the sec- burn in the night time, any shop, warehouse, office, storehouse, or other building, not being the subject of arson in the first degree, but adjoining to, or within the curtilage, of any inhabited dwelling-house, so that such dwelling-house shall be endangered by such firing, shall, upon conviction, be adjudged guilty of arson in the second degree. Settisg fire to or SEC. 47. Every person who shall willfully set fire to or burning buildburn, in the night time, any building in which shall be kept Cu. 33.] CRIMES AND PUNISHMENTS. 295 or deposited at the time any records, or the papers of any puglic whco public officer, shall, on conviction, be adjudged guilty of arson are kept, &c. in the second degree. SEC. 48. Every person who shall willfully set fire to or Arson in the burn, in the day time, any shop, warehouse, or other building, which, if done in the night time, would be arson in the second degree, shall, on conviction, be adjudged guilty of arson in the third degree. SEC. 49. Every person who shall willfully set fire to or Setting firetoor burning barn or burn, in the night time, any house, building, barn, stabl le, tbletc.~', in the night time, boat, or vessel of another, or any house of public worship, third degrie college, academy, or school-house, or- building used as such, or any public building belonging to the United States or this Territory, or to any county, city, town, or village, not the subject of arson in the first or sccoed degree, shall, on conviction, be adjudged guilty of arson in the third degree. SEC. 50. Every person who shall willfully set fire to or Setting firet~o or burn, in the night time, any brewery, distillery, grist-mill, iny, etct,ladrd paper-mill, fulling-mill, saw-mill, carding machine, or othergree' machinery for manufacturing purposes, or any building containing the same, or erected or used as a manufactory, shall, on conviction, be adjudged guilty of arson in the third degree. SEC. 51. Every person who shall burn any building, boat, Settinngfire to or'n Iburning vessel, or vessel, or any goods, wares, or merchandise, or other go~~d, etc., insured, arson in chattels, which shall, at the time, be insured against loss or thethirddegree. damage by fire, with intent to defraud or prejudice the insurer, whether the same be the property of such person or any other, shall be, upon conviction, adjudged guilty of arson in the third degree. SEc. 52. Every person who shall, in the day time, willfully Arson in the fourth degree. set fire to or burn any dwelling-house or other building, or any machine, or any boat or vessel, which, if done in the night time, would be arson in the third degree, shall, upon conviction, be adjudged guilty of arson in the fourth degree. SEC. 53. Every person who shall, in the day or night time, Setting fire to goods, wares,etc, willfully set fire to or burn any goods, wares, merchandise, or in the day or night time, deother chattels of another, not the subject of arson in the third dared arson in the fourth dedegree, or any stack of grain, of any kind, belonging to an- gree, when. other, or any grain, grass, or herbage growing or standing in the field, or any nursery or orchard of fruit trees, or any fence belonging to another, or any toll-bridge or other public bridge, 296 CRIMES AND PUNISHMENTS. [CH. 33. shall, on conviction, be adjudged guilty of arson in the fourth degree. Pronishmet of SEC. 54. Every person who shall be convicted of any degree of arson, shall be punished, by confinement to hard labor, as follows: First, In the first degree, by confinement to hard labor not less than ten years, nor more than twenty-one years. Second, In the second degree, by confinement to hard labor not less than seven nor exceeding ten years. Third, In the third degree, by confinement to hard labor not less than five nor more than seven years. Fourth, In the fourth degree, by confinement to hard labor not more than four years, or by imprisonment in the county jail not less than six months. Burglary in the SEC. 55. Every person who shall be convicted of breaking first degree. into and entering, in the night time, the dwelling-house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either: First, By forcibly bursting or breaking the wall, or any outer door, window, or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, Second, By breaking, in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or, Third, By unlocking an outer door, by means of false keys, or by picking the lock thereof; shall be adjudged guilty of burglary in the first degree. Breaking dwell- SEC. 56. Every person who shall be convicted of breaking ings, etc.,in day time, etc., burg- into a dwelling-house, in the day time, under such circumlary in the second degree. stances as would have constituted the crime of burglary in the first degree if committed in the night time, shall be deemed guilty of burglary in the second degree. Breaking dwell- SEC. 57. Every person who shall be convicted of breaking ing house in the night time, etc., into a dwelling-house, in the night time, with intent to commit burglary in the second degree. a felony or any larceny, but under such circumstances as shall not constitute the offence of burglary in the first degree, shall be deemed guilty of burglary in the second degree. Entering dwell- SEC. 58. Every person who shall enter into the dwellinging house by day or night, with house of another, by day or night, in such manner as not to intent, etc., and shall commit constitute any burglary as hereinbefore specified, with intent felony, burglary in the second de- to commit a felony or any larceny, or being in the dwellinggree.' house of another, shall commit a felony or any larceny, and shall, in the night time, break any outer door, window, or CH. 33.] CRIMES AND PUNISHMENTS. 297 shutter of a window, or any other part of said house, to get out of the same, shall be adjudged guilty of burglary in the second degree. SEC. 59. Every person who, having entered the dwelling- Brealkin inner door with intent house of another in the night time, through an open outer door to commita felony, burglary in or window, or other aperture not made by such person, shall the seconddegree, break an inner door of the same house -with intent to commit any felony or larceny, shall be adjudged guilty of burglary in the second degree. SEC. 60. Every person who, being admitted into any dwell-Person, etc., breaking inner ing-house with the consent of the occupant thereof, or who, be- door, with intent, etc., burging lawfully in such house, shall in the night time break anlargy in second degree. inner door with intent to commit a felony or larceny, shall be adjudged guilty of burglary in the second degree. SEC. 61. No building-shall be deemed a dwelling-house orwhat deemeda dwelling house any part of a dwelling-house, within the meaning of the fore- or part thereof, going provisions, unless the same be joined to, immediately connected with and a part of a dwelling-house. SEC. 62. Every person who shall be convicted of breaking Persorlso, n.vicand entering in the night time: First, any building within the fences declared guilty of burglar curtilage of a dwelling-house, but not forming a part thereof: ry in the second degree. or, Second, any shop, store, booth, tent, warehouse or other building, or any boat or vessel, in which there shall be at the time, some human being, or any goods, wares or merchandise, or other valuable thing kept or deposited, with intent to steal or commit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree. SEC. 63. Every person who shall be convicted of breakingBurglaryin third degree. and entering, in the day time, any dwelling-house or other building, or any shop, store, booth, tent, boat, or vessel, under such circumstances as would have constituted the offence of burglary in the second degree if committed in the night time, shall be deemed guilty of burglary in the third degree. SEC. 64. The breaking out of any dwelling-house, or the Breaking hout o breaking of the inner door thereof, by any person being there- etc., ort deemed burglary, when. in, shall not be deemed such breaking a dwelling-house as to constitute burglary, in any case other than such as are herein particularly specified. SEC. 65. Every person who shall be convicted of burglary, Punishment for shall be punished by confinement and hard labor, if in the first degree, not less than ten years nor more than twenty-one years; if in the second Aegree, not less than five nor more than ten years; if in the third degree, not exceeding five years. 298 CRIMES AND PUNISHMENTS. [Ca. 33. Burglary and SEC. 66. If any person, in committing burglary, shall also committed at commit a larceny, he may be prosecuted for both offences in same time, how punished. the same count, or in separate counts of the same indictment and on conviction of such burglary and larceny, shall be punished by confinement and hard:labor, in addition to the punishment hereinbefore prescribed for the burglary, not exceeding five years. Robbery in first SEC. 67. Every person who shall be convicted of feloniously degree. taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree. Robbery in eec- SEC. 68. Every person who shall be convicted of feloniously end degree. taking the personal property of another in his presence, or from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property, or to the person of any relative or member of his family, threatened to be inflicted at some different time, which fear shall have been produced by the threats of the person so receiving or taking such property, shall be adjudged guilty of robbery in the second degree. Robbery inthird SEC. 69. If any person shall, either verbally or by a written or printed communication, accuse or threaten to accuse another of any felony, or threaten to do any injury to the person or property of any one, with a view or intent to extort or gain any money or property of any description, belonging to another, and shall, by intimidating him with said accusation or threat, extort or gain from him any money or property, every such offender shall be deemed guilty of robbery in the third degree. Ponimbentfor SEC. 70. Every person convicted of robbery shall be punished by confinement and hard labor, if in the first degree, not less than ten years nor more than twenty-one years; if in the second degree, not exceeding ten nor less than five years; if in the third degree, not exceeding five years. Threatening let- SEC. 71. Every person who shall knowingly send or deliver, view to extort money, deemed or shall make, and, for the purpose of being delivered or sent, an attempt to rob, how pun- shall part with the possession of any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name or with any letter, mark or other designation, threatenening therein to accuse any person of a crime, or to do any injury to the person or property of any one, with a view or CH. 33.] CRIMES AND PUNISHMENTS. 299 intent to extort or gain any money or property, of any description, belonging to, another, shall, on conviction, be adjudged guilty of an attempt to rob, and shall be punished by confinement and hard labor, not exceeding five years. SEC. 72. Every person who shall be convicted of feloniously Grand arceny stealing, taking and carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever, of the value of twenty dollars or more, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog, belonging to another, shall be deemed guilty of grand larceny. SEC. 73. Persons convicted of grand larceny shall be pun-Punishment for grand larceny. ished in the following cases, as follows: First, for stealing a horse, mare, gelding, colt, filly, mule or ass, by confinement and hard labor, not exceeding seven years: Second, in all cases of grand larceny, except as provided in the two succeeding sections, by confinement and hard labor, not exceeding five years. SEC. 74. Every person who shall steal, take, and carry away Petty larceny, any money or personal property or effects of another, underpunishment for. the value of twenty dollars, (not being the subject of grand larceny, without regard to value,) shall be deemed guilty of petty larceny, and, on conviction, shall be punished by imrprisonment in a county jail, not exceeding one year, or by fine, not exceeding one hundred dollars, or by both such fine and imprisonment. SEC. 75. If any larceny be committed in a dwelling-house or Larcesny In a dwelling house in any boat or vessel, or by stealing from the person in the owpunished. night time, the offender may be punished by confinement and hard labor, not exceeding seven years. SEC. 76. If the property stolen consists of any bond, cove- what deemed the value of cernant, note, bill of exchange, draft, order or receipt, or any tain paper secuother evidence of debt, or of any public security issued by the United States or this Territory, or of any instrument whereby any demand, right or obligation shall be assigned, transferred, created, increased, released, extinguished or diminished, the money due thereon or secured thereby, and remaining unsatisfied, which, in any event or contingency, might be collected thereon, or the value of the property transferred or affected, as the case may be, shall be deemed prima facie evidence of the value of the article stolen. SEC. 77. If any person mark or brand, or alter the mark or Mrking, alter. brand of any animal, the subject of larceny, being the property ofterig the rk another with intent to steal or convert the samekilling tto hiseown u another, with intent to steal or convert the same to his own use 300 CRIMES AND PUNISHMENTS. [Cu. 33. animal of anoth- the carcass or skin, or any part of the animal so killed, he shall er deemed larceny, how pun- be adjudged guilty of larceny, and punished in the same manner ished. dg as if he had feloniously stolen such animal. Stealing or em- SEC. 78. If any person steal or embezzle any will of real or bezzling will o ry other instru- personal property, or any deed or other instrument of writing, ment affecoting o property grandbeing or purporting to be the act of another, by which any larceny, how punished. right or interest in real or personal property shall be or purport to be assured, transferred or conveyed, or in any way changed or affected, shall be adjudged guilty of grand larceny, without reference to the value of the instrument so stolen or embezzled, and shall be punished by confinement and hard labor not exceeding five years, or in the county jail, not less than six months, or by fine, not exceeding one thousand dollars or less than five hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in the county jail, not less than three months. tealing or em-rd SEC. 79. Whoever shall be convicted of having stolen and or othfiledoi- carried away or embezzled any record, paper or proceeding of proper office grand larceny, a court of justice, filed or deposited with any clerk or officer of how punished. such court, or any paper, document or record, filed or deposited in any public office or with any judicial officer, shall be adjudged guilty of grand larceny, without reference to the value of the record, paper, document or proceeding so stolen or embezzled, and shall be punished by confinement and hard labor, not exceeding five years, or in a county jail, not.less than six months, or by fine, not less than five hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in the county jail, not less than three months.. 80. Every officers having SEC. 80. Every officer or other person having the custody of custody of padpraitn..grdt any record, paper, document or proceeding, or any will, deed, samei how un- or other writing, specified in either of the two last sections,:ished. who shall fraudulently take away, withdraw or destroy, any such record, paper, document, proceeding, will, deed or instrument of writing, filed or deposited with him or left in his custody, shall, upon conviction, be punished by confinement and hard labor, not exceeding five years. Severieg pro- SEC. 81. If any person shall sever from the soil of another, duce, etc., from rthesoilnd co-neany produce growing thereon, of the value of more than five verting to one's 0 larceny. declared dollars, or shall sever, from any building or from any gate fence or other railing or enclosure, or any part thereof, or any material of which it is composed, of the like value, and shall take and convert the same to his own use, with the intent to CH. 33.] CRIMES AND PUNISHMENTS. 301 steal the same, he shall be deemed guilty of larceny in the same manner and of the same degree, as if the articles so taken had been severed at some different and previous time. SEC. 82. If any clerk, apprentice or servant of any private Embezzling by clerks, servants, person or of any copartnership, (except clerks, apprentices and agents, &C., how servants within the age of sixteen years,) or if any officer, agent, clerk or servant of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to embezzle or convert to his own use, without the assent of his master or employer, any money, goods, rights in action, or valuable security or effects whatsoever, belonging to any person, which shall have come into his possession or under his care, by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted. SEC. 83. Every embezzlement of any evidence of debt, nego- Embezzlement of evidence of tiable by delivery only, and actually executed by the master or bydebli,egoiable employer of such clerk, agent, officer, or servant, but not de- punishment livered or issued as a valid instrument, shall be deemed an offence within the meaning of the last preceding section, and punished accordingly. SEC. 84. If any carrier or other bailee shall embezzle or con- Embezzrilement, o vert to his own use, or make way with or secrete, with intent how punished. to embezzle or convert to his own use, any money, goods, rights in action, property or valuable security, or other effects, which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he shall, upon conviction, be adjudged guilty of larceny, and punished in the manner prescribed by law for stealing property of the nature or value of the articles so embezzled, taken or secreted. SEc. 85. If any tenant or lodger shall take away, with intent,Embenazlemnt to embezzle, steal or purloin, any bedding, furniture, goods or ish'd.owpsn chattels, or fixture, which, by contract, was let to him, to be used by him in or with any house, apartment, room or lodging, whether the contract for letting shall have been made by such person or by any person on his behalf, he shall be adjudged guilty of larceny, and punished in the same manner prescribed 20 302 CRIMES AND PUNISHMENTS. [CH. 33. by law for stealing property of the value of the articles so stolen, purloined or embezzled, Buying or re. SEC. 86. Every person who shall buy or in any way receive ceiving stolen property, know- any goods, money, rights in action, personal property, or any ingly, how punished. valuable security or effects whatsoever, that shall have been embezzled, taken or secreted, contrary to the provisions of the last four sections, or that shall have been stolen from another, knowing the same to have been so embezzled, taken or secreted, or stolen, shall, upon conviction, be punished in the same manner and to the same extent as for the stealing the money, property or other thing so bought or received. conviction of SEC. 87. In any indictment, for any offence specified in the Principal not lecessary insaid last section, it shall not be necessary to aver, nor on the trial offence. thereof to prove, that the principal who embezzled, took, secreted or stole such property, has been convicted. Obtaining mon- SEC. 88. Every person who, with intent to cheat or defiaud ey or property by false tokens another, shall, designedly, by color of any false token or wrior pretences; ting, or by any other false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects whatsoever, upon conviction thereofi Punishment. shall be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained. Punishment in- SEc. 89. If the false token, by which any signature, money, creased when the fal tokn property, right in action or other thing shall be obtained, as is a promissory ot i note, purporting specified in the last section, be a promissory note, bill of exto be issued by a scin b batenkcti ex- change, check or evidence of debt, purporting to have been made or issued by or under authority of any banking company or corporation not in existence, the person convicted of such cheat may be punished by confinement and hard labor not exceeding seven years. Defendalt in in- SEC. 90. If, upon the trial of any person indicted for any dictment under two last sections offence prohibited in the last two sections, it shall be proved may be convicted of larceny. that he obtained the property or other thing in question, in such manner as to amount in law to a larceny, he shall not, by reason thereof, be entitled to an acquittal, but he shall be convicted and punished as if the offence had been proved as charged. Money obtained SEC. 91. Every person who shall falsely represent or perby personating another deemed sonate another, and, in such assumed character, shall receive stealing. any money, goods, rights in action, or property or effects of CH. 33.] CRIMES AND PUNISHMENTS. 303 any description, belonging or intended to be delivered to the individual so personated, shall, upon conviction, be punished in the same manner and to the same extent, as for feloniously stealing the money, property or other thing so received. SEa. 92. Every person who, being a party to any convey- Parties and privies to frauduance or assignment of any estate or interest in real estate, lentcoy ces, how punishgoods, or things in action, of any rents or profits issued there- edfrom, or to any charge upon such estate, interest, rents or profits made or created, with intent to defraud prior or subse. quent purchasers, or to hinder, delay or defraud creditors or other persons, and every person being privy or knowing of any such conveyance, assignment or -charge, who shall willingly put the same in use, as having been made in good faith, shall, upon conviction, be adjudged guilty of a misdemeanor. SEC. 93. Every person who shall make, execute or deliver Executingasocond deed frauduany deed or writing for the conveyance or assurance of any lently, without reciting the first, lands, tenements or hereditaments, goods or chattels, whicha maidemeanor. he had previously, by deed or writing, sold, conveyed, mortgaged or assured, or covenanted to convey or assure to any other person, such first deed being outstanding and in force, and shall not, in such second deed or writing, recite or describe: such former deed or writing, or the substance thereof, with intent to defraud, and every person who shall knowingly take or receive such second deed or writing, shall, on conviction, be adjudged guilty of a misdemeanor. SEC. 94. If any person shall unlawfully and maliciouslyMaliciously destroying or indestroy or injure any boat or vessel, or any engine or ma- juringb~oat or -vessel, with inchinery for propelling the same, whether the same be com tent townreisuhice pleted or in an unfinished state, or shall unlawfully or ma- punished. liciously cast away or strand, or in anywise injure any boat or vessel, with intent thereby to injure or prejudice any owner or part owner of such boat or vessel, or of any goods on board the same, or the insurer of such boat or vessel; or on the freight thereof, or upon any goods on board the same, the person so offending shall be punished by confinement and hard labor not exceeding seven years. SEC. 95. Every person who shall willfully adminiser a dministerinr.g or exposing poispoison to any domestic animal, or shall maliciously expose ntocattle,punishment. any poisonous substance, with the intent that the same shall be taken or swallowed by any domestic animal, shall, upon conviction, be punished by confinement and hard labor, not exceeding three years, or in the county jail, not less than 304 CRIMES AND PUNISHiMENTS. [CH. 33. twelve months, or by fine, not exceeding one thousand dollars, or by both a fine and imprisonment. Maliciously kill- SEC. 96. If any person shall willfully and maliciously kill, ing, &c., cattle, how punished. maim or wound any domestic animal of another, he shall, on conviction, be punished as in the next preceding section is provided. Malicious tres- SEC. 97. Every person who shall willfully, unlawfully and pass upon dwelling house, gate, maliciously break, destroy or injure the door or window of fence, &o., deemed a misdemean- any dwelling house, shop, store or other house or building, or sever therefrom or from any gate, fence or enclosure, or any part thereof, any material of which it is formed, or sever fronm the freehold any produce thereof or anything attached thereto, or shall pull down, injure or destroy any gate, post, railing or fence, or any part thereof, or cut down, lop, girdle or otherwise injure or destroy any fruit or ornamental or shade tree, being the property of another, shall, on conviction, be adjudged guilty of a misdemeanor. Malicious des- SEC. 98. Every person who shall willfully and maliciously truction, &c., of raft or lumber, burn, injure or destroy any pile or raft of wood, plank, boards wood, &c., deemed a misdemean- or other lumber, or any part thereof, or cut loose or set adrift or. p any such raft or part thereof, or shall cut, break, injure, sink, or set adrift any boat, canoe, skiff or other vessel, being the property of another, shall be adjudged guilty of a misdemeanor.,alicious injury SEC. 99. Every person who shall willfully and maliciously to mill dams, bridges, ete., cut down, injure, break or destroy any bridge or milldam, or deemed a misde- in ~m~eanor, other dam erected to create hydraulic power, or any embankment necessary to support such dam, or shall willfully or maliciously make or cause to be made any aperture in such dam or embankment, with intent to destroy or injure the same, shall be adjudged guilty of a misdemeanor. Removing or aln SEC. 100. Every person who shall willfully and maliciously marks a misde- either, First, Remove any monument of stone or other durameanor. ble material, created for the purpose of designating the corner or any other point in the boundary of any lot or tract of land, or of the Territory, or any legal subdivision thereof: or, Second, Deface or alter the marks upon any tree, post or other monument, made for the purpose of designating any point in such boundary: or, Third, Cut down or remove any tree upon which any such marks shall be made for such purpose, with intent to destroy such marks, shall, upon conviction, be adjudged guilty of a misdemeanor, Ca. 33.] CRIMES AND PUNISHMENTS. 305 SEC. 101. Every person Who shall willfully or maliciously Removing or destroying mile break, or destroy, or remove any mile post, mile stone, or any stos, &.,a guide board, erected by authority of law, on any public highway or turnpike road, or shall willfully and maliciously deface or alter any such inscription, on any such post, stone or board, shall be deemed guilty of a misdemeanor. SEC. 102. Every punishment and forfeiture imposed on any What shall be deemed malice. person maliciously committing any offence prohibited by thed provisions of either the last eight preceding sections, shall equally apply and be in force, whether the offence shall be committed from malice conceived against the owner of the property, in respect to which it shall be committed, or otherwise. SEC. 103. Every person who shall be convicted of a misde- Mlsdemeanors, how punished. neanor, as prohibited by this act, the punishment for which is not hereinbefore prescribed, shall be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment. SEC. 104. Every person who shall forge, counterfeit, or Forgery in the first degree. falsely alter, or cause or procure to be forged, counterfeited or falsely altered: First, Any will of real or personal property, or any deed or other instrument, being or purporting to be the act of another, by which any right or interest in real property shall be or purport to be transferred, or in any way changed or affectedl: or, Second, Any certificate of the acknowledgment or proof of any deed or other instrument, which by law may be recorded, made or purporting to have been made by any court or officer duly authorized to make such certificate or indorsement: or, Third, Any certificate of the proof of any will of real or personal property, which by law may be recorded, made or purporting to have been made by any officer authorized to make such certificate: or, Fourth, Any certificate or indorsement of the filing or recording any such will, deed or other instrument, which by law may be recorded, or purporting to have been made by any officer authorized to make such certificate or indorsement, with intent to defraud, shall, on conviction, be adjudged guilty of forgery in the first degree. SEC. 105. Every person who shall forge, counterfeit or Additional acts constituting for~alsely alter, or cause or procure to be forged, counterfeited or gery in the first degree. alsely altered: First, Any warrant, order, bill, certificate or 30$ CRIMES AND PUNISHMENTS. [CH.33o other public security, issued or purporting to have been issued under the authority of this Territory, by virtue of any law thereof, by which the payment of any money, absolutely or upon a contingency, shall be promised, or the receipt of any money, goods or valuable thing shall be acknowledged, or which shall be or purport to be receivable il payment of the Territory: or, Second, Any certificate of any share or interest in any public stock, created by virtue of any law of this Territory, issued or purporting to have been issued by any public officer, or any bond or other evidence of any debt of this Ter.ritory, either absolute or contingent, made or issued, or purporting to have been made or issued by any public officer: or, Third, Any indorsement, assignment or other instrument, transferring or purporting to transfer the right or interest of any holder of such warrant, order, bill, certificate, public security, certificate of stock, bond, evidence of debt or liability, or any person entitled to such right or interest, with intent to defraud this Territory, or any public officer thereof, or any other person, shall, on conviction, be adjudged guilty of forgery in the first degree. Forging certain SEC. 106. Every person who shall forge or counterfeit, or,econd degre cause or procure to be forged or counterfeited, the seal of this Territory, the seal of any court of record, or the seal of any public office authorized by law, the seal of any officer by law entitled to have and use an official seal, or the seal of any body corporate, duly incorporated by or under the laws of this Territory, or who shall make, or forge, or counterfeit any imp pression purporting to be the impression of any such seal, with intent to defraud, shall, upon conviction, be adjudged guilty of forgery in the second degree. Altering records SEC. 107. Every person who, with intent to defraud, shall And returns forgery in seand falsely alter, destroy, corrupt or falsify, or procure to be falsely altered, destroyed, corrupted or falsified: First, Any record of any will, conveyance or other instrument, the record or the copy of the record of which, by law, shall be evidence: or Second, Any record of any judgment or decree in any court of record: or, Third, The return of any officer, court or tribunal to any order, writ or process of any court, shall, upon conviction, be adjudged guilty of forgery in the second degrees. Altering entries SEC. 108. Every person who shall falsely make, forge or in records forgery in second alter, or cause or procure to be falsely made, forged or altered, degree. any entry in any book of records,, or any instrument purport QH. 33.] CRIMES AND PUNISHMENTS. 307 ing to be -any record or return, specified in the last section, with intent to defraud, shall, upon conviction, be adjudged guilty of forgery in the second degree. SEc. 109. If any person authorized to take the proof or ac- Making falfo certificates of knowledgment of any conveyance of real estate, or of anyackn~wfledg instrument which by law may be recorded, shall either: First, &c., forgery i Willfully certify that any such conveyance or instrument was acknowledged by any party thereto, when, in truth, no such acknowledgment was made: or, Second, Willfully certify that any conveyance or instrument was proved, when, in fact, no such proof was made: or, Third, Willfully certify falsely in any material matter contained in any certificate, being or purporting to be a certificate of the acknowledgment or proof of any such conveyance or instrument, shall, upon conviction, be adjudged guilty of forgery in the second degree. SEC. 110. Every person who shall counterfeit, or cause or Counterfeiting coin forgery in procure to be counterfeited, any gold or silver coin, at theseconddegree. time current within this Territory, by law or usage, or in actual use or circulation within this Territory, or shall make or cause to be made any false or counterfeit coin, in imitation or similitude of any gold or silver coin so current, or in actual use or circulation within this Territory, shall, on conviction, be adjudged guilty of forgery in the second degree.. SEC. 111. Every person who shall forge or counterfeit, or Forging notes falsely make or alter, or cause or procure to be forged, coun- in seconddegree terfeited, or falsely made or altered: First, Any promissory note, bill of exchange, draft, check, certificate of deposit, or other evidence of debt, being or purporting to be made or issued by any bank, incorporated under the laws of the United States or this Territory, or of any other Territory, State, government or country: Second, Any order or check, being or purporting to be drawn on any such incorporated bank, or any cashier thereof, by any other person company or corporation, shall, upon conviction, be adjudged guilty of forgery in the second degree. SEc. 112. Every person who shall sell, exchange or deliver, Selling and ochanging such or offer to sell, exchange or deliver, or receive upon a sale, ex- forgeryinse, change or delivery, for any consideration, any falsely made, ond degree. altered, forged or counterfeited note, check, bill, draft, or other instrument, the falsely making, altering, forging or counterfeiting of which is, by the last section, declared to be an offence, knowing the same to be falsely made, altered, forged or 308 CRIMES AND PUNISHMENTS. [CH. 83.counterfeited, with the intent to have the same altered or passed, shall be adjudged guilty of forgery in the second degree. Bringing into SEC. 113. Every person who shall bring into this Territory, Territory, or having in pos- or have in his possession or custody, any falsely made, altered, session such note or bill for-forged or counterfeited note, bill, check, draft or other instrugery in second degree. ment, the falsely making, altering, forging or counterfeiting of which is, by the one hundred and eleventh section of this act, declared to be an offence, knowing the same to be falsely made, altered, forged or counterfeited, with the intent to utter, pass, sell or exchange the same, as true or false, or cause the same to be passed, uttered, sold or exchanged, with intent to defraud, shall, on conviction, be adjudged guilty of forgery in the second degree. plates ngriminlin- SEC. 114. Every person who shall either: First, Make or tubileofcnyfobranengrave, or cause or procure to be made or engraved, any gery in second plate, in the form or similitude of any promissory note, bill of degree. exchange, draft, or order, check, certificate of deposit, or other evidence of debt, issued by any incorporated bank in this Territory, or by any bank incorporated under the laws of the United States, or of any State or Territory thereof, or under the laws of any foreign country or government, without the authority of such bank: or, Second, Have or keep in his custody or possession any such plate, without the authority of such bank, with the intent of using or having the same used for the purpose of taking therefrom any impression to be passed, sold or uttered: or, Third, Make, or cause to be. made, or have or keep in his custody or possession, any plate,, upon which shall be engraved any figures or words intended or adapted to, or which may be used for the purpose of falsely altering any evidence of debt, issued by any such incorporated bank, with the intent of using or having the same used for, that purpose: or, Fourth, Make or cause to be made, or have or keep in his custody or possession, without the authority of such bank, any impression taken from any such plate, with the intent to fill up and complete, or to have the same filled up and completed, or sold, passed or uttered, shall, upon conviction, be adjudged guilty of forgery in the second degree. When plate SEC. 115. Every plate specified in the last section shall be deemed in similitude of genuine deemed to be in the form and similitude of the genuine inbills, atc. strum eat, in either of the following cases: First, When the engraving on such plate, or any impression therefrom, resembles, OC. 33.] CRIMES AND PUNISHMENTS. 309 and conforms to such parts of the genuine instrument as are engraved: or, Second, Where such plate shall be partly finished, and the part so finished, or any impression therefrom, resembles and conforms to similar parts of the genuine instrument. SEC. 116. Every person who shall bring into this Territory, Trinnginhtoor have in his custody or possession, any counterfeit or imita- inl ipossessi or selling countion of gold or silver coin, the counterfeiting of which is here-te refit coin forinbefore declared to be an offence, knowing the same to be degree. counterfeited, with intent to defraud or injure, by uttering' the same as true or false, or by causing the same to be uttered, shall, upon conviction, be adjudged guilty of forgery in the third degree. SEC. 117. Every person who shall sell, exchange or deliver, Slling,e deor offer to sell, exchange or deliver, or receive upon any sale, livering such exchange or delivery, any such counterfeit or imitation of any third degree. gold or silver coin, specified in the last section, knowing the same to be counterfeited, with the intent to have the same uttered or passed, shall be adjudged guilty of forgery in the third degree. SEC. 118. Every person who, with intent to injure or de- Counterfeiting, fraud, shall falsely make, alter, forge or counterfeit any instru- a competent court, forgery ini ment or writing, being or purporting to be any process issued third degree. by any competent court, or magistrate, or officer, or any pleading or proceeding, filed or entered in any court of law or equity, or any certificate, order or allowance, by any competent court or officer, or any license or authority, authorized by any statute, shall, on conviction, be adjudged guilty of forgery in the third degree. SEC. 119. Every person who, with intent to injure or de- Counterfeiting w ~ iinstrument affraud, shall falsely make, alter, forge or counterfeit any in- fecting pecunia ry demands, for strument or writing, being or purporting to be the act of an- gery in third other, by which any pecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged, conveyed or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed, discharged, increased, or in any manner affected, the falsely making, altering,, forging or counterfeiting of which is not hereinbefore declared to be a forgery in some other degree, shall, on conviction, be adjudged guilty of forgery in the third degree. SEC. 120. Every person who, with intent to defraud, shall 010 CRIMES AND PUNISHMENTS. [CH. 33.'aolse entriesin make any false entries, or shall falsely alter any entry made books of certain V,,lc officer in a book of accounts kept in the office of auditor of public degree. accounts, or in the office of the Territorial treasurer, or of any county treasurer, or of the treasurer of any township or incorporated city or town, by which any demand or obligation, claim, right or interest, either against or in favor of this Territory, or any county, township, or incorporated city or town, or any individual, shall be or shall purport to be created, increased, discharged, diminished, or in any manner affected, shall, upon conviction, be adjudged'guilty of forgery in the third degree. aleo entries in SEC. 121. Every person who, with intent to defraud, shall books of monied (corporations for- make any false entries, or-shall falsely alter any entry made in gery in third. degree. a book of accounts kept by any moneyed corporation within this Territory, or in any book of accounts kept by any such corporation or its officers, and delivered or intended to be delivered to any person dealing with such corporation, by which any pecuniary obligation, claim or credit shall be or shall purport to be created, increased, diminished or discharged, or in any manner affected, shall, upon conviction, be adjudged guilty of forgery in the third degree. italngeuchin, SEC. 122. Every person who shall have in his possession, possession forgery infourth buy or receive any falsely made, altered, forged or counterfeited instrument or writing, the forgery of which is hereinbefore declared to be an offence, (except such as are enumerated in the one hundred and eleventh section of this act,) knowing the same to be forged, counterfeited, or falsely made or altered, with intent to injure or defraud, by uttering the same as true or false, or causing the same to be uttered, shall, on conviction, be adjudged guilty of forgery in the fourth degree. sllsg such in- SEC. 123. Every person who shall sell, exchange or deliver, strumnent forgery ei fourth or offer to sell, exchange or deliver, for any consideration, degree. any falsely altered, forged or counterfeited instrument or writing, the forgery of which is declared punishable (except as in the last section is excepted,) knowing the same to be forged, counterfeited or falsely altered, with the intention to have the same uttered or passed, shall, on conviction, be adjudged guilty of forgery in the fourth degree. lassing or at- SEC. 124. Every person who, with intent to defraud, shall tempting to pass counterfeit coin pass utter or publish, or offer or attempt to pass, utter or pubforgery in fourth dege. lish, as true, any forged, counterfeited, or falsely uttered in CH. 33.] CRIMES AND PUNISHMENTS. 311 strument or writing, or any counterfeit or any imitation of any gold or silver coin, the altering, forging or counterfeiting of which is hereinbefore declared to be an offence, knowing such instrument, writing or coin to be altered, forged or counterfeited, shall, upon conviction, be adjudged guilty of forgery in the same degree hereinbefore declared for the forging, altering or counterfeiting the instrument, writing or coin so passed, uttered or published, or offered or attempted to be passed, uttered or published. SEC. 125. The total erasure or obliteration of any instr- Total obliteration of writings, ment or writing, with intent to defraud, by which any pecu- when deemed forgery. niary obligation, or any right, interest or claim to money, right in action or property, shall be or purport to be, or shall be intended to be created, conveyed, transferred, increased, discharged, diminished or in any manner affected, shall be deemed forgery in the same manner and in the same degree as the false alteration of the whole or any part of such instrument or writing. SEC. 126. When different parts of several genuine instru- Putting together parts of genuments shall be so placed or connected together as to produce ine instruments, with intent to one instrument, with intent to defraud, the same shall be defraud, forgery. deemed forgery in the same manner and in the same degree as if the parts so put together were falsely made or forged. SEC. 127. Every instrument, partly printed and partly What deemed a written iustru. written, or wholly printed, with a written signature thereto, ment. and every signature of an individual, firm or corporate body, or of any officer of such body, and every writing purporting to be such signature, shall be deemed a writing and written instrument, within the meaning of the provisions of this act. SEC. 128. The false making, forging or counterfeiting of Affixing pretended signature any evidence of debt or negotiable instrument, issued or pur-to notes, etc., of corporations, porting to have been issued by any corporation having aun-deemed forgery. thority for that purpose, to which shall be affixed the pretended signature of any person as an agent or officer of such corporation, shall be deemed a forgery, in the same degree and in the same manner as if such person was, at the time, an officer or agent of such corporation, notwithstanding such person may never have been an officer or agent of such corporation, or notwithstanding there never was any such person in existence. SEC. 129. The false making, forging or counterfeiting of any Making false ininstrumet or wrng, beng o purporting to be the ac struments in a instrument or writing, being or purporting to be the act of fictitious name. 312 CRIMES AND PUNISHMENTS. [CHr 33. another, by which any pecuniary demand or obligation, or any right, interest or claim to money, right in action or property, shall be or purport to be, or intended to be conveyed, transferred, created, increased, discharged, diminished or in any manner effected, to which shall be affixed a fictitious name, or the name or pretended signature of any person not in existence, shall be deemed a forgery in the same degree and in the same manner as if the name so affixed was the name of a person in being, or purporting to be the signature of a person in existence. Makling false in- SEC. 130. If any one shall, with intent to injure or defraud, struments in his own name as the make any instrument or writing, (as in the last section speciact of another, forgery. fied,) in his name, and shall utter or pass it under the pretence that it is the act of another who bears the same name. he shall, upon conviction, be adjudged guilty of forgery, in the same degree as if he had forged the instrument in the name of a person bearing a different name from his own. Impairirg or SEC. 131. Every person who, with intent to defraud, shall clipping gold or silver coin. impair, falsely clip, scale, lighten or diminish any gold or silver coin, current by law or usage, or in actual use and circulation within this Territory, shall, on conviction, be adjudged guilty of forgery in the fourth degree. Ptnishment for SEC. 132. Persons convicted of forgery, as herein specified grees of forgery. and declared, shall be punished as follows: First, Those convicted of forgery in the first degree, by imprisonment and hard labor, for a term not less than five nor more than twentyone years: Second, Those in the second degree, by the like confinement and hard labor, not less than three nor more than ten years: Third, Those in the third degree, by like confinement and hard labor, not exceeding seven years: Fourth, Those in the fourth degree, by the like imprisonment and hard labor, not exceeding five years, or by imprisonment in a county jail not less than six months. makingorkeep- SEc. 133. Every person who shall form, make or mend, ing rolling press for forgery, etc. have or keep in his possession or custody, or sell, exchange or deliver to another, any paper rolling press or other tool, instrument or material, devised, adapted or designed for the stamping, forging, and making any false or counterfeit bill, note, certificate or other negotiable evidence of debt, issued by any incorporated bank, as specified in the one hundred and eleventh section of this act, or devised, adapted and designed for the falsely altering any such bill, note, draft, check, certi CH. 33.] CRIMES AND PUNISHMENTS. 313 ficate or other evidence of debt, of any such bank, with intent to use and employ the same, or cause or permit the same to be used or employed in the falsely making, altering, forging or counterfeiting any such bill, note, draft, check or certificate, or other evidence of debt, shall, upon conviction, be punished as hereinbefore prescribed for forging in the third Punishment. degree. SEC. 134. If any person shall cast, stamp, engrave, form, To cast, stamp, engrave, etc., or make or amend, or shall begin to cast, stamp, engrave, form, have tools for that purpose, make or amend, or shall knowingly have in his possession or withintenlt, etc, how punished. custody, or shall sell, exchange or deliver to another, any mould, pattern, dye, puncheon, engine, press or other tool or instrument, devised, adapted or designed for the coining or making, edging, graining or lettering any false or counterfeit money or coin, in imitation or similitude of any gold or silver coin, current by law or usage, or in use or circulation within this Territory, with the intent to use and employ the same, or procure or permit the same to be used or employed in coining or making, or edging, graining or lettering any such false and counterfeit coin, upon conviction, shall be punished as hereinbefore prescribed for forgery in the fourth degree. SEC. 135. Every person who shall falsely represent or per- Personating another in certain sonate another, and in such assumed character shall, either: cases, how pluFirst, Become bail or security, or acknowledge any recognizance, or execute any bond or other instrument, as bail or security, for any party in any proceeding, civil or criminal, before any court or officer authorized to take such bail or security: or, Second, Confess any judgment: or, Third, Acknowledge the execution of any conveyance of any real or personal property, or any other instrument which, by law, may be recorded; or, Fourth, Do any other act, in the course of a suit, proceeding or prosecution, whereby the person so represented or personated may be made liable in any event to the payment of any debt, damages, costs or sum of money, or his rights or interests may be in any manner affected, shall, on conviction, be punished by confinement and hard labor, not exceeding ten years. SEC. 136. If any person shall unlawfully, willfully and mali-Destroying wisedll ciously tear, cut, burn or in any way whatever destroy any will, deed or other instrument or writing, the falsely making, altering, forging or counterfeiting of which is hereinbefore declared to be a punishable offence, shall, on conviction, be punished by 314 CRIMES AND PUNISHIMENTS. [Cu. 33. imprisonment in a county. jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and imprisonment. Of Crimes Affecting the Administration of Justice. Perjury defined. SEC. 137. Every person who shall willfully and corruptly swear, testify or affirm falsely to any material matter, upon any oath or affirmation, or declaration legally administered, in any cause, matter or proceeding, before any court, tribunal or public body or officer, shall be deemed guilty of perjury. its punishment. SEC. 138. Every person who shall be convicted of willful and corrupt perjury shall be' punished, in the following cases, as follows: First, For perjury, committed on the trial of any indictment for a capital offence, with an express premeditated design to effect the condemnation and execution of the prisoner, death, or confinement and hard labor not less than ten years: Second, For perjury committed on the trial of an indictment for a capital offence, without such design, or for any other felony, by confinement and hard labor not less than seven years: Third, For perjury committed on any other trial or proceeding, or in any other case, by confinement and hard labor, for a term not exceeding seven years. pebornyatio of SEC. 139. Every person who shall procure any other person, by any means whatsoever, to commit any willful or corrupt perjury in any cause, matter or proceeding, in or concerning which such other person shall be legally sworn or affirmed, shall be adjudged guilty of subornation of perjury. Its punishment. SEC. 140. Every person convicted of subornation of perjury shall be punished in the same manner as hereinbefore prescribed, upon a conviction for the perjury which shall have been so procured. Attempt to pro- SEC. 141. Every person who shall, by the offer of any valucure perjury, how punished. able consideration, attempt unlawfully [and corruptly to procure or entice any other to commit willful] and corrupt perjury, in any cause, matter or proceeding, in or concerning which such other person might, by law, be sworn or affirmed, shall, on conviction, be punished by confinement and hard labor for a term not exceeding five years. What sufficient SEC. 142. In any indictment for perjury, it shall be sufficient in indictment for perjury, to set forth the substance of the offence charged, and by what court or before whom the oath was taken (averring such court or person to have competent authority to administer the same) CH. 33.] CRIMES AND PUNISHMENTS. 315 together with the proper averments to falsify the matter wherein the -perjury is assigned, without setting forth any part of the record, proceeding or process, either in law or equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same. SEc. 143. In every indictment for subornation of perjury, or whntufflnent for any corrupt bargain, contract or attempt to procure another for subornatton to commit perjury, it shall be sufficient to set forth the substance of the offence, without setting forth the record, proceedings or process, or any commission or authority of the court or person before whom the perjury was committed, or was agreed or promised to be committed. SEC. 144. Every person who shall, by bribery, menace or Bribilgwitness other means, directly or indirectly, induce or attempt to induce evidence, &c., how punishelL any witness to absent himself, or avoid a subpoena or other process, or to withhold his evidence, or shall deter or attempt to deter him from appearing or giving evidence in any cause, matter or proceeding, civil or criminal, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail, not exceeding one year, and by fine, not exceeding three hundred dollars. SEC. 145. If any person summoned as a juror, or if any per- Jurors, arbitrarors and refer. son chosen as an arbitrator, or appointed a referee, shall take ees, how punished for bribery. any thing to give his verdict, award or report, or shall receive any gratuity or gift from any party to a suit, proceeding or prosecution, for the trial of which such person shall have been summoned or sworn as a juror, or for the hearing of which he shall have been chosen an arbitrator or appointed a referee, he shall, on conviction, be punished by confinement and hard labor not exceeding five years, or in the county jail, not less than six months, or by a fine, not less than five hundred dollars; or by a fine, not less than one hundred dollars, and imprisonment in the county jail, not less than three months nor more than one year. SEC. 146. Every person who shall corrupt or attempt to cor- Bribing or att. tempting to rupt any other summoned or sworn as juror, appointed a re- bribe jurors, al.bitrators, &c., feree or chosen an arbitrator, by giving or offering to give anyhow punished. gift or gratuity whatsoever, with intent to bias the mind of such juror, referee or arbitrator, or incline him to be more favorable to one side than the other, in relation to any cause, matter or proceeding which may be pending in the court to which such 316 CRIMES AND PUNISHMENTS. [EH. 33. juror shall have been summoned, or in which such referee or arbitrator shall have been chosen or appointed, shall, on conviction, be punished as in the next preceding section is prescribed. Jurors guilty of SEc. 147. If any person summoned or sworn as a juror, in certain improper conduct, how any case, shall promise or agree to give any verdict for or punished. against any party, in any cause or proceeding, civil or criminal, or shall receive any paper, evidence or information from any one, in relation to any matter or cause, for the trial of which he shall be sworn, without the authority of the court or officer, before whom such juror shall have been summoned, and without immediately disclosing the same to such court or officer, he shall, on conviction, be adjudged guilty of a misdemeanor, be punished by fine, not exceeding three hundred dollars, or by imprisonment in the county jail, not exceeding one year, or by both such fine and imprisonment. Attempting to SEC. 148. Every person who shall attempt improperly to ininfluence jurors, arbitrators, &c., fluence any juror in any civil or criminal case, or any one sumhow punished. moned as a juror, or any one chosen an arbitrator, or appointed a referee, in relation to any matter pending in the court or before the officer before whom such juror shall have been summoned or sworn, or pending before such arbitrator or referee, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished as in the last preceding section is prescribed. Officers guilty of SEC. 149. If any person, whose duty it shall be to select or unfair conduct 4 jl rSoumonnhgw summon any jurors in any court or before any court, or before punished. any officer, shall be guilty of any unfair, partial or improper conduct in selecting or summoning any juror, he shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding five hundred dollars, or by imprisonment in the county jail, not exceeding one year, or by both such fine and imprisonment. Compounding or SEC. 150. Every person having a knowledge of the actual concealing felonies, how pun- commission of any offence punishable by death, or by confineished. ment and hard labor, who shall take any money or property of another, or any gratuity or reward, or any promise, undertaking or engagement therefor, upon agreement or understanding, express or implied, to compound or conceal such crime, or to abstain from any prosecution therefor, or withhold any evidence thereof, shall, upon conviction, be punished by confinement and hard labor for a term not exceeding five years. SEC. 151. Every person having a knowledge of the actual com CB. 33.] CRIMES AND PUNISHMENTS. 317 mission of any offence punishable only by imprisonment in the Compounding, county jail, or by fine, or by such imprisonment and fine, or ofso, how punishany misdemeanor or violation of any statute for which any pecuniary or other penalty or forfeiture is or shall be prescribed, who shall take any money, property, gratuity or reward, or any promise, engagement or undertaking therefor, upon any agreement or understanding, express or implied, to compound or conceal any such offence or misdemeanor, or to abstain from any prosecution therefor, or to withhold any evidence thereof, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail, not exceeding one year, or by fine, not exceeding three hundred dollars, or by both such fine and imprisonment. SEC. 152. Upon the trial of any indictment for any offences Crinviotin of specified in the two last sections, it shall not be necessary to necessary in It shall not be nece y trial of offences prove the conviction of any offender for the offence, in relation pified in thej to which any agreement or understanding therein prohibited shall have been made. SEC. 153. If any person or persons shall knowingly and will- Obstructing profully obstruct, resist or oppose any sheriff or other ministerial felony, how punofficer in the service or execution, or in the attempt to serve or execute any writ, warrant or process, original or judicial, or in discharge of any official duty in any case of felony, every person so offending shall, upon conviction, be punished by confinement and hard labor, for a term not exceeding five years, or by imprisonment in the county jail for a term not less than six months, or a fine, not less than five hundred dollars, or by a fine, not less than one hundred dollars, and imprisonment in the county jail, not less than three months nor more than one year. SEC. 154. If any person or persons shall knowingly and~pbstructingpros willfully obstruct, resist or oppose any sheriff, or any other esaandmisdeministerial officer, in the service or execution, or in the attempt punishea. to serve or execute any writ, warrant or process, original or judicial, or in the discharge of any other duty, in any case, civil or criminal, other than felony, or in the service or attempt to serve any order or rule of -court, in any case, every person so offending shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail, for a term not exceeding one year, or by fine, not exceeding three hundred dollars, or by both such fine and imprisonment. SEC. 155. Every person who shall knowingly and willfully 21 318 CRIMES AND PUNISHMENTS. [CO. 33. To assaulti, tc., assault, beat or wound any such officer, while engaged in the officer in disduty, geof pffical service or execution, or attempt to serve or execute any writ, ehed~. warrant or process, original or judicial, or any order or rule of court, or while in the discharge of any other official duty, shall, on conviction, be adjudged guilty of a misdemeanor, and punished as in the last preceding section is declared. secuingprison- SEC. 156. If any person or persons shall by force set at liber convicted of capital offence, erty, or rescue from custody or prison, any person convicted of a capital offence, or shall set at liberty or rescue any person convicted of such crime, while going to execution, or during execution, every person so offending shall be punished by confinement and hard labor, for a term not less than ten years nor more than twenty-one years. Rescuing prisotn SEC. 157. If any person or persons shall by force set at libthe same. erty or rescue any prisoner while in custody or confinement for a capital offence, before conviction, every person so offending shall, on conviction, be punished by confinement and hard labor, not exceeding ten years. gRescuin, prison- SEC. 158. If any person or persons shall, by force, set at er charged or convicted of fel-liberty or rescue any prisoner in custody or confinement for a onics not capi- a tal. felony not capital, whether before or after conviction, every person so offending shall be punished by confinement and hard labor for a term not exceeding ten years. Rescuingprison- SEC. 159. If any person or persons shall, by force, set at ers charged or convicted of of- liberty or rescue any person held in custody or prison for any fencos other than flony. offence other than felony, whether before or after convictions or upon any writ or process, original or judicial, in any civil case, every person so offending shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail, for a term not exceeding one year, and by fine, not exceeding five hundred dollars. ttempt to res- SEC. 160. Every person who shall attempt, by force, to set cuo prisoner chargaed or con- at liberty or rescue any prisoner in custody or confinement for victed of felony, bow punished, a felony, whether before or after conviction, shall be punished by confinement and hard labor for a term not exceeding five years.,Attempt to,s- SEC. 161. Every person who shall attempt, by force, to set cue prisoner charged or con- at liberty or rescue any prisoner in custody for an offence other victed of offences notfelonies, how than felony, before or after conviction, or upon any writ, warpunished. rant or process, original or judicial, in a civil case, or any other lawful authority, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding three Ca. 33.] CRIMES AND PUNISHMENTS. 319 hundred dollars, or by imprisonment in the county jail, not exceeding six months. SEC. 162. Every person who shall convey into the peniten- Conveying instrumnmts into tiary, or any jail or other place of imprisonment, any disguised jofprts aid escae instrument, arms or other thing proper or useful to aid anyare felns, how punished. prisoner in his escape, with intent thereby to facilitate the escape of any prisoner, lawfully committed to or detained in any such place of confinement and hard labor for any felony whatever, whether such escape be effected or attempted or not, shall, upon conviction, be punished by imprisonment in the penitentiary4 for a term not exceeding ten years. SEc., 163. Every person who shall convey into any jail, or onveying instruments into place of confinement, any disguised instrument, or any thingjiaaito aidei proper or useful to facilitate the escape of any prisoner law- ers other than propert or usefu lo fins, punishfully committed to or detained in such jail or place of confine- ment' ment, for any criminal offence other than a felony, or lawfully imprisoned or detained therein for any violation of any penal statute, or in any civil action, whether such escape be effected or attempted or not, shall be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and imprisonment. SEC. 164. Every person who shall, by any means whatever, iding felon to'-J - I -' ~ "-'~ -escape from jail, aid or assist any prisoner, lawfully detained in any jail or place how punished. of confinement, for any felony, to escape therefrom, whether such escape be effected or not, shall, upon conviction, be punished by confinement and hard labor, for a term not exceeding five years. SEC. 165. Every person who shall, by any means whatever, Aiding prisoner other than felons aid or assist any prisoner, lawfully committed to any jail or place of confinement, in any case, civil or criminal, other than a felony, to escape therefrom, whether such escape be effected or not, shall be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and imprisonment. SEC. 166. Every person who shall aid or assist any prisoner Aiding prisoner to escape from in escaping or attempting to escape from the custody of any the custody of sheriff, coroner, constable or other ministerial officer or other person, who shall have the lawful charge of such prisoner, shall, upon conviction, be punished in the same manner as if such prisoner were confined in any jail or other place of cons. finement. J20 MIUMES ANbD PUNISHMEN1T9 [On. 33. limited when SiEC. 167. But if any aid' or assistance, prohibited by the last the object is three sections, be rendered by any prisoner detained for any prisoner's own escape. crime in the same jail, place of confinement or custody, with the intent of facilitating his own escape, the punishment of such prisoner shall not exceed that prescribed by law upon conviction for his own escape. Pruingment for SEC. 168. If any person, confinedt in a place of confinement: tentiary, escap- for any term less than for life, or in lawful custody, going to ing, &c. the place of confinement, shall break such prison or custody,. and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor for a term not exceeding five years, to commence at the expiration of the original term of imprisonment. Punishment for SEC. 169. If any person, confined in the penitentiary for any escaping from penitentiary. term less than life, shall escape from such prison or from the custody of the officers, he shall be liable to the punishment imposed for breaking the prison. Punishment for SEC. 170. If any person, confined at hard labor for any term less than life, shall escape therefrom without being: guilty of' breaking such prison, within the meaning of the preceding section, (section 169;) he shall, upon conviction, be punished by confinement and hard labor, f6r a term not exceeding three years, to commence at the expiration of the original term of imprisonment. Punishment for SEC. 171. If any person, confined in any county jail, upon escape from county jail when conviction for any criminal offence, or held in custody, going the prisoner is crie.d for to such jail, shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor, not exceeding three years, or in a county jail, not less than six months, to commence at the expiration of' the original term of imprisonment. Punishment of SEC. 172. If any person, lawfully imprisoned or detained in escape before conviction,when any county jail or other place of imprisonment, or in the custhe charge is for penaltatutef a tody of any officer, upon any criminal charge,, before conviction for the violation of any penal statute, shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor, for a term not exceeding two years, or in a county jail, not less than six months. Escapefromcon- SEC. 173. Every person lawfully confined at hard labor, or fanement by force orviolence, held in custody going to such place of confinement, under a how pund sentence of imprisonment therein for a term less than life, who mB. 383.] CRIMES AND PUNISHMENTS. 321:shall attempt, by force or violence to any person, to effect his escape from such confinement or custody, whether such escape be effected or not, shall, upon conviction, be punished by confinement and hard labor, not exceeding five years, to commence -at the expiration of the original term of imprisonment. SEC. 174. Every person, lawfully imprisoned in a county Escapingorattempting an esjail or other place of confinement, or held in custody of any caPe from counj ty jail, how pun',officer, for any cause whatever, who shall attempt, by force or ishd. violence to any person, to effect his escape from such imprisDonment or -custody, although no escape be effected, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding six months, or fined not exceeding one hundred dollars, or both. SEC. 175. If any officer, or other person having, by law, the Offiergpermited ting disguised custody or charge of any place of confinement and hard labor, instrumeyentto or any county jail or other place of confinement, or the under- jaui~oplorcelhow officer or deputy of such officer or person, shall, knowingly, suffer or permit any disguised instrument, arms or other thing proper,or useful to aid any prisoner in his escape, to be convreyed into or remain in such jail or place, he shall, upon conVietion, suffer the like punishment as the person conveying such disguised instrument, arms or other thing, into such jail or place, would be liable to, according to the provisions of this SEC. 176. If any officer, or his under-officer or deputy, or Officer permitting or conni. any lessee, keeper, agent or guard, of any place of confinement, nog at escape, how punished~ having the lawful custody of any prisoner, for any cause what-'ever, shall voluntarily suffer or permit, or connive at, the escape of such prisoner from his custody, or permit him to go at large, he shall, on conviction, be punished in the same manner as if he were convicted of aiding or assisting such prisoner to escape. SEC. 177. If any sheriff or other officer shall willfully or cor- Officer refusing to execute proruptly fail or refuse to execute any lawful process, which, by ces on any Per~ y Y son charged law, it is his duty to execute, requiring the apprehension or with crime, how confinement of any person charged with a criminal offence, whereby such person shall escape, the officer so offending shall be punished in the same manner as persons convicted of aiding or assisting in such escape. SEC. 178. If any jailor or keeper of a county jail, shall re- J&ilor refusing fuse to receive in the jail, under his charge, any person law- oerd.how punully committed to such jail, on any criminal charge or convict 322 CRIMES AND PUNISHMENTSo E[H. 33., tion, or on any lawful process whatever, he shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding one year, and by fine, not exceeding three hundred dollars. Forfeiture of of- SEC. 179. Every officer who shall be convicted of any of the fice annexed to y certain offences. offences specified in the last four preceding sections, shall forfeit his office. Prisoner escap- SEC. 180. If any person, sentenced to imprisonment in a ing may be retafkenx, county jail or other place of confinement, on a conviction for a criminal offence, shall escape, he may be pursued, retaken and imprisoned again, notwithstanding the term for which he was sentenced to be imprisoned may have expired at the time he is retaken, and remain so imprisoned until tried for such escape, or until he be discharged by a failure to prosecute therefor. Common barra- SEC. 181. Every person who shall be convicted of being a try, how punished. common barrator, shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding three hundred dollars, or by both such fine and imprisobment, Of Crimes affecting Public Trusts. Bribery of off- SEC. 182. Every person who shall, directly or indirect ly eers, how punShed. give any money, goods, rights in action, or any other valuable consideration, gratuity, or reward, or any promise, undertaking, or security therefor, to any officer of this Territory, or of any countyr:- First, With intent to influence his vote. opinion, judgment, or decision on any question, matter, cause, or proceeding which may be then pending, or may by law be brought before him in his official capacity, or to induce him to neglect or omit the performance of any official duty, or to perform such duty with partiality or favor, otherwise than is required by law; or, Second, In consideration that such officer hath given any vote, opinion, judgment, or decision, in any particular manner, upon any particular side, or more favorable to one side than the other, or any matter, question, cause, or proceeding, or hath omitted to perform any official act or duty, or hath performed such act or duty with partiality or favor, or otherwise, contrary to law, shall, on conviction, be adjudged guilty of bribery, and be punished by confinement and hard labor for a term not exceeding seven years. Officers receiv- SEC. 183. Every such officer who shall, directly or indirectly, ing such bribe, hbgwPunished. accept or receive any gift, consideration, gratuity, or reward, or any promise or undertaking to make the same: First, OH. 33.] CRIMES AND PUNISHMENTS. 323 Under any agreement that his vote, opinion, judgment, or decision shall be given in any particular manner, on any particular side, or more favorable to one side than the other, in any question, matter, cause, or proceeding which may be pending or be brought before him in his official capacity, or that he shall neglect or omit to perform any official duty, or perform the same with partiality or favor, or otherwise than according to law; or, Second, In consideration that he hath given his vote, opinion, judgment, or decision, in any particular manner, on any particular side, or more favorably to one side than the other, of any question, matter, cause, or proceeding, or hath neglected or omitted to perform any official act or duty, or performed such act or duty with partiality or favor, or otherwise contrary to law, shall, on conviction, be adjudged guilty of bribery. and shall be punished by confinement and hard labor for a term not less than two years, nor more than ten years. SEC. 184. Every person who shall, directly or indirectly, Bribery withthe give or engage to give any sum of money, or other valuable hPopnishetdm. consideration, gratuity, or reward to any officer: First, With intent to influence or induce such officer to give or procure for him, or any other, by his act, interest, influence, or other means whatever, any appointment, office, or place of trust, or any preferment or emolument, or assist, by any means whatsoever, to procure the same; or, Second, In consideration of any office or appointment, preferment or emolument, act, interest, or influence, or any aid or assistance in procuring or attempting to procure such appointment, office, or place of trust, or any emoluments, shall, on conviction, be adjudged guilty of bribery, and shall be punished by confinement and hard labor for a term not exceeding seven years. SEC. 185. Every officer who shall, directly or indirectly, Officers receiimg such bribs accept or receive of another any sum of money, or otherhowpunished. valuable consideration, gratuity, or reward, or any promise or security thereof: First, Upon any agreement to give or procure, by his act, interest, or influence, or other means, any appointment, office, or place of trust, or any preferment or emolument, or to aid or assist in procuring the same for another person; or, Second, In consideration of any office or appointment, place or preferment, or emolument, or any act, interest, or influence, aid or assistance, by any means, in procuring or attempting to procure any such appointment, office, 324 CRIMES AND PUNISHMENTS. [CO. 33. place of trust, preferment, or emolument, shall, on conviction, be adjudged guilty of bribery, and punished as in the next preceding section is prescribed. Giving and pro- SEC. 186. Every person who shall, directly or indirectly, curing office, &c, in consideration give to or procure, or aid or assist in procuring, for another, of bribes, pun- I ishmnent. by his aid, interest, or influence, or by any other means whatsoever, any office, appointment, or place of trust, or any preferment or emolument, with the intent, or upon the consideration mentioned in the one hundred and eighty-second or one hundred and eigty-fourth sections of this act, shall, upon conviction, be adjudged guilty of bribery, and punished in the same manner as if he had paid or engaged to pay money, with the like intent, and for a like consideration. Accepting ofices SEC. 187. Every person who shall, directly or indirectly, procured in this way, punish- accept, receive, or obtain any office, appointment, or place of.nent for. trust, preferment or emolument, or aid or assistance in obtaining or attempting to obtain the same, for himself or another, or any promise or undertaking to procure such office, appointment, place of trust, preferment, or emolument, by the act, interest, or influence, aid or assistance of another, upon any agreement or consideration mentioned in the one hundred and eighty-third and one hundred and eighty-fifth sections of this act, shall, upon conviction, be adjudged guilty of bribery, and punished in the same manner as if he had received money upon a like agreement or consideration. Offering or at- SEC. 188.'If any person shall, by any of the means mentempting to bribe in anyway tioned in the preceding sections of this act, or otherwise offer before specified, bowpunishedd. or attempt to bribe any officer or other person, in any of the cases hereinbefore mentioned, he shall, on conviction, be punished by confinement and hard labor for a period not exceeding five years, or by imprisonment in the county jail for a term not exceeding one year, and a fine not less than one thousand dollars. Giving or prom- SEC. 189. If any person shall, directly or indirectly, give ising money or office in consid- or procure to be given, or engage to give, any money, gift, eration of election to office, or reward, or any office, place, or employment, upon any etc., bribery. engagement, contract, or agreement, that the person to whom, or to whose use, or on whose behalf, such gift or promise shall be made, shall, by himself or any other, procure or endeavor to procure the election of. any person to any office, at any election by the electors, or any public body, under the constitution or laws of this Territory, the person so offending shall, CHI. 33.] CRIMES AND PUNISHMENTS. 825 on conviction, be adjudged guilty of bribery, and punished by imprisonment and hard labor for a term not exceeding five years. SEC. 190. Every person who shall, by himself or another,Receiving money or office on to his use or on his behalf, accept or receive any such money, such agreement, bribery. gift or reward, office, place or employment, or any promise or security therefor, upon any such engagement, contract, or agreement, as specified in the preceding section, shall be adjudged guilty of bribery, and shall forfeit the full amount of such money, gift, or reward, and shall, moreover, be punished by imprisonment and hard labor for a term not exceeding five years. SEC. 191. If any person who shall have or claim to have Anypersonhaving a right to a right to vote in any election authorized to be held by thevote receiving a bribe, how punorganic law or the laws of this Territory, shall ask, receive, ished. or take any money or other reward by way of gift, loan, or other device, or agree or contract for any money, gift, office, employment, or other reward whatsoever, to give his vote, or refuse or forbear to give his vote in any such election, the person so offending shall, on conviction, be adjudged guilty-of bribery, and shall be punished by fine not exceeding three hundred dollars, or by imprisonment in the county jail for a term not exceeding one year, or by both such fine and imprisonment. SEc. 192. If any person, by himself or any person employed Bribery of voter, by him, shall, by any gift or reward, office or employment, or ho pnished. by any promise, agreement, or security therefor, corrupt or procure, or attempt to corrupt or procure, any person, who shall. have or claim to have a right to vote at any election, to give or forbear to give his vote at such election, the person so offending shall, on conviction, be adjudged guilty of bribery, and punished as in the next preceding section is prescribed. SEC. 193, Every person holding or exercising any office orSelling office or _ deputation public trust under the laws of this Territory, or the act Ofthereof, how Congress organizing this Territory, who shall, for any rewardpunished. or gratuity, or any valuable consideration, paid or agreed to be paid, directly or indirectly, grant, bargain, or sell such office or any deputation thereof, or grant the right or authority to discharge any of the duties thereof, to another, shall, on conviction, be punished by confinement and hard labor not exceeding five years, or by imprisonment in a county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. 326 CRIMES AND PUNISHMENTS. [CH. 33. ing to pay foree SEC. 194. Every person who shall give or make any agreeph ofice, how ment to give any money, property, right in action, or other gratuity or reward, in consideration of any such bargain, grant, or deputation of an office, or any part thereof, shall, upon conviction, be punished as prescribed in the last preceding section. Construction SEC. 195. The two preceding sections shall not be conand qualification of two precedingstrued to extend to the appointment of a deputy by any sections. officer authorized by law to have a deputy, so that no gratuity or reward be paid, or agreed to be paid, for such deputation. Such grant or SEC. 196. Every grant or deputation of office made contrary deputation of office declared to the foregoing provisions, shall be void; but all official acts, void, saving acts done previous to done before conviction under this act, by any deputy of an conviction. officer authorized to make such appointment, shall be valid. Oppression, tl, ar SEC. 197. Every person exercising or holding any office or ubclic officer, public trust, who shall be guilty of willful and malicious how punished. r oppression, partiality, misconduct, or abuse of authority, in his official capacity, or under color of his office, shall, on conviction, be punished by imprisonment in a county jail for a term not exceeding one year, and fine not exceeding one thousand dollars. ted by publmit- SEC. 198. Every officer or public agent of this Territory, officer, how pun or of any county, who shall commit any fraud in his official ished. capacity, or under color of his office, shall be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail for a term not exceeding one year, or by fine not exceeding one thousand dollars, or by both such imprisonment and fine. i tqualifica- SEC. 199. Every person who shall be duly convicted of any tions annexed to comissionf of of the offences mentioned in the preceding sections of this:foncoeq. act, shall be forever disqualified from holding any office of honor, trust, or profit under the laws of this Territory, and from voting at any election. Punishment for SEC. 200. Every officer who shall, by color of his office, feis. unlawfully and willfully exact or demand and receive any fee or reward to execute or do his duty, or for any official act done or to be done, that is not due, or more than is due, or before it is due, shall, upon conviction, be adjudged guilty of a misdemeanor, punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. SEC. 201. Every collector of the revenue, who shall unlaw CH. 33.] CRIMES AND PUNISHMENTS. 327 fully collect taxes when none are due, or shall willfully and Coellctloruawunlawfully exact or demand more than is due, shall, upon txes, punishconviction, be adjudged guilty of a misdemeanor, and be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. SEC. 202. Every officer or person, holding any trust or General provsions touching appointment, who shall be convicted of any willful miscon- the miscoduoct of public officers duct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct, or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. SEC. 203. Every officer who shall be convicted of any orfteiture of offlee declared. official misdemeanor or misconduct in office, or who shall be convicted of any offence which, by this or any other statute, is punishable by disqualification to hold office, shall, in addition to the other punishments prescribed for such offences, forfeit his office. SEC. 204. If any person shall take upon himself any office Usurpation of office, how puuor public trust in this Territory, and exercise any power to ished. do any act appertaining to such office or trust, without a lawful appointment or deputation, he shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year. SEC. 205. If any person, by menaces, threats, or force, or Penalty for attempting unlawby any other unlawful means, either directly or indirectly, at- fully to influence voters. tempts to influence any qualified voter in giving his vote, or to deter him from giving the same, or disturbs or hinders him in the free exercise of his right of suffrage, at any election held under the laws of this Territory, the person so offending, shall, on conviction thereof, be adjudged guilty of a misdemeanor, and be punished by fine, not exceeding five hundred dollars, or by imprisonment in the county jail, not exceeding one year. SEC. 206. Every person who shall, at the same election, Penalty for voting more than vote more than once, either at the same or a different place, onsceat the sama shall, on conviction, be adjudged guilty of a misdemeanor, and be punished by fine, not exceeding fifty dollars, or by imprisonment in the county jail, not exceeding three months. 328 CRIMES AND PUNISHMENTS. [CH. 33. Penalty for vot- SEC. 207. Every person, not being a qualified voter, acing without be- E "en I ing qualified, cording to the organic law and the laws of this Territory, who shall vote at any election within this Territory, knowing that he is not entitled to vote, shall be adjudged guilty of a misdemeanor, and punished by fine not exceeding fifty dollars, and imprisonment in the county jail, not exceeding six months, Penalty for SEC. 208. Any person who designedly gives a printed or fraudulently giving voters prin- written ticket to any qualified voter of this Territory, containing the written or printed names of persons for whom said voter does not design to vote, for the purpose of causing such voter to poll his vote contrary to his own wishes, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding five hundred dollars, or by imprisonrent in the county jail, not exceeding three months, or by both such fine and imprisonment. Penalty for SEC. 209. Any person who shall cause to be printed and printing or circulating fraudu- circulated, or who shall circulate any false and fraudulent lent tickets. tickets, which, upon their face, appear to be designed as a fraud upon voters, shall, upon conviction, be punished by fine, not exceeding five hundred dollars or by imprisonment in the county jail, not exceeding three months, or by both such fine and imprisonment. Per sons holding SEC. 210. Any person or persons whomsoever, who may be elections guilty of fraud, how charged with holding any election in this Territory, authorpunished. ized by law, who shall willfully and knowingly receive any vote offered by any person who is not a bona fide resident of this Territory, at the time of offering to vote, or who shall have voted previously at the same election, or any person who shall knowingly and willfully commit any irregularity or fraud whatever, with the intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and, upon conviction thereof; shall be punished by imprisonment and hard labor, for a term not less than one year nor more than three years. Persons knowl SEC. 211. Any person who shall have in his possession any Ingly holding fraudulent ren falsely made, altered, forged or counterfeit poll book, tally list tuisrned. ho or election returns of any election in this Territory, authorized by law or held under any semblance or pretence of law, knowing the same to be falsely Inade, altered, forged or counterfeited, with intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and, Ca. 33.] CRIMES AND PUNISHMENTS. 329 upon conviction thereof, shall be punished by imprisonment and hard labor, for a term not less than one year nor more than three years. SEC. 212. Any person or persons whomsoever, who may be Persons canvassing fraudulent authorized by law or any semblance or pretense of law, to re- returns with intent to deceive, ceive, canvass or count the poll books or tally lists or election how punished. returns of any election held under law or any semblance or pretense of law, who shall willfully and knowingly receive, canvass and count any poll books, tally lists or election returns, which are fraudulent, forged or counterfeited, or shall falsely and fraudulently count and cast up any poll books, tally lists, election returns or votes, with intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and, upon conviction thereof;, shall be punished by imprisonment and hard labor, for a term not less than two years nor more than five years. SEC. 213, Any person or persons authorized by law or by Knowingly granting certifiany semblance or pretense of law, to grant certificates of elec- cates of election,'3~~~~~~ ~~or declaring re. tion, or to declare, by proclamation or otherwise, the result of sultupon false returns, how any election, held under law or any semblance or pretense ofpunished. law, who shall grant such certificates or declare the result of such election, based upon fraudulent, fictitious or illegal votes, with intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and upon conviction thereof, shall be punished by imprisonment and hard labor, for a term not less than two years nor more than five years. SEe. 214. Any person!orpersons who shall knowingly and fen name falsely inscribed willfully inscribe or cause to be inscribed upon any poll book, on poll list, how tally list or election returns of any election, held under law, or under any semblance or pretense of law, the name of any person not entitled to vote or not voting, with intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and, upon conviction thereof, shall be punished by imprisonment and hard labor, for a term not less than one year nor more than two years. SEC. 21.5. Any person who shall subscribe or cause to beSubscribing to lalso roturns by subscribed his own name or any other name, as judge or Clerk judge or clerk, or forging of any election, to any falsely made, altered, fraudulent oror names of judgs counterfeited poll book, tally list or election returns, knowing returns, how the same to be falsely made, altered, fraudulent or counterfeited, with intent to hinder, prevent or defeat a fair expres 330 CRIMES AND PUNISHMENTS. [OCH, 33. sion of the popular will, shall be deemed guilty of felony, and, upon conviction thereof, shall be punished by imprisonment and hard labor, for a term not less than one year nor more than two years. Of Crimes against Public Miorals and Decency. Bigamy defined. SEC. 216. Every person, having a husband or wife living, who shall marry any other person, whether married or single, (except in the cases specified in the next section) shall, on How punished. conviction, be adjudged guilty of bigamy, and punished by confinement and hard labor, not exceeding five years, or in a county jail, not less than six months, or by fine, not less than five hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in the county jail, not less than three months. Caees excepted. SEC. 217. The last section shall not, by reason of any former marriage, extend to any person again marrying, in either of the following cases: First, Where the husband and wife, by such former marriage, shall have been absent for five successive years, without being known to such person to be living: Second, Where the husband or wife, by such former marriage, shall have been absent, and continually iernaining without the United States and their Territories, for five successive years: Third, Where such former marriage shall have been dissolved by legislative enactment or other competent anthority, and such person is not by law prohibited from again marrying, or the time of such disability has expired: Fourth, Where such former marriage shall have been declared void by competent authority: Fifth, Where such former marriage was contracted by such persons while under the age of legal consent. The age of legal consent, as intended by this act, shall be, of males, fifteen years, and of females, twelve years: Sixth, Where the husband or wife, by such former marriage, shall have been sentenced to confinement and hard labor for life. tcond marrieage SEC. 218. Every person having a husband or wife living, without the Territory, but co- who shall marry another person without this Territory, in any habitation within, adjudgedbig- case where such marriage would be punishable if contracted or solemnized within this Territory, and shall afterwards cohabit with such other person within this Territory, shall be adjudged guilty of bigamy, and punished in the same manner as if such second or subsequent marriage had taken place within this Territory. CH. 33.] CRIMES AND PUNISHMENTS. 331 SEC. 219. An indictment for bigamy, as defined in the pre- Where indictment may be ceding sections, may be found, and proceedings, trial, convic- fou.nd, and trial tion, judgment and execution thereon had, in the county in which such second or subsequent marriage or the cohabitation shall have taken place, or in the county in which the offender may be apprehended. SEC. 220. If any unmarried person shall knowingly marry Punishment on the party not the husband or wife of another, in any case where such hus- before married. band or wife would be punished according to the foregoing provisions, such person shall, upon conviction, be punished by confinement and hard labor, not exceeding five years, or in the county jail not exceeding six months, or by fine, not exceeding five hundred dollars, or by both such fine and ina prisonment. SEC. 221. Persons within the degrees of consanguinity, Incest,howpur,ished. within which marriages are by law declared to be incestuous and void, who shall intermarry with each other, or who shall commit adultery or fornication with each other, or who shall lewdly and lasciviously cohabit with each other, shall, upon conviction, be punished by confinement and hard labor, not exceeding seven years. SEC. 222. Every person who shall be convicted of the de- Crime against nature, punlishtestable and abominable crime against nature, committed with moen t. mankind or with beast, shall be punished by confinement and hard labor, not exceeding ten years. SEC. 223. Every person who shall live in a state of open Open and notorious adultery, and notorious adultery, and every man and woman (one or publi indecency, &c., how both of whom are married, and not to each other,) who shall punished. lewdly and lasciviously abide and cohabit with each other, and every person, married or unmarried, who shall be guilty of open, gross lewdness or lascivious behavior, or of any open and notorious act of public indecency, grossly scandalous, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding six months, or bv fine, not exceeding five hundred dollars, or by both such fine and imprisonment. SEc. 224. If any guardian of any white female, under the Fornication by guardian with age of eighteen years, or any other person, to whose care or his ward under eighteen, &c., protection any such female shall have been confided, shall de- how punished. file her by carnally knowing her, he shall, in cases not in this act otherwise provided for, be punished by confinement and hard labor, not less than two years, nor more than twenty-one 332 CRIMES AND PUNISHMENTS. [CH. 33. years, or by imprisonment in a county jail, not less than six months, and a fine, not exceeding one thousand dollars. Penalt,y on mli- SEC. 225. Every person who shall solemnize any marriage, emniziengmar- having knowledge of any fact which renders such marriage cases, criminal in either of the parties, under the preceding provisions of this act, or where either of the parties shall be under the age of legal consent, or where, to his knowledge, any other legal impediment exists to such marriage, shall, on conviction, be adjudged guilty of a misdemeanor, and be punished by imprisonment in a county jail, not exceedin g one year, or by fine, not less than five hundred dollars, or by both such fine and imprisonment. emovingfrdead SEC. 226. Every person who shall remove the dead body graves, how pun- or remains of any human being from the grave or other place ished. of interment or sepulcher, for the purpose of selling the same, or for the purpose of dissection, or any surgical or anatomical experiment or preparation, or from mere wantonness or mischief; shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding one year, or by fine, not exceeding five hundred dollars, or by both such fine and imprisonment. Receiving bod- SEC. 227. Every person who shall receive the dead body ies so removed. or remains of any human being, knowing the same to have been disinterred contrary to the provisions of the preceding section, shall, on conviction, be adjudged guilty of a misdemeanor, and punished as in that section specified. Opening graves SEC. 228. Every person who shall open the grave, or other with intent to remove, &c., place of interment or sepulcher, with the intent to remove the punishment. dead body or remains of any human being, for any of the purposes aforesaid, or to steal the coffin, or any vestment or other article, or any part thereof, interred with such body, shall, on conviction, be adjudged guilty of a misdemeanor, and punished as in the second preceding section is specified. Exceptions to SEC. 229. The provisions of the three last sections shall not three preceding sections. extend to any person who shall open a grave or other place of sepulcher or interment, or remove, sell or receive the body of any deceased person, for the purpose of dissection or some surgical or anatomical experiment, examination or preparation, with the knowledge and consent of the near relations of such deceased person, nor to the disinterment or removal, for such purpose, of the body of any criminal executed for crime. Sec. 230. Every person who shall set up or keep any table CH. 33.] CRIMES AND PUNISHMENTS. 333 or gambling device, commonly called A. B. C., faro bank, E. Setting up or keeping certaia 0., roulette, equality, or any kind of gambling table or gam-. gmblig tables bling device, adapted, devised and designed for the purpose of playing any game of chance, for money or property, and shall induce, entice, or permit any person to bet, or play at or upon any such gaming table or gambling device, or at or upon any game played at or by means. of such table or gambling device, or on the side or against the keeper thereof, shall, on conviction, be adjudged guilty of a misdemeanor, and punished byPunishment. imprisonment in a county jail, not exceeding one year, and by fine, not exceeding one thousand dollars. SEC. 231. Every person who shall bet any money or property Betting on such gaming table or upon any gaming table, bank or device, prohibited by the pre-device. ceding section, or at or upon any other gambling device, or who shall bet upon any game, played at or by means of any such gaming table or other gambling device, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by fine, not Punishment. exceeding one hundred dollars nor less than ten dollars. SEc. 232. Every person who shall permit any gaming table, Suffering devices bank or device, prohibited by the two hundred and thirtietha3oth seotion to be set up in any section, to be set up or used for the purpose of gaming in any house. house, building, shed, booth, shelter, lot or other premises, to him belonging or by him occupied, or of which he hath, at the time, the possession or control, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding five hundred dollars nor less than fifty dollars, or imprisonment Punishment. in a county jail, not exceeding six months, or by both such fine and imprisonment; and no person, otherwise competent as a witness, shall be disqualified from testifying, as a witness,witness not disqualified on the concerning the offences mentioned in the three preceding sec- ground of selfcrimination, but tions, on the ground that his testimony may criminate himself, such testimony not good against but such testimony shall be reduced to writing, and no indict- himself. ment or prosecution shall afterwards be brought against him for said offences concerning which he testifies as a witness. SEC. 233. Every person who shall set up or keep a common Keeping a common gaming or gaming house, or a bawdy house or brothel, shall, on conviction, bawdy house. be adjudged guilty of a misdemeanor, and be punished by fine Penalty. not exceeding one thousand dollars. SEC. 234. Every person who shall knowingly lease or let to Lorapng roset another any house or other building, for the purpose of settingforth in the four up or keeping therein any of the gaming tables, banks or de-ti0ns' vices prohibited by the preceding provisions, or for the purpose 22 334 CRIMES AND PUNISHMENTS. [CH. 33. of being used or kept as a gaming house, brothel or bawdy Penalty. house; shall, on conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail, not exceeding three months, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment. Who is deemed SEC. 235. Every person appearing, or acting as master or keeper of gaming tables, mistress, or having the care, use or management, for the time, houses and brothels. of any prohibited gaming table, bank or device, shall be deemed a keeper thereof; and every person who shall appear or act as master or mistress, or having the care or management of any house or building, in which any gaming table, bank or device is set up or kept, or of any gaming house, brothel or bawdy house, shall be deemed the keeper thereof. Lease of such SEC. 236. Whenever any lessee of any house or building houses declared forfeited. shall be convicted of suffering any prohibited gaming table, bank or device, to be set up, or kept or used therein, for the purpose of gaming, or of keeping in the same a bawdy house, brothel, or common gaming house, the lease or the agreement for letting such house or building shall become void, and the lessor may enter on the premises so let, and shall have the same remedies for the recovery thereof, as in the case of a tenant holding over his term. Participators in SEC. 237. No person shall be incapacitated or excused from such games compelled to testify, testifying, touching any offence committed by another, against but not against themselves, any of the foregoing provisions relating to gaming, by reason of his having betted or played at any of the prohibited games or gaming devices; but the testimony which may be given by such person shall in no case be used against him. Duty of judge or SEC. 238. Whenever any.judge or justice of the peace shall justice having knowledge of have knowledge, or shall receive satisfactory information, that gaming table within his coun- there is any prohibited gaming table or gambling device kept ty to issue war. rant. or used within his county, it shall be his duty forthwith to issue his warrant, directed to the sheriff or any constable, to seize and bring before said judge or justice such gaming table or other device. shall issue war- SEC. 239. If any judge or justice have knowledge, or shall rant to appre- bestse namnomd description the hend keepr, be satisfactorily informed, of the name or description of the when. keeper of any such prohibited gaming table or device, he shall also issue his warrant to apprehend such keeper, and bring him before such judge or justice. rower of officer SEC. 240. The officer who shall be charged with the execucharged with execution of tion of any warrant specified in either of the two last sections, such warrant. BCH. 33.] CRIMES AND PJNISIMENTS. 335 shall have power, if necessary, to break open doors for the purpose of executing the same, and for that purpose may summon to his aid the power of the county. SEc. 241. It shall be the duty of every judge or justice of Gamingtable to -be destroyed, the peace, before whom any such prohibited gaming table or how. device shall be brought, to cause the same to be publicly destroyed, by burning or otherwise. SEC. 242. Every person who shall bet or wager any money leteonr onhi or property, or other valuable thing, on the result of any ele- ited. tion, authorized by the constitution or laws of the United States or of this Territory, or on any vote to be given at such election, or who shall knowingly become stakeholder of any such bet or wager, shall be punished by fine not exceeding fifty Penalty. dollars. SEC. 243. Every person who shall willfully. maliciously, or Disturbanceof' public worship. contemptuously disquiet or disturb any congregation or assembly of people, met for religious worship, by making a noise, or by rude and indecent behavior, or profane discourse, within their place of worship, or so near to the same as to disturb the order or solemnity of the meeting, or menace or assault any person there being, shall be deemed guilty of a misdemeanor and punished by fine, not exceeding one hundred dollars; and, Penalty for. if unable to pay the fine, by confinement in the county jail, not exceeding three months. SEC. 244. Every person who shall erect or keep a booth, Keeping liqors or wines within tent, stall or other contrivance for the purpose of selling ora mile of camp meetings, how otherwise disposing of any wine, or spirituous or fermented punished. liquors, or any drink of which wine, spirituous or fermented liquors form a part, within one mile of any camp or field meeting for religious worship, during the time of holding such meeting, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding ten dollars. SEC. 245. Every person who shall either labor himself, orLaboringor compel his apprentice, servant or any other person under his or tPoellbog on charge or control, to labor or perform any work other thanSunday. the household offices of daily necessity, or other works of necessity or charity, on the first day of the week, commonlypen,alty called Sunday, shall be deemed guilty of a misdemeanor, and fined, not exceeding twenty-five dollars. L SEC. 246. The last section shall not extend to any person Except when who is a member of a religious society, by whom any other smeothe d"a than the first day of the week is observed as a Sabbath, so that bbath. 336 CRIMES AND PUTSiHMENT[. [EG. 33 he observes such Sabbath, nor to prohibit any ferryman from crossing passengers on any day in the week. Hor fighing, SEC. 247. Every person who shall be convicted of horserSundayig oracing, cock-fighting or playing at cards, or game of any kind, on the first day of the week, commonly called Sunday, shall Prenalty, be deemed guilty of a misdemeanor, and fined, not exceeding fifty dollars. Selling goods, SE. 248. Every person who shall expose to sale any goodsy keeping open tippling houses wares or merchandise, or shall keep open any ale, or porteron Sunday, punishment for, house, grocery or tippling-shop, or shall sell or retail any fermented or distilled liquor, on the first day of the week, commonly called Sunday, shall, bon conviction, be adjudged guilty of a misdemeanor, and fined, not exceeding fifty dollars. Selling drugs, SEc. 249. The last section shall not be construed to prevent medicines, &c., excepted. the sale of any drugs or medicines, provisions. or other articles of immediate necessity. Selling poisons SEC. 250. Every person who shall sell or deliver to any without labels, or to minors, t other, any arsenic, corrosive sublimate, prussic acid, or any authority from other substance or liquid usually denominated poisonous, withguardian or mas. ter, how punish- oUt having the word " poison " plainly written or printed on a ed, label attached to the vial, box, vessel or package containing the same; or who shall sell or deliver any tartar emetic, without having the true name written or printed on a label and attached to the vial, box, vessel or package containing the same, or who shall sell or deliver any such substance or liquid to any minor, without a written permission from the guardian of such minor, specifying the kind of drug that such minor is authorized to purchase, shall, on conviction, be adjudged guilty of a misdemeanor, and punished by fine, not exceeding fifty dollars. Practising phy- SEC. 251. So much of the preceding section as requires the quired to label, word l1 poison," or the name of the drug sold or delivered, to be labeled on the box, vial or other package containing the same, shall not extend to any practising physician who shall deliver any of the articles therein mentioned, with a prescription for the use of the article. Cruelty to ani- SEC. 252. Every person who shall maliciously and cruelly reals punished, maim, beat or torture any horse, ox or other cattle, whether belonging to himself or another, shall, on conviction, be adjudged guilty of a misdemeanor, and fined, not exceeding fifty dollars. Willfully breakX SEC. 2538. If any person shall willfully open, or read, or ing open any weithtutor. cause to be read, any sealed letter, not addressed to himself, ity, &c, GC. 33.] CRIMES AND PUNISHMENTS. 337 without authority to do so from the writer thereof, or from the person to whom it is addressed, he shall, on conviction, be adjudged guilty of a misdemeanor, and shall be punished by fine, How punished. not exceeding two hundred and fifty dollars, or by imprisonment in a county jail, not exceeding three months. SEC. 254. Every person who shall publish the whole or any Publishingr con part of the contents of such letter, without the authority of the So opened. writer thereof, or of the person to whom it is addressed, knowing the same to have been unlawfully opened, shall, on conviction, be adjudged guilty of a misdemeanor, and punished as in Punishment. the preceding section is specified. SEC. 255. The last two sections shall not extend to the break- Not to extend to certain cases. Ing open of letters which shall be punishable by the laws of the United States. SEC. 256. If any person shall run or cause to be run, upon cunnuingo horse, any public road or highway in common use in this Territory, li, highway, &c, any horse or horses, so as to interrupt travelers thereon, or put to fright the horses or other animals by them rode or driven, he shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by fine, not less than five nor more than twenty dollars. SEc. 257. If two or more persons shall run or cause to be Ru"nnispg horso -run a match horse race, in any public road in common use, for,ublc highways the purpose of trying the speed of their horses, every person for' so offending shall, upon conviction, be adjudged guilty of a.misdemeanor, and punished by fine, not less than five nor more than twenty dollars. SEX. 258. Every person who shall be convicted of any fel- Disqualifica ony, punishable under any of the provisions of this act, shall be thereafter disqualified from holding any office of honor, profit,or trust, or voting at any election, within this Territory. Of Offenees against the Public Peace. SEc. 259. That if three or more persons shall assemble to- nlagfshweugether with the intent to do any unlawful act, with force and ished. violence, against the person or property of another, or to do any unlawful act against the peace, or, being lawfully assembled, shall agree with each other to do any unlawful act aforesaid, shall make any movement or preparation therefor, the persons so offending, on conviction thereof, shall be fined in any sum not exceeding two hundred dollars. SEC. 260. That when three or more persons shall be as 338 RMMES AND PUNISHMENTS. [Cu. 3' Duty of oficers sembled as aforesaid and proceed to commit any of the ofin cases of un- ay awfulassemla-fences in the preceding [section] mentioned, it shall be the ges, upon actualt view or inforatioO'f"o' duty of all judges, justices of the peace, sheriffs and ministerial officers, immediately upon actual view, or as soon as may be on information, to make proclamation, in the hearing of such offenders, commanding them, in the name of the Territory of Kansas, to disperse and to depart to their several homes or lawful employments and if, upon such proclamation, such persons shall not disperse and depart as aforesaid, it shall be the duty of such judges, justices of the peace, sheriffs or any ministerial officers, respectively, to call upon persons near, and, if necessary, throughout the county, to aid and assist in dispersing and taking into custody, all persons assembled as aforesaid; and all military officers and others, called on as aforesaid, and refusing to render immediate assistance, shall each, upon conviction thereof, be fined in any sum not exceeding one hundred dollars. Of Miscellaneous Crinmes. Oflibel. SEc. 261. A libel is the malicious defamation of a persons, made public by any printing, writing, sign, picture, representtion or effigy, tending to provoke hinm to wrath, or expose himl to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends. Composing, dictating, circul- SEC. 262. Every person who makes or composes, dictates ing, publishing or procures the same to be done, or whio willfully publishes a libel, how putnished. or circulates such libels, or in any way, knowingly and willfully, aids or assists in making, publishing or circulating the same, shall be punished by imprisonment in the county jail, not more than one year, or by a fine, not exceeding one thousand dollars. Truth of thge SEC. 263. In all prosecutions or indictments for libel, the evidence. truth thereof may be given in evidence to the jury, and if it appears to them the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted. Publication nec- SEc. 264. No printing, writing or other thing, is a libel, essary to consti-. tute a libel. unless there has been a publication thereof. What is thei cpublication thereof. SECo. 265.. The delivery, selling, reading or otherwise com CH. 33.] CRIMES AND PUNISHMENTS. 339 municating a libel, or causing the same to be delivered, sold, read or otherwise communicated, to one or more persons, or to the party libeled, is a publication thereof. SEC. 266. In all indictments or prosecutions for libel, the Juryadteormite jury, after having received the direction of the court, shallfact. have the right to determine, at their discretion, the law and the fact. SEC. 267. That if any person shall knowingly sell anyselling diseased or unwholesome kind of diseased, corrupt or unwholesome provisions, whether provisionswithout notice, how for meat or drink, without making the same fully known to punished. the buyer, he shall be punished by imprisonment in the county jail, not more than six months, or by fine, not exceeding one hundred dollars. SEC. 268. If any person shall fraudulently adulterate, forAdulteration of food, wine, spirthe purpose of sale, any substance intended for food, or any fts or malt liquors, punishwine, spirit, malt liquor, or other liquor intended for drinking, ment for. with any substance injurious to health, he shall be punished by ilnprisonment in the county jail, not more than one year, or by fine, not exceeding three hundred dollars, and the articles so adulterated shall be forfeited and destroyed. SEC. 269. If any person shall fraudulently adulterate, forAdulteration of drugs punished the purpose of sale, any drug or medicine, in such a mannerby imprison-d as to render the same injurious to health, he shall be punished drugs destroyed. by imprisonment in the county jail, not more than one year, or by fine, not exceeding three hundred dollars, and such adulterated drugs and medicines shall be forfeited and destroyed. SEC. 270. If any person shall inoculate himself or any other Inooulption with Iperson, or shall suffer himself to be inoculated with the small intent to spread the disease, how pox, within this Territory, with intent to cause the prevalence "'ished, or spread of this infectious disease, he shall [be] punished by imprisonment in the state prison, not more than three years,:nor less than one year. SEC. 271. If any male person shall obtain illicit connection, Illicit connecunder promise of marriage, with any female of good repute, undertwentyone years of age, under twenty-one years of age, he shall be adjudged guilty of how punished. a misdemeanor, and shall be punished by fine, not exceeding three thousand dollars, or by imprisonment in the penitentiary not exceeding two years, or both such fine and imprisonment; Provided, that the testimony of the woman alone shall not be sufficient [evidence] of a contract of marriage. 340 CRIMEs AND PJuNISHMENTS. [CH. 33. General Provisions. Punishment for SEC. 272. Every person who shall attempt to commit an attempt to commit offence. offence prohibited by law, and, in such attempt, shall do any act towards the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: First, If the offence attempted to be committed be such as is punishable by the death of the offender, the person convicted of such attempt, shall be punished by confinement and hard labor not exceeding ten years: Second, If the offence so attempted, be punishable by confinement and hard labor, the person convicted of such attempt shall be punished by confinement and hard labor for a term not exceeding one-half of the longest time of imprisonment prescribed upon a conviction for the offence so attempted: Third, If the offence, so attempted, be punishable either by confinement and hard labor, or in a county jail, the person so convicted of such attempt, shall be punished by imprisonment in the county jail, not exceeding one year nor less than two months: Fourth, If the ofience, so attempted, be punishable by imprisonment in the county jail and fine, the offender, convicted of such attempt, may be punished by both imprisonment and fine, or either, not exceeding one-half the longest time of imprisonment, and one-half of the greatest fine which may be imposed upon a conviction for the offence so attempted: Fifth,- If the offence attempted be punishable by fine only, the offender, convicted of such attempt, shall be liable to a fine, not exceeding one-half of the greatest fine which may be imposed upon a conviction of the offence so attempted. Wnhen aditaem SEC. 273. No person shall be convicted of an assault with intent to commit a crime, or of any other attempt to commit any offence, when it shall appear that the crime intended or the offence attempted was perpetrated by such person at the time of such assault, or in pursuance of such attempt. Proceerdiongs SEC. 274. Every person who shall steal or obtain by robstealing in an- bery the property of another, in any other Territory, State or other state, &c. country, and shall bring the same into this Territory, may be convicted and punished for larceny in the same manner as if such property had been feloniously stolen or taken within CI. 33.] CRIMES AND PUNISHMENTS. 341 this Territory; and in any such cases, the larceny may be charged to have been committed, and may be indicted and punished in any county into or through which such stolen property shall have been brought. SEc. 275. Every person, prosecuted under the last section What defendant may plead a former conviction or acquittal for the same offence defence. in another Territory, State or country; and if such plea be admitted or established, it shall be a bar to any other or further proceedings against such person. SEc. 276. Every person who shall be a principal in the Pun.hemnt o f principals in tlhe second degree in the commission of any felony, or who shallsencond degree, and accessories be an accessory to any murder or other felony before the fact, before the fact. shall, upon conviction, be adjudged guilty of the offence in the same degree, and be punished in the same manner, as herein prescribed with respect to the principal in the first degree. SEC. 277. Every person who shall be convicted of having Who deernedac ceqsories after concealed any offender after the commission of any felony, or the fact, and how punished. of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, andno other, shall be deemed an accessory after the fact, and, upon conviction, shall be punished by confinement and hard labor, not exceeding five years, or in the county jail, not exceeding one year nor less than six months, or by fine, not less than four hundred dollars, or by both a fine, not less than one hundred dollars, and imprisonment in a county jail, not less than three months. SEC. 278. If any person convicted of any offence punisha- Punishment for second offences. ble by confinement and hard labor, or of petit larceny, or of any attempt to commit an offence which, if perpetrated, would be punishable by confinement and hard labor, shall be discharged either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offence committed after such pardon or discharge, he shall be punished as follows: First, If such subsequent offence be such that, upon a first conviction, the offender would be punishable by confinement and hard labor for life, or for a term which under this act might extend to confinement for life, then such person shall be punished by confinement and hard labor for life: Second, If such subsequent offence be such that, upon a first conviction, the offender would be punishable by impris 342 CRIMES AND PUNISHMENTS. [CE. 33. onment, for a limited term of years, then such person shall be punished by confinement and hard labor for the longest term prescribed upon a conviction for such first offence: Third, If such subsequent conviction be for petit larceny, or for an attempt to commit an offence which, if perpetrated, would be punishable by confinement and hard labor, the person convicted of such subsequent offence shall be punished by confinement and hard labor for a term not exceeding five years. Convicts in oth- SEC. 279. Every person who shall have been convicted in er States liable to punishment any of the United States, or in any district or Territory for second conicl'ton'. thereof, or in a foreign country, of an offence which, if committed in this Territory, would be punishable by the laws of this Territory, by confinement and hard labor, shall, upon conviction for any subsequent offence within this Territory, be subject to the punishment herein prescribed upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court of this Territory. Senteoncosof per- SEC. 280. When any person shall be convicted of two or sons convicted of two or moreof- more offences, before sentence shall have been pronounced upon him for either offence, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions. Whent maris- SEc. 281. Whenever any offender is declared by law puntndftolietimes; ishable, upon conviction, by confinement and hard labor for a never to be less than one year. term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; but no person shall, in any case be sentenced to confinement and hard labor for any term less than one year. No fine imposed SEC. 282. Whenever any offender is declared by law punwhen prisoner is senttoconfine. ishable, upon conviction, by confinement and hard labor, or nimet. by imprisonment in a county jail, or by fine, or by both such fine and imprisonment, it shall not be construed to authorize the imposition of a fine where the offender is sentenced to confinement and hard labor. imited in - SEC. 283. Whenever any offender is declared by law puntpa cases. Wow ishable, upon conviction, by confinement and hard labor, or provision. CHr. 33.] CRIMES AND PUNISHMENTS. 343 by imprisonment in a county jail, or by fine, or by both such fine and imprisonment, and no limit is fixed by law to the duration of imprisonment in the jail or to the fine, in such cases the convict shall, in no instance, be sentenced to a longer term of imprisonment in a county jail than twelve months, nor shall the fine, in any such case, exceed one thousand dollars. SEC. 284. Whenever any offence is declared by statute to Misdemeanors, how punished be a misdemeanor, and no punishment is prescribed by thatwhennnoother punishment is or any other statute, the offender shall be punished by impris- prescribed. ment ins a county jail not exceeding one year, or by fine not exceeding two hundred dollars, or by both such fine and imprisoment. SEC. 285. Upon indictment for any offence consisting of dif- De)fendant may' be convicted of a ferent degrees as prescribed by this act, the jury may find the less degree of the accused not guilty of the offence charged in the indictment, and may find him guilty of any degree of such offence inferior to that charged in the indictment, or of an attempt to commit such offence. SEEc 286. Upon conviction for any offence punishable by when no fine is preseribed, fine imprisonment in a county jail, in relation to which no fine is may be imposed by court. by law prescribed, a fine may be imposed upon the offender not exceeding one hundred dollars. SEc. 287. When a defendant shall be acquitted or con- Acquittal is a — ~~~ ~ bar to a prosecu. victed, upon any indictment, for any offence consisting ofe offti ence and different degrees, as specified in this act, he shall not ther'degree thereof. after be tried or convicted of a different degree of the same offence, nor for an attempt to commit the offence charged in the indictment, or any degree thereof, provided he could have been legally convicted of such degree of offence, or attempt to commit the same, under the first indictment. SEC. 288. When a defendant shall have been acquitted of a When defendant may be tried criminal charge, upon trial, on the ground of variance between again, when not. the indictment and the proof, or upon any exceptions to the form or substance of the indictment, or where he shall be convicted, but the judgment shall for any cause be arrested, he may be tried and convicted on a subsequent indictment for the same offence, or any degree thereof. SEC. 289. When a defendant shall have been acquitted Acquittal may be pleaded in upon a trial, on the merits and facts, and not on any ground bar, when. stated in the last section, he may plead such acquittal in bar to any subsequent accusation for the same offence, notwith 344 CRIMES AND PUNISHMENTS. [OH. 33. standing any defect, in form or substance, in the indictment upon which such acquittal was had. Minor convicts SEC. 290. Whenever any person, under the age of sixteen sentenced to county jail. years, shall be convicted of any felony, he shall be sentenced to imprisonment in a county jail not exceeding one year, instead of confinement and hard labor, as prescribed by the preceding provisions of this act. pended during SEC. 291. A sentence of confinement and hard labor for a imprisonment. term less than life, suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts, authority and power; and a person sentenced to such confinement for life, shall thereafter be deemed civilly dead. Personsofcon- SEC. 292. The person of a convict, sentenced to confinevicts protected from injury, &c. ment and hard labor, is under the protection of the law, and any injury to his person, not authorized by law, shall be punishable in the same manner as if he was not sentenced or convicted. Forfeiture of es. SEC. 293. [No conviction of any person, for any offence tates abolished. whatever, shall work corruption of blood, or any forfeiture of any estate, or any right or interest therein, and all forfeiture in cases of suicide or death by casualty, or where any person shall flee from justice, are abolished. How disabilities SEC. 294. Whenever a person shall be sentenced upon a may be removed. conviction for any offence, and is thereby, according to the provisions of this act, disqualified to be sworn as a witness or juror in any cause, or to vote at any election, or to hold any office of honor, profit, or trust within this Territory, such disabilities may be removed by a pardon by the governor, and not otherwise, except in the case in the next section mentioned. flow removed SEC. 295. If such convict shall have committed the offence from minor convicts. while within the age of sixteen years, and such conviction shall be for a first offence, all civil disabilities incurred shall be removed, and his competency restored at the expiration of the term of imprisonment to which he shall have been sentenced. Civil actions de- SEC. 296. In no case shall the right of action of any party, dlared not merged in a felony. injured by the commission of a felony, be deemed or adjudged to be merged in such felony, but he may recover the amount of damages sustained thereby, in an action to be brought before any court or tribunal of competent jurisdiction. Ci. 33.] CRIMES AND PUNISHMENTS. 345 SEC. 297. Whenever a fine, penalty, or forfeiture is or may Finesforfeit. be inflicted, by any statute of this Territory, for any offence, recovered. the same may be recovered by indictment, (except as in the next section is provided,) notwithstanding another or different remedy for the recovery of the same may be specified in the act imposing the fine, penalty, or forfeiture: Provided, that, in all cases, the fine, penalty, or forfeiture shall go to the Territory, county, corporation, person or persons to whom the act imposing the same declares it shall accrue. SEC. 298. Assaults and batteries are not indictable, buttA8saultsandbabt teries not indictshall be punished in a summary manner, before a justice ofable, &c the peace, in conformity to the act defining the jurisdiction and regulating the proceedings of justices' courts in cases of breaches of the peace. SEC. 299. The district courts shall have exclusive original Jurisdiction of district courts jurisdiction in all cases of felony, and of all offences not herein Jtides of the peace in declared expressly to be cognizable before a justice of the reni' case peace, and concurrent jurisdiction with the justices in the cases specially provided for by law. SEC. 300. The term "felony," when used in this act, or any Definition of tho other statute, shall be construed to mean any offence for which the offender, on conviction, shall be liable, by law, to be punished with death, or confinement and hard labor, and no other. SEC. 301. Whenever the term'"infamous crime" is usedDefinitionoftho term "infamous in this or any other statute, it shall be construed as meaning crime." every offence for which the offender, on conviction or sentence, is declared to be disqualified, or rendered incompetent to be a witness or juror, or to vote at any election, or to hold any office of honor, profit, or trust within this Territory. SEC. 302. The term "misdemeanor," as used in this or Defini"tion ofthe "term "misdeany other statute, shall be construed as including every offence meanor." punishable only by fine, or imprisonment in a county jail, or both, SEC. 303. The terms "crime,' "offence," and "criminal efintions of offence," when used in this or any other statute, shall be con- "crci," fstrued to mean any offence, as well misdemeanor as felony, fciminal offor which any punishment, by imprisonment or fine, or both, may by law be inflicted. SEc. 304. The term "personal property," as used in this constrauction of act, shall be construed to mean goods, chattels, effects, evi- ~olpr~p""ert 346 CRIMES AND PUNISHIMENTS. [Ci. 34. dences of right in action, and all written instruments, by which any pecuniary obligation, or any right or title to property, real or personal, shall be created, acknowledged, assigned, transferred, increased, defeated, discharged, or diminished. What theterm,, SEC. 305. The terms "real property" or "real estate," as "real property" includes. used in this act, include every estate, interest, and right in lands, tenements and hereditaments. What the term SEc. 306. The term "property," as used in this act, in"property" includes. eludes "personal property" and "real property," or "real estate," as defined in the two last sections. wheatthe tcrm SEC. 307. When the term "person" is used in this act to strued to mean designate the party whose property may be the subject of any offence, such term shall be construed to include the United States, this Territory, or any other Territorial government, State, or country, or county, or any other municipal, public, or private corporation, which may lawfully own any property within this Territory, as well as individuals. Persons with re- SEC. 308. Where any intent to injure, defraud, or cheat is spect to whom tenbtodchageud required by law to be shown in order to constitute an offence, it shall be sufficient if such intent be to injure, defraud, or cheat the United States, this Territory, or any State or country, or the government, or any public office thereof, or any county, city, town, or village, or any corporation, body politic, or private individual. SEc. 309. This act to take effect and be in force from and after the first day of June next. Approved February 3, 1859. CHAPTER XXXIV. (Acts of 1861, Chapter XXVII.) AN ACT defining and providing for the Punishment of certain Crimes therein named. Be it enacted by the Legislature of the State of Kansas: Person convic- SECTION 1. Every person who shall be convicted of treason ted of treason punished. against the State, shall suffer death. Misprison of SEC. 2. That misprison of treason shall consist in being a shall consist in. party to any treasonable purpose against this State, or in hav CH. 34.] CRIMES AND PUNISHMENTS. 347 ing and holding correspondence countenancing such treasonable purpose, with any person or persons who shall be engaged in setting the same upon foot against the State, or in having knowledge of the existence of a treasonable purpose, or of an act of treason against the State, and failing, speedily, to make the same known to the Governor of this State; and shall, upon Upon colviction conviction, be punished by confinement in the penitentiary for how punis not less than one nor more than ten years. SEC. 3. Any citizen of this State who shall join any society Person join any society to proor organization, the object of which shall be to produce an in- duce inesurreotion against this surrection, or to revolutionize the government of this State or State or U. S. Government. of the United States, or shall furnish arms or military stores [Ch. 117-1.] to the enemies of this State or of the United States, knowing them to be such, shall, upon conviction, be punished by confine- Upon conviction how puished. ment in the penitentiary for not less than one nor more thanhv punhed. ten years. SEc. 4. Any person who shall, within the limits of this State, whatconstitutes assist in raising the flag of any nation or body of men who are at war with this State or the United States, or shall wear any cockade, badge or device, intending thereby to show his sympathy with, or his adherence to the enemies of this State or of the United States, shall be deemed guilty of a misdemeanor, and, Punishnent of upon conviction before a justice of the peace, shall be punished by a fine of not less than twenty-five nor more than one hundred dollars. SEC. 5. Whenever either of the crimes described in the first Persons pay be, punished though second and third sections of this act shall be committed by a rommit tngthe citizen of this State, without the limits of the same, the person the State. charged therewith may be arrested, tried and punished in any county in this State, within the limits of which he may be found, and the offence may be charged to have been committed in the county in which he is arrested. SEC. 6. This act shall take effect and be in force from and after its publication, in some paper published at the capital of the State. Approved May 21, 1861. I hereby certify that the above bill became a law, by publication in the "Topeka State Record," June 12, 1861. J. W. ROBINSON, Secretary of State. 348 CRIMINAL COURT. [CH. 35. CHAPTER XXXV. (Acts of 1862.) AN ACT to establish a Criminal Court in Leavenworth County. Be it enacted by the LegislatuLre of the State of Kansas'ourt of record SECTION 1. That there be and hereby is established in the established in Leavenwortb county of Leavenworth a Court of Record, to be called the Criminal Court of Leavenworth county, which court shall adopt Shall adopt a seal. a seal, and shall have the same jurisdiction of all crimes and Shllll have sac e misdemeanors committed or triable in said county, and the same ju lrisdiction in riminallcasesa8 power to issue writs of habeas corpus, and to summon and emdistrict courts. pannel grand and petit juries in criminal cases as are now by law conferred upon the district courts of the State; and all laws pertaining to criminal matters in said district courts shall apply to the jurisdiction of, and proceedings in the court hereby created to the same extent that they now do to the district courts, and hereafter the district court shall have no criminal jurisdiction in said county. Probate judge to SEC. 2. The probate judge of Leavenworth county shall be bejudge of criminal court. the judge of the court hereby created, and for his services as such judge, shall receive from the Treasury of the State, an(ompensation. nually, the sum of five hundred dollars, and from the Treasury of Leavenworth county, annually, the sum of five hundred dollars to be paid quarterly, on the first day of January, April, July and October, and such judge shall not practice as an attorney at law, in any of the courts of the State during his continuance in office.,Judgenshalp SEC. 3. The judge of said criminal court shall appoint the point clerk. clerk thereof, who shall' hold his office for two years, and until his successor is appointed and qualified, and shall take a like oath and give a like bond as are now required by law of the clerk of the district court, and shall be entitled to receive the same fees as are allowed by law to the clerks of said district courts. Terms. SEC. 4. There shall be four terms of said court held in each year, in the city of Leavenworth, commencing respectively on the first Monday in February, June, August and December; Provided, that in the year 1862, a term shall be held commencing on the fourth Monday in March. ihebrif,. SEC. 5. The sheriff of Leavenworth county shall be the ministerial officer of said court, and shall by himself or deputy, Cn. 36.] COMMISSIONERS. 349 attend all its sittings, and at the expense of the county shall procure suitable rooms for the accommodation of said court. SEC. 6. All cases, recognizances, and proceedings of a crim- Cases and records to be transinal nature, pending in the district court of Leavenworth county ferred. at the time of the taking effect of this act, and all papers and records connected therewith shall be immediately transferred to the court hereby created, and shall be proceeded in, in the same manner as if originally commenced therein. SEC, 7. If from any cause, such as absence, sickness) inter- Judgepro tem. est, or having been of counsel in a cause or causes pending in said court, the judge thereof cannot sit in the trial, thereof, a judge pro temrn. shall be chosen or elected for the trial of such cause or causes, in the manner prescribed for the election or choice of a judge pro tern. under similar circumstances in the district court. SEC. 8. This act shall take effect and be in force from and after its publication, and immediately after its approval by the governor, the secretary of state shall cause the same to be published twice in some daily paper published in Leavenworth county, which shall constitute such publication.. Approved March 5, 1862. CHAPTER XXXVI. (Acts of 1859. Chapter XXIX.) AN ACT providing for the appointment of Commissioners to take Depositions in other Territories and States. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That the governor may appoint, in each of the commissioner to be appointed United States and Territories, and in the District of Columbia, in each State. one or more commissioners, to continue in office during the Tenure of office. pleasure of the governor for the time being; and every such Powers and ducommissioner shall have power to administer oaths, and to take tie' depositions and affidavits to be used in this Territory, and, also, to take the acknowledgment of deeds, powers of attorney or other instruments, to be recorded in this Territory. SEC. 2. All oaths administered by the said commissioners, Effect oftheir all affidavits and depositions taken by them, and all acknow-acts' ledgments aforesaid, certified by them,. shall be as effectual in 23 350 COMMISSIONERS. [CH. 37. law, to all intents and purposes, as if done and certified by any justice of the peace or other authorized officer within this Territory. To take oath. SEC. 3. Before any commissioners, appointed as aforesaid, shall proceed to perform any of the duties of their office, they shall take and subscribe an oath, before any justice of the peace or other officer authorized to administer oaths, in the State or Territory for which such commissioners may be appointed, that they will faithfully discharge all the duties of their office, which Oath filed with oath shall be filed in the office of the secretary of this Territory, Secretary of Territory. within six months after the taking of the same. SEC. 4. This act to take- effect and be in force from and after the first day of June next. Approved February 7, 1859. CHAPTER XXXVII. (Acts of 1861. Chapter XV.) AN ACT relating to Master Commissioners. Be it enaded by the Legislature ojf the State of Kansas: No master com-, SECTION 1. No Master Commissioner shall hereafter sell or missioner shall ell real estate. convey any real estate in this State, by virtue of any order, decree or judgment of any court of record. Sales shallbe, SEC. 2. All such sales and conveyances shall be made by the made by sherdff or constable. sheriff of the proper county, or hy the coroner, in such cases as the coroner is authorized to act in place of the sheriff. When and how SEC. 3. This act shall take effect from and after its publicate take effect. tion, and it shall be the duty of the Secretary of State to have the same published in one newspaper, printed in the city of Topeka, and to forward one copy to each of the clerks of the ler shall be several district courts of the State. I hereby certify that the above bill became a law, by publication in the "Topeka State Record," May 18th, 1861. J. W. ROBINSON, Secretary of State. Cu. 38.] CONTRACTS. 351 CHAPTER XXXVIII. (Acts of 1859, Chapter XXXVIII.) AN ACT regulating Contracts and Promises. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. All contracts which, by the common law, are ofointscojoint only, shall be construed to be joint and several. SEC. 2. In case of the death of one or more of the joint ob- Sirvives aginst ligors or promisors, the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligor or promisor, as well as against the survivors. SEC. 3. When all the obligors or promisors shall die, theSame. debt or contract shall survive against the heirs, executors and administrators of all the deceased joint obligors and promisors. SEC. 4. In all cases of joint obligations and joint assump- sitsmynsb tions of copartners or others, suits may be brought and prose- one or more. cuted against any one or more of those who are so liable. SEC. 5. The use of private seals in written contracts (ex- Priateseals cept the seals of corporations) is hereby abolished, and the addition of a private seal to an instrument of writing shall not affect its character in any respect. SEC. 6. All contracts in writing hereafter made and signed Written contract imports a by the party to the bond, or his authorized agent or attorney, consideration. shall import a consideration. SEC. 7. The want or the failure, in the whole or in part, of railroofcosnthe consideration of a written contract, may be shown as a fence. defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent and bona fide holder. SEC. S. When any person, bound as surety for another for Surety mayrequire principal the payment of money, or the performance of any other con- tobe sued. tract in writing, apprehends that his principal is about to become insolvent or to remove permanently from the Territory, without discharging the contract, if a right of action has accrued on the contract, he may, by writing require the creditor to sue upon the same, or to permit the surety to commence suit in such creditor's name and at the surety's cost. SEC. 9. If the creditor refuses to bring suit, or neglect so to Surety dischargdo for ten days after the request, and does not permit the fusre. surety so to do, and furnish him with a true copy of the con 352 CONTRACTS. [CH. 39. tract or other writing therefor, and enable him to have the use of the original, when requisite in such suit, the surety shall be discharged. Securitybysure. SEC. 10. When the surety commences such suit, he shall file $y for costs. his undertaking to pay such costs as may be adjudged against the creditor, and the suit shall be brought against all the obligors; but those joining in the request to the creditor, shall make no defense to the action, but may be heard on the assessment of the damages. To whom the SEC. 11. The provisions of this chapter extend to the execuprovisions extend. tor of a deceased surety, and to the executor, indorsee and assignee of the creditors, butlthey do not extend to the official bonds of public officers, executors or guardians. Approved February 9, 1859. CHAPTER XXXIX. (Acts of 1859, Chapter XXXIV.) AN ACT making valid Contracts for the sale of improvements on Public Lands. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. All contracts, promises, assumpsits or undertakings, either written or verbal, made in good faith and without fraud, collusion or circumvention, for the sale or purchase of improvements made on the lands owned by the Government of the United States, shall be deemed valid in law and equity; and may be sued for and recovered, as in other contracts. Deeds of quit- SEC. 2. Deeds of quit claim and other conveyance of imclaim for impraovefonents, at-provements upon public lands, shall be as binding and effec. tual in law and equity, between the parties, for conveying the title of the grantor in and to the same, as in cases where the grantor has the fee simple to the premises conveyed. SEC. 3. This act to take effect and be in force from and after the first day of June next. Approved February 9, 1859. CH. 40.] CONVENTIONS. 353 CHAPTER XL. (Acts of 1861, Chapter XVII.) AN ACT providing for Joint Conventions of the two Houses of the State Legislature. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That, whenever a concurrent resolution shall have been adopted by both Houses of the Legislature, fixing a time and place, and agreeing to go into a joint convention, the two Houses shall meet in joint convention for the election of United States Senators, or for the purpose of doing any other act that may be authorized by law. SEC. 2. That said joint convention, when assembled, shall Shall have power to do no othhave no power to perform any other act than that specified in eracts than.- ~ those specified. the concurrent resolution creating the same. SEC. 3. That, when the two Houses shall be assembled in How the convention shall be joint session, the President of the Senate shall preside, andpresided over. the Clerk of the House of Representatives and the Secretary of the Senate shall each keep a record of the proceedings of said convention; and on the reassembling of the two Houses in their respective Halls, it shall be the duty of said Clerk and Secretary to report the same to their respective Houses, and the same shall be entered at large upon their journals. SEC. 4. That the rules of the House of Representatives, The rules of the two houses shall and the joint rules of the two Houses, as far as the same may apply to convenbe applicable, and not in conflict with this act, shall be the rules for the government of said joint convention. SEC. 5. That all votes in said joint convention shall beVotes,howtaken taken by yeas and nays, and all elections shall be viva voce; Elections shall be viva voce. and, in taking the same, it shall be the duty of the Secretary of the Senate first to call the names of the members of the Senate, and, after which, the Clerk of the House of Representatives shall, in like manner, call the names of the members of How~votes shall the House; and each member of the Senate and the House of Representatives present shall be required to-vote on all questions and on all elections in said joint convention, unless excused by a vote of the convention. SEC. 6. That, to elect any person in said joint convention, A majorityto a majority, voting in the affirmative, of all the members elected to the two Houses, shall be necessary. SEC. 7. That, when a joint convention shall be assembled One person shallbe elected at a time. 354 CONVEYANCES. [On. 41. for the purpose of electing more than one person, the vote shall be so taken as to elect but one at a time. When to take SEC. 8. This act to take effect and be in force from and after effect. its publication. Approved May 7, 1861. CHAPTER XLI. (Acts of 1S59, Chapter XXX.) AN ACT regulating Conveyances. Be it enacted by the Governor and Legislative Assembly of the Territory of.Kansas: Who seized. SECTION 1. All persons owning lands not held by an adverse possession, shall be deemed to be seized and possessed of the same. Term "heirs" SEC. 2. The term "heirs" or other technical words of inhernot necessary. itance are not necessary to create and convey an estate in fee simple. What convey- SEC. 3. Every conveyance of real estate passes all the inance passes. terest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used. After acquired SEC. 4. Where a deed purports to convey a greater interest interest of gran- S,tor enures to than the grantor was at the time possessed of; any after acquired interest of such grantor, to the extent of that which the deed purports to convey, enures to the benefit of the grantee. Adverse posses- SEC. 5. Adverse possession of real property does not presion. vent any person from selling his interest in the same. Estates in fature SEC. 6. Estates may be created, to commence at a future day. Trust:estates. SEC. 7. Declarations or creations of trust or powers, in relation to real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law. Tenancy incom- SEC. 8. Conveyances to two or more, in their own right, create a tenancy in common, unless a contrary intent is expressed. Wives may con- SEC. 9. A married woman may convey her interest in the vey. same manner as other persons. Tenant at will. SEC. 10. Any person in the possession of real property, with CH. 41.] CONVEYANCES. 355 the assent of the owner, is presumed to be a tenant at will, unless the contrary is shown. SEc. 11. Thirty days' notice in writing is necessary to be Notice to quit. given by either party, before he can terminate a tenantry at will; but where, in any case, rent is reserved, payable at intervals of less than thirty days, the length of notice need not be greater than such interval between the days of payment. In' case of tenants occupying and cultivating farms, the notice Farm tenants. must fix the termination of the tenancy to take place on the first day of April. SEC. 12. In the absence of stipulations to the contrary, the PoOssssionunder mortgagor of real estate may retain the right of possession thereof; but, in case of personal property, the mortgagee shall hold the legal title and right of possession. SEc. 13. No instrument affecting real estate is of any val-,Strons to idity against subsequent purchasers for a valuable consideration, without notice, unless recorded in the office of the register of deeds, of the county in which the land lies, or in such other office as is or may be provided by law. SEC. 14. If acknowledged within the Territory, it must be AcknowIedgement, before before some court having a seal, or some judge, justice orwAhom.! And county clerk thereof, or some justice of the peace, notary public or lIerks. See acknowregister of deeds. hlegements, &c., SEC. 15. If acknowledged out of the Territory, it must be [And mayorS oh cities. See ch. before some court of record, or clerk or officer holding the seal4] of the Ter Out of the Territhereof, or before some commissioner to take the acknowledg- tory. ments of deeds, appointed by the Governor of this Territory, or before some notary public or justice of the peace. If taken before a justice of the peace, the acknowledgment shall be accompanied by a certificate of his official character, under the hand of the clerk of some court of record, to which the seal of said court shall be affixed. SEC. 16. The court or person taking the acknowledgment Crtificate of ac. must indorse upon the deed a certificate, setting forth the following particulars: First, The title of the court or person before whom the acknowledgment is taken: Second, That the person making the acknowledgment was personally known to at least one of the Judges of the court, or to the officer taking the acknowledgment, to be the identical person whose name is affixed to the deed as grantor, or that such identity was proved by at least one creditable witness (naming him): Third, That such person acknowledged the instrument to be his own voluntary act and deed. 356 CONVEYANCES. [CII. 41. Proof of execn- SEC. 17. If the grantor die before acknowledging the deed, tion, how and when. or if, for any other reason, his attendance cannot be procured, in order to make the acknowledgment, or if, having appeared, he refuses to acknowedge it, proof of the due execution and delivery of the deed may be made by any competent testimony. Before whom SEC. 18. Such proof may be made before the same court or proof taken. officer as are authorized to take acknowledgments as aforesaid. Certificateof SEC. 19. The certificate, indorsed by them upon the deed proof. thus proved, must state: First, The title of the court or officer taking the proof: Second, That it was satisfactorily proved that the grantor was dead, or that, for some other cause, his attendance could not be procured, in order to make the acknowledgment, or that, having appeared, he refused to acknowledge the deed: Third, The names of the witnesses by whom the proof was made, and that it was proved by them that the instrument was executed by the person whose name is thereunto subscribed as a party. Same. SEC. 20. The certificate of proof or acknowledgment, as aforesaid, may be given under seal or otherwise, according to the mode by which the courts or officers granting the same usually authenticate their most solemn and formal official acts. Penalty. SEC. 21. Any officer who knowingly states a material untruth, in either of the certificates above contemplated, may be indicted and fined, in any sum not exceeding the value of the property conveyed or otherwise affected by the instrument on which such certificate is endorsed. Subpoena. SEC. 22. Any court or officer having power to take the proof above contemplated, may issue the necessary subpoenas and compel the attendance of witnesses residing within the county by attachments, if necessary, Revocation of SEC. 23. No instrument containing a power to convey or in power must be recordod. any manner affect real estate, certified and recorded as above prescribed, can be revoked by an act of the parties by whom it was executed, until the instrument containing such revocation is acknowledged and deposited for record, and entered on the entry book, in the same office in which the instrument conferring the power is recorded. Instruments, SEC. 24. Every instrument in writing affecting real estate, when evidence. which is acknowledged or proved and certified as hereinbefore directed, may be read in evidence, without further proof. Record, when SEC. 25. The record of such instrument, or a duly authenevidence. CH. 42.] CONVEYANCES. 357 ticated copy thereof, is competent evidence whenever, by the party's own oath or otherwise, the original is shown to be lost, or not belonging to the party wishing to use the same, nor within his control; and, in such case, it is no objection to the record that no official seal is appended to the recorded acknowledgment thereof, if, when the acknowledgment purports to have been taken by an officer having an official seal, there be a statement in the certificate of acknowledgment that the same is made under his hand and seal of office, and the record show, by a scroll or otherwise, that there was such a seal, which will be presumptive evidence that the official seal was attached to the original certificate. SEC. 26. The provisions of the preceding section are in-Retrospective. tended to apply to all instruments heretofore recorded, as well as those hereafter to be recorded. SEC. 27. Neither the certificate nor the record, nor the Not conclusive. transcript thereof, is conclusive evidence of the fact therein stated. SEC. 28. Nothing herein contained shall invalidate any act Past acts. already done. SEC. 29. All acknowledgments of deeds and other instru-Records heretofore taken valid. ments of writing, for record in this Territory, which have already been taken by registers of deeds, with or without an impression of an official seal, are hereby recognized, confirmed and made valid. SEC, 30. This Act shall take effect and be in force from and after the first day of June next. Approved February 1, 1859. CHAPTER XLII. (Acts of 1862.) AN ACT to legalize certain Conveyances, made by L. C. Conery, Administrator of Harman Dace, deceased. Be it enacted by the Legislature of the State of Kansas: SECTION 1. The deeds of conveyance heretofore made by L. conveyances horetofore made C. Conery, Administrator of Harman Dace, deceased, in pur-confirmed. suance of an order of sale made by the Probate Court of Lykins county, at its April term, 1859, and at its March term, 1860, approved, are hereby declared in every respect to be legal conveyances, and to vest in the purchasers all the title 358 CONVICTS. [CIH. 43. and estate that could be conveyed by said Administrator by a strict compliance with an act approved February 3rd, 1859, entitled " An act respecting executors and administrators of their appointment and removal from office." SEC. 2. This act to take effect and be in force from and after its publication in the statute book. Approved February 10, 1862. CHAPTER XLIII. (Acts of 1859, Chapter XXXV.) AN ACT respecting Convicts. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Convicts shall SECTION 1. Every keeper of a jail or other public prison, be employed on public works. within this Territory, is hereby required to cause all convicts who may be confined in the prison of which he is the keeper, under sentence of confinement and hard labor, to work either on the streets, roads, public buildings or other public works of the Territory, or on some public works of the county in which such convicts may be imprisoned, or on private works, -as hereinafter specified; or, if there be no public works of the Territory on which to employ such convicts, or if the county wherein such convicts may be confined have no public works on which to employ such convicts, then such convicts may be employed on the public works of any other county in the Territory where there may be work to employ such convicts; or such convicts may be employed on the public works of any incorporate town or city within this Territory, either in the county in which such convicts may be confined, or in some other county in the Territory. Whconvicts under SEC. 2. Every person who may be sentenced by any court this act. of competent jurisdiction, under any law in force within this Territory, to punishment by confinement and hard labor, shall be deemed a convict, and shall immediately, under the charge of the keeper of such jail or public prison, or under the charge of such person as the keeper of such jail or public prison may select, [may] be put to hard labor, as in the first section of this How convicts se- act specified, and such keeper or other person, having charge cured while at work. of such convict, shall cause such convict, while engaged at such CH. 43.] CONVICTS. 359 labor, to be securely confined by a chain six feet in length, of not less than four-sixteenths nor more than three-eighths of an inch links, with a round ball of iron, of not less than four nor more than six inches in diameter, attached, which chain shall be securely fastened to the ankle of such convict with a strong lock and key, and such keeper or persons, having charge of such convict, may, if necessary, confine such convict, while so engaged at hard labor, by other chains or other means in his discretion, so as to keep such convict secure and prevent his escape; and when there shall be two or more convicts under the charge of such keeper or other persons, such convicts shall be fastened together by strong chains with strong locks and keys, during the time such convicts shall be engaged in hard labor, without the walls of any jail or prison. SEC. 3. Whenever any convict shall be employed at laborlPrice of convict labor. for any incorporate town or city, or any county, such town,,city or county shall pay into the county treasury the sum of fifty cents for each convict, for every day such convict shall be engaged at such labor; and whenever such convict shall be employed upon private hiring at labor, it shall be at such price, each, per day, as may be agreed upon with such keeper or other person having charge of such [convict,] and the proceeds of said labor shall be collected by such keeper and put into the county treasury. SEC. 4. All convicts sentenced to confinement and hard labor Convicts to be confined at shall, at night, and at all other times when not employed at night. Ujse of county jail free labor, be closely confined either in some jail or prison; and of charge. every county jail or other public prison in this Territory, shall be free for the use of any keeper or other person having charge of such convicts, for the confinement of such convicts; and the said keeper or other person having charge of such convicts, shall see that such convicts are securely kept, and may, in his discretion, release such convicts from their chains while closely confined in prison, provided a due precaution be observed to prevent escape. SEC. 5. The tribunal transacting county business for each County tribunal to provide for county, shall have a care over the security of all jails within convicts. their separate counties, and shall provide each jail with a suf-:ficiency of blankets to secure the comfort of all persons or convicts confined therein, and shall furnish each jail with one Bible for each prisoner or convict so confined. BSEC. 6. The keeper of every jail or public prison shall, when 360 CORPORATIONS. [CH. 44. Jhiloirto canmin ever it may become necessary, secure the services of a physiister or priest. cian for any prisoner or convict under his charge, and shall, at the request of any prisoner or convict, at any time, request the allowance of a minister or priest. To be sent to SEC. 7. So soon as a penitentiary shall have been erected in penitentiary, when. this Territory, all convicts who may be confined under the provisions of this act, shall, under the order of the district court of each county in which said convicts may be confined, be placed in charge of the keeper of such penitentiary, under and by virtue of the laws governing such penitentiary; which order of such district court, entered upon the records thereof, requiring the keeper of the county jail or prison to transfer all convicts under his charge, to the keeper of the penitentiary, certified under the seal of such [court,] shall be sufficient authority to such keeper of any such jail or prison to give up any such convicts, and to such keeper of the penitentiary to receive the same. This act to take effect and be in force from and after the first day of June next. Approved February 11, 1859. CHAPTER XLIV. (Acts of 1859, Chapter XXXVI.) AN AT to enable the Trustees of Colleges, Academies, Universities, and other Institutions, Societies, and Companies to become bodies corporate. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That any number of persons not less than five, designing to establish a college, university, or other institution for the purpose of promoting education, religion, morality, agriculture, manufacturing or the fine arts, may, by complying Anynumber of with the provisions of this act, become a body corporate and persons not less thn ive may be politic, with perpetual succession, and may assume a corporate incorporated under this act. name, by which they may sue and be sued, plead and be impleaded, in all courts of law and equity, may have a corporate Privilegesand seal, and the same alter or break at pleasure; may hold all powers. kinds of estate, real, personal or mixed, which they may acquire, by purchase, donation, devise or otherwise, necessary to accomplish the objects of the corporation, and the same to dispose of and convey at pleasure. SEC. 2. To ascertain the property and value thereof of any Cai. 44.] CORPORATIONS. 361 institution desirous of becoming a body corporate under the VaPeoofcoroprovisions of this act, it shall be the duty of the probate judge be appraised upon organization. of any county of this Territory, on application in writing of Dutyof probate any number of persons, of whom not less than five shall beJUdge. resident freeholders of the county where such application is made, and where such institution is or is intended to be located, setting forth the objects for which they desire to become incor- FreeholderS to be appraisers, porated, to select three judicious, disinterested freeholders ofwh shall be the county, and voters therein, as appraisers, who shall first take an oath for the faithful discharge of their duties, before some competent officer; and such appraisers shall then proceed to make a schedule, and, upon actual view, to appraise the true value in money of all such goods, chattels, lands and tenements, choses in action, rights, credits and subscriptions as such applicants shall exhibit to such appraisers, and shall return such schedule with their appraisement, and a certificate of some officer authorized to administer oaths, that such appraisers were first duly sworn by him to discharge their duties as such appraisers, to the probate judge of the proper county, and if certificateof probate judge to the amount so found shall be equal to the sum required for the be recorded. commencement of any such institution as said applicants desire, such probate judge shall give such applicants a certificate of the fact, and they shall enter it in a book of records, by them provided for that purpose, which, together with their corporate name, and'the articles of association, they shall also cause to be recorded in the recorder's office of the county where To be recorded in recorder's of. such institution is or is intended to be located, and they shall fice of county. thenceforward be a body corporate and politic, according to the provisions of this act; and such probate judge, appraisers and Fees. recorder, shall be entitled to the same fees as for like services in other cases, and no more. SEC. 3. The corporators of any college or university, which May have five trustees or more. may be organized in accordance with the provisions of this act, may elect five or more trustees, of whom not less than five shall be resident freeholders of the county where such college or university is located, who shall constitute a board of directors for such institution, and they shall have power to fill vacancies avepowerto that may occur in their board, and shall hold their offices until i vYacncies. their successors are elected and qualified according to the rules and by-laws that may be adopted by the board of trustees; but, at all times, at least five of such board of trustees shall be Fiveoftheboard resident freeholders of the county where such institution ismust at all times 362 CORPORATIONS. [COH. 44. be resident free-located; and when any such board, in their corporate name, holders of the county. shall have acquired, for the benefit of such institution, five thousand dollars in real and personal property, to be ascertained When to have as hereinbefore provided, said trustees shall have power to appower to appoint president, pro- point president, professors, tutors and teachers, and any other necessary agents and officers, and fix the compensation of each, May enact by- and may enact such by-laws, not inconsistent with the laws of laws this Territory or of the United States, for the government of the institution, and for conducting the affairs of the corporation, as they may deem necessary, and shall have power to confer, on the recommendation of the faculty, all such degrees and Confer degrees. honors as are conferred by colleges and universities of the United States, and such, having reference to the course of study and the accomplishment of the students, as they may deem proper. Failure to elect SEC. 4. In case it should happen that an election for directors directors not to dissolve compa- should not be held on the day appointed by the by-laws of any ny. institution or company formed under the provisions of this act, such corporation shall not, for that reason, be deemed to be dissolved, but it shall be lawful, on any other day, to hold a meeting and elect its directors, in such manner as shall be prescribed by the by-laws thereof. May hold prop- SEC. 5. The trustees of any university, college or academy, erty in trust. I may hold in trust any property devised, bequeathed or donated to such institution, upon any specific trust consistent with the objects of said corporation. President and SEC. 6. The president and professors shall constitute the professors to constitute facul-faculty in any literary college or university, instituted under the provisions of this act, and have power to enforce the rules and regulations enacted by the trustees for the government and discipline of the students, and to suspend and expel offenders, as may be deemed necessary. How academies SEC. 7. When any number of persons, not less than five, may be incorporated. shall have procured, by subscription, donation, devise, purchase or otherwise, the sum of five thousand dollars, for the purpose of establishing and sustaining any academy, such persons may Must register in adopt a corporate name, and enter the same in the recorder's the recorder's office their cor- office of the proper county, and proceed to the election of such porate name. May elect offi- officers and teachers as they may deem necessary, and in their cers and teachers. corporate name may sue and be sued, plead and be impleaded, in any court of law or equity of competent jurisdiction, and Powers and privileges. may have a corporate seal, may purchase and hold personal or CEO. 44.] CORPORATIONS. 363 real estate and dispose of the same at pleasure, and do all other acts and things necessary for the promotion of education and the general interests of such academy. SEC. 8. Any university, college or academy now instituted, Any university or academy now may come under the provisions of this act by complying with existing may come under the the requisitions herein contained, and all such institutions now provisions of this atct. in existence, or that may hereafter be established, may connect therewith, to be used as a part of their course of education, Their privileges. mechanical shops and machinery, or lands for agricultural purposes, not exceeding six hundred and forty acres, to which may be attached all necessary buildings for carrying on the mechanical! or agricultural operations of such institutions. SEC. 9. Any company which may be formed in pursuance of may increase capital stock or this act, or which may now exist by virtue of any special act chagne sit into of incorporation, the property of which is held as stock, and not derived by donation, gift, devise or gratuitous subscription, may increase its capital stock or change it into scholarships, when it becomes necessary for the purpose of carrying out the object for which such company or corporation is formed, in the following manner: The directors, for the time being, shall make Tho directors to out and sign a certificate, in which shall be set forth the amount amount and record it in the to which such capital stock is to be increased, and the object, county records. which certificate shall be deposited in the office of the recorder of the proper county, and be by him recorded in the same manner as the articles of association and corporate name, and by this act required to be recorded. SEC. 10. Before the capital stock of any such company shall Before increase, notice must be be increased, it shall be the duty of the directors to publish a published signed by a majnotice, signed by at least a majority of them, in a newspaper ority ofthe directors. of general circulation in the county in which said institution is located, at least four consecutive weeks, appointing a time and place for holding a meeting of the stockholders of said company, specifying the object of such meeting, and the amount to which it is proposed to increase the capital stock thereof, and a vote of at least two-thirds of the shares of the stock repre- vote oftwothirds of the sented at such meeting, shall be necessary to an increase of itshares of stock necessary to atcapital stock, and to authorize the directors to make and sign thorize increase. the certificate mentioned in the preceding section. SEC. 11. Any university, college, or academy that may be- Stockholders individually liable come a body corporate under the provisions of thi's act, the fordebti. property of which is not derived by donation, gift, devise, or subscription, but is owned by individuals in the shape of stock 364 CORPORATIONS. [COI. 44. subscribed or taken, the owners of said stock shall be individually liable for the debts of said corporation, to the amount of their said stock respectively, and also in a sum equal Trusteesshall thereto, over and above the amount of their stock. The trusnot contract debts beyondtho tees or directors of any corporation organized under the proactual means of the corporation. visions of this act, the property of which is not owned by individuals in the shape of stock subscribed or taken, but is held upon trust, or derived by devise, donation, gift, or subscription, shall not contract any indebtedness beyond the actual means or assets of said corporation, and if said trustees or directors contract debts or incur liabilities beyond the means or assets of said corporation, the trustees or directors Trustees person- so contracting shall be held liable, in their individual capacity, ally liable. for the payment of the same, but the property of said corporation shall first be exhausted. Name anyd bca- SEC. 12. Any college, university, or other institution of changed bya learning, now existing by virtue of an act of incorporation, sfourthsofthe or that may hereafter become incorporated for any of the purposes specified in this act, may, if three-fourths of the trustees or directors thereof deem the same proper, and if said institution is owned in shares, or by stock subscribed or taken, then by a vote of three-fourths of the stock or shareholders, change the location or name of such institution, convey its real estate, and transfer the effects thereof, and invest the same at the place to which such institution shall No changeor be removed: Provided, that no removal shall be ordered, and removal made,nlesspollic no vote taken thereon, or name changed, until after publicanotice given as required for in- tion in the same manner as herein required for the increase crease of capital stock. of capital, in which notice shall be fully set forth the change of name or location of the institution proposed to be changed in name or removal, and the place to which it is proposed to Copy of articles remove such institution: and, Provided, also, that in case of of association to be recorded in removal, a copy of the articles of association, with the corpothe county to which it is re- rate name of such institution, shall be recorded within the moved. recorder's office of the county to which such institution may be removed. Manner of in- SEC. 13. Whenever three or more persons desire to create corporating a college endow- a board of trustees, to become incorporated as the trustees of ment trust fund a college endowment fund, they shall do so in the following manner, to wit: Whenever, at any meeting, called for that Three members purpose, the said persons, at least three of whom shall be of Teresitory. rresidents of this Territory, not less than three in number as CIl. 44.] CORPORATIONs. 365 aforesaid, shall resolve to become a body politic and corporate, having a seal and a corporate name, whereby they may sue and be sued, in courts of justice in this Territory, they shall prepare a statement, setting forth the name by which they A statbement shall be called, the amount of said fund, and the manner in d showing amount of fund which, and the distinct uses to which, the said fund shall be audits uses. applied, whether within or without this Terrritory, together with the names of the persons who shall act as trustees, which statement must be subscribed by said statement shall be subscribed by all the persons com-n lL the parties, in presence of a posing said meeting, in the presence of some magistrate ormagistrate. judicial officer having a seal, who shall attest the signing theM ut be record. same, and be recorded in the office of the recorder of deeds recorderof deeds in the county where said meeting was held; and thereupon the persons named in said statement as trustees, and their successors in office, shall become a body corporate and politic for the purposes in said statement named and specified, and a certified copy of said record, under the hand and seal of the certified copy of record evidence recorder of said county, shall at all times be evidence of the of corporate existence. existence of said corporation. SEC. 14. That in any case, where, in the original statement change the fund in the thirteenth section provided for, it is contemplated that to oenr objec~t of education, ust apply to the fund may be applied to any object not inconsistent withJ'Udge of probate the purposes of education, different from that particularly "urt' specified in said statement, the trustees above named, or their successors in office, may apply to the probate court in thecounty where the record hereinbefore provided for was made, for privilege to make such change, designating particularly the purposes to which it is proposed to apply the same, and the said court, on being satisfied that such change is not inconsistent with the object of the original creation and institution of said fund, shall authorize and sanction said change. SEC. 15. That the said board of trustees and their successors horpor bate biodth in office shall be a body corporate and politic, with perpetual cerpetnaal uCsuccession, and they shall hold their offices for such terms, and shall receive their appointments in such manner, as shall be.Manner of holad designated in the statement on record in the office of the recorder of deeds, as hereinbefore provided by the thirteenth section of this act. To Create and Regulate Jagnetic Telegraph Companies. SEC. 16. That whenever the number of persons required by Telegraph com24 panies. 2i4 366 CORPORATIONs. [OC. 44. the first section of this act, associating to form a company, for the purpose of constructing any line or lines of magnetic Mannerofform- telegraph, they shall, under their hands and seals, make a ation. Name. certificate, which they shall specify as follows: First, The name assumed by such company, and by which it shall be Termini. known. Second, The termini of said line or lines, and the counties through which the same shall pass. Third, The Capitalstock, amount of capital stock necessary to construct said line or value of share. lines of telegraph, and the amount of each share. Such cerCertificate be- tificate shall be acknowledged before a justice of the peace, fore justice of peace. and certified by the clerk of the district court of said county, and shall be forwarded to the secretary of the Territory, who secretary ofTer- shall record and carefully preserve the same in his office; ritory keep rech.ord. and a copy thereof; duly certified by the secretary of the Territory. under the great seal of the Territory of Kansas, r-shall be eEvidenceofcor shall be evidence of the existence of such company; and porate existence. when so incorporated, are hereby authorized to construct a line or lines of magnetic telegraph, as may be named in their certificate of incorporation, and by the name and style provided in said certificate shall be deemed a body corporate, with succession, and they and their associates to have the same general powers as is provided in the first section of this act, and shall be subject to all the restrictions hereinafter provided. May open books. SEC. 17. The persons named in the certificate may, at any time, open the books of subscription to the capital stock of the company, and when at least ten per centum shall have been subscribed, they may call a meeting, by giving notice Thirty daysno-for thirty days in some newspaper, printed in each county through which such magnetic telegraph may pass, if a paper is published in each county, at which meeting there shall be Election of dia elected, by ballot, three directors, who shall continue in office rectors. until the first annual meeting of the stockholders thereafter. Anuaen,,ting SEC. 18. There shall be a meeting of the stockholders election of ofii- annually, at a place designated by said directors, when a president, three directors, a secretary and treasurer shall be chosen, who shall hold their office until the next annual election, and until their successors are duly chosen. The stockStockholders holders, at their annual meeting, may, from time to time, may adopt bylaw,. adopt such regulations and by-laws, for the management of the business of the company, as they may see proper, and may change, at any time, the time and place of holding the Cii. 44.] CORPORATIONS. 867 annual election. Special meetings of the stockholders maySpecialmeetings be called for the transaction of business by the directors. SEC. 19. The corporation hereby created is authorized to When created, authorized to construct said telegraph line or lines, from point to point, constrattel, e along and upon any of the public roads, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires: Provided, That the same shall not incommode the public in the use of said roads or highways. To Create and Regulate Gas Light and Water Companies. SEc. 20. That whenever any number of persons, as required as and water companies. by the first section of this act, associate to form gas light and water companies, for the purpose of supplying gas for lighting the streets and public and private buildings of any city, town, or village of this Territory, or for the purpose of supplying the inhabitants of any city, town, or village with water, they shall, under their hands and seals, make a certificate, which Certificate, spee ifications, &e. shall specify as follows: The name of said company, and by which it shall be known; the object for which such company shall be formed; the amount of capital stock of such company; the number of shares of which the said stock shall consist; and the names of the town, city, or village, and county in which the operations of such company are to be carried on. Such certificate shall be acknowledged, certified, and forwarded Ciertifhicate to be forwarded to the to the secretary of the Territory, recorded and copied, in the Secretary of the Territory, and same manner as is provided in the sixteenth section of thisrecordedbyhim~ act; and when so incorporated, they are hereby authorized to When authori zed to act, carry on the operations named in such certificate of incorporation, and by the name and style provided in such certificate, shall be deemed a body corporate, with succession, with power to sue and be sued, plead and be impleaded defend and bePowers and' privileges. defended, contract and be contracted with, acquire and convey, at pleasure, all such real and personal estate as may be necessary and convenient to carry into effect the objects of the incorporation, to make and use a common seal, and the same to alter at pleasure, and do all needful acts to carry into effect the object for which it was created; and such company shall possess all the powers, and be subject to all rules and restrictions, provided by this act. SEc. 21. That whenever ten per centum of the capitalbe chosen when stock shall be subscribed and paid into such company, said tcapialet onc corporators, or any of them, shall, in some newspaper pub-paidin 3868 CORPORATIONS. [O. 44;. lished in the county, give ten days' notice of the time and'ive directorsto place for holding a meeting for the election of five directors, and the election shall be made by the stockholders attending for such purpose, either personally or by proxy, and each.Each shareen- share of capital stock shall be entitled to one vote; said titled to one vote. election to be superintended by one or more of said corporators. One ofthem to SEC. 22. Thiere shall be a president of such company, who be president. shall be designated from the number of directors, and also such subordinate officers as the company, by its by-laws, may designate, who may be elected or appointed, and required to Officers to be give such security for the-faithful performance of the duties of required to give security. their office as the company, by its by-laws, may require; for which purpose such company shall have power, and are hereby Authorizedto authorized, to make such rules, regulations, and by-laws as make rules and by-laws. may be necessary for their regulation, not inconsistent with the laws of this Territory. Annual meeting SEC. 23. There shall be an annual meeting of the stockof stockholders for electing offi- holders, at a place designated by said directors, for the purpose ceLrs. of electing officers, who shall hold their offices until the next annual election, and until their successors are duly chosen. Said officers shall have the general superintendence of the affairs of the company, and the management of its business, and may call special meetings of the stockholders for the transaction of business. Have power to SEC. 24. Any gas or water company, formed under this lay gas and water pipe with act, shall have full powers to manufacture and sell, and to consent of city authorities. furnish such quantities of gas or water as may be required in the city, town, or village where located, for public or private buildings, or for other purposes, and such corporation shall have power to lay conductors, for conducting gas or water through the sfreets, lanes, alleys, and squares in such city, town, or village, with the consent of the municipal authorities of said city, town, or village, and under such reasonable regulations as they — may prescribe. Municipal au- SEc. 25. The municipal authorities of any city, town, or thorities author-. eed to contract. village, in which any gas light or water company shall be organized under this act, are hereby authorized to contract with any such corporation for the lighting or supplying with water the streets, lands, lanes, squares, and public places in any such city, town, or village. aJH. 44.] CORPORATIONs. 369 To Create and Regulate Bridge and Ferry Comipanies. SEc. 26. That whenever any number of persons, as named Bridge andferry in the first section of this act, associate themselves together omp for the purpose of constructing a bridge, or establishing a ferry, over any of the streams of water in this Territory, they shall, under their hands and seals, make a certificate specify- Certificatoof capital stock. ing the amount of capital stock necessary, the amount of each Designate place. share, the place where said bridge or ferry is to be built or established, and on what stream. Said certificate shall be acknowledged, certified, and forwarded to the secretary of the'When tcetifitcte Territory, recorded and copied as is provided in the sixteenth secretary of Tersection of this act, and when so incorporated, they are hereby corded by him, authorized to carry on the operations named in said certificate ized to act. of incorporation, and by the name and style provided in such certificate, shall be deemed a body corporate, with succession; and they and their associates, successors and assigns, shall owerowandiriivhave the same general corporate powers as are provided in the twentieth section of this act, and subject to all restrictions hereinafter provided; but, in all cases, the banks on bothBoth banks of stream must be sides of the stream, where the said bridge or ferry is to be owned by the company, or built or established, shall be owned by said company, or that consent obtainthey obtain, in writing, the consent of the owners of theio highway banks where the said bridge is to be erected, to erect the said bridge, or establish said ferry, as aforesaid, unless the said banks, at such point, shall be a public highway. SEC. 27. That the corporators herein named shall open the openbooks. books of the said company for subscription to the capital stock of said bridge or ferry, and so soon thereafter as ten per cent. of the capital shall be subscribed, they shall call a meet- Meeting of stockholders ing of the persons who have subscribed stock as aforesaid, and. when ten per cent. is subscribshall then and there proceed to elect five directors, who shall ed. To elect five dibe stockholders in said company, who shall hold their offices, rectors, who must be stockas directors, for one year from and after said election, and un- holders. til their successors are elected and qualified, one of whom shall be president, and one treasurer, and one secretary, to be One of whom named on the ticket when voted for by the stockholders as dent.. Also, treasurer and aforesaid. Each stockholder shall be entitled to one vote for secretary. each and every share of stock that he may own, and after- the gie ohe vote said election, no stockholder shall be entitled to a greater number of votes than the number of shares that he may have paid into the said company. 70 @IC0RPORATIONSE [Cii. 44. Treasurertogive SEc. 28. That the treasurer of the said company, before bond, entering upon the duties of his office, shall enter into a bond, with good and sufficient security, to be approved by the said board of directors, payable to the said company, conditioned for the faithful performance of all and singular the duties of said office, and that he will well and truly account for and pay over to the said company, all moneys and property that shall from time to time come into his hands by virtue of his said office, and that he will use due and proper diligence to collect all moneys and demands that from time to time shall be due and owing to the said company, which shall be his duty by law to collect. talies of pres- SEc. 29. The president shall preside at all meetings when blent. present, and not otherwise incapacitated, in which case, or in case of his absence, the board of directors shall choose a president from among their number, who shall perform the duties of the president at such meeting, and perform such other duties as may from time to time be pointed out by the by-laws and the rules of said company. Duties of secre- Sc. 30. The secretary shall keep a record of all meetings tary. of the board of directors and other proceedings of said comrn pany not required to be performed by any other officer of the said board, and perfori such other and further duties as may be assigned him, from time to time, by the rules and by-laws of the said company. ]ay alter by- SEC. 31. That the said company shall have power, from time laws. to time, at any regular meeting of the board of directors, to make, alter or change such by-laws and rules for the government of the said company. Rates of tollto SEC. 32, That the company previous to receiving any tolls be prescribed by county tribunal, -upon said bridge or ferry, shall set up and keep in a conspicand kept posted uo ai rg shl un consPicuous- us place, ol the said bridge or ferry, a board, on which shall be written, painted or printed, in a plain and legible manner, the rates of toll, which rates of toll shall have been prescribed by the tribunal transacting county business in said county; and if any company shall demand and receive any Penalty for re- greater rate of tolls than the rate prescribed by said tribunal, rwing greater they shall be subject to a fine of ten dollars. Compensationof SEC. 330 That the compensation of the president and other officers to be fixed by the by- officers of such company, shall be regulated and fixed by the laws. rules and by-laws of such company from time to time. Cia. 44.] CORPORATIONS. 371 To Create and Regulate Manufacturing Companies. SEC. 34, That whenever any number of persons, as named Manufaotrinog in the first section of this act, associate themselves together for the purpose of engaging in the business of manufacturing, they shall, under their hands and seals, make a certificate, spe- Make certificate specifying capicifying the amouint of capital stock necessary, the amount oftcl stock, place, each share, the name of the place where such manufacturing establishment shall be located, the name and style by which such company shall be known. Said certificate shall be acknowledged, certified and forwarded to the secretary of thelted witth the Territory, recorded and copied as is provided in the sixteenth sTerrittry to be recorded. section of this act; and when so incorporated, they are hereby When authoriauthorized to carry on the manufacturing operations named in zed to act said certificate of incorporation, and by the name and style provided in said certificate, shall be deemed a body corporate, Rpoweosdprivwith- succession, and they and their associates, successors and assigns, shall have the same general corporate powers as are provided in the twentieth section of this act, and subject to all the restrictions hereafter provided. SEC. 35. The annual meeting of the stockholders shall be Annual meeting of stockholders held on the first Monday of January in each year, at which to choosedirecmeeting the directors of the company shall be elected, and such other lawful business done, as the stockholders shall deem necessary and proper, and should they fail to elect directors at the annual meeting, they shall hold a special meeting at some Srpeciall meetings of stockholders. subsequent time, for the purpose by giving thirty days' notice Thirty days notice, how. thereof, in some newspaper of general circulation in such county. Thedirectors shall hold their offices until their successors are chosen and qualified; but no person shall be a director after ceasing to be a stockholder. Immediately after the election, the directors shall elect one of their number Direotorselect one of their president of the corporation, and may appoint such other offi- nmber president. cers and agents as they may deem proper, to transact their May appoint officers and fixbusiness, and prescribe the amount of compensation to becompensation. allowed to them for their services, and such officers, when required by the by-laws, shall give bonds to the satisfaction of O~fficers to gi':_ bond when rethe directors, for the faithful discharge of the trust committed to quired by the them, shall have power and are hereby authorized to make such rules, regulations and by-laws, as may be necessary for their Mamakeby regulation, not inconsistent with the organic act of this Ter 872 CORPORATIONS. [Ci. 44. Diretootrs m, y ritory. The directors shall have the general management of dispose of the residue of tock the affairs of the company, and may dispose of the residue of and have management of corn- the capital stock at any time remaining unsubscribed, in such pany under con- a so a trooldftock. manner as the stockholders for the time being may prescribe, and may employ the capital and means of the company in such manufactures as they shall deem best for the company, and for the erection and maintenance of such machinery, dams, buildings, races, water-courses, &c., subject always to the control of the stockholders, as may be necessary in the business of manufacturing, but for no other purpose than those connected with and pertaining to said business; they shall cause a record to be kept of all stock subscribed and transferred, and of all business transactions, and their books and records shall at all reasonable times be open to the inspection of any Record of stock and every stockholder; they shall also, when required, present and transfer to be kept. to the stockholders reports in writing of the situation and amount of business of the company, and declare and make Declare divi. such dividends of the profits from the business of the comdends. pany, not reducing the capital stock while they have outstanding liabilities, as they shall deem expedient. Who shall be SEC. 36. The persons named in the certificate of incorporacommissioners toopenbooks. tion, or a majority of them, shall be commissioners to open books for the subscription to the capital stock of said company, at such times and places as they shall deem proper, and the said company are authorized to commence operations upon the subscription of ten per cent. of said stock. To Provide for the Incorporation of Town Companies. Towncompanies SEC. 37. That when any number of persons, as named in the first section of this act, associate themselves together for the purpose of locating and laying out a town site and making improvements therein, they shall, under their hands and seals, Make certificate make a certificate, specifying the particular tract or tracts of specifying name, place, &c. land sought to be obtained as a town site, the name and style by which said company shall be known. Said certificate shall be acknowledged, certified and forwarded to the secretary of Certificate re- the Territory, recorded and copied as provided in the sixteenth oriedd in the of- section of this act; and when so incorporated, they are hereby fice of the seeretaryof the authorized to carry on the business and operations named in said certificate of incorporation, and by the name and style provided in said certificate, shall be deemed a body corporate, with succession, and they and their associates, succes CH. 44.] CORPORATIONS. 373 sors and assigns shall have the same general corporate powers Powers andprivas are provided in the twentieth section of this act, and subject to all the restrictions hereafter provided. To Provide for the incorporation of Religious and other Societies. SEc. 38. That from and after the passage of this act, it [See churches, ch. 45.] shall be lawful for any religious society or denomination, mili- Relgitous societies, military, tarv or fire company, or any literary, scientific, industrial or fire companies, may elect direcbenevolent association, (other than colleges, universities, acad- tors, how. emies or seminaries,) within this Territory, to elect, at a meeting of a majority of the members of any organized church, military or fire company, literary, industrial, scientific or benevolent association as aforesaid, called for that purpose, provided ten days' public notice has been given, any number of their members, not less than three, to' serve as trustees, directors or vestrymen, and one member as clerk, who shall hold. their offices for one yearior during the pleasure of the society or association. SEC. 39. That the clerk so appointed shall make a true re- Clerk to make record. cord of the proceedings of the meeting, provided for by the Proceedings.'n~~ - ~~And have them first section of this act, certify and deliver the same to the re- recorded in the office of the recorder of the county in which such meeting shall be held, to- corder of the county. gether with the name by which such church, military or fire company or association shall thereafter desire to be known. And it shall be the duty of each county recorder in this Ter- Duty of county recorder. ritory, immediately upon the receipt of such certified statement, to record the same in a book of record, to be kept by him, provided for that purpose at the expense of the county, for which service he may demand and receive the sum of ten Frees for recording. cents per hundred words; and from and after making such record by the county recorder, the said trustees or directors, and their associated members and successors, shall be vested with the powers, privileges and immunities incident to aggre. PowFersandprivgate corporations, and a certified transcript of the record eges' herein authorized to be made by the county recorder, shall be deemed and taken in all courts and places whatsoever, in this Evidence of exTerritory, as evidence of the existence of such association and ictepan of the corporation. SEC. 40. The trustees, directors or vestrymen, who may be Shall have perpetual succesappointed under the provisions of this act, and their succest sioel and may sue and be sued. sors is office, shall have perpetual succession by such name as 374 CORPORATIONS. [Ca, 44. may be designated, and by such name shall be legally capable of contracting and of prosecuting and defending suits, and shall have capacity to acquire, hold, enjoy, dispose of and convey all property, real or personal, which they may acquire by purchase, donation or otherwise, for the purpose of carrying out the intentions of such society or association, but they shall not acquire or hold property for any other purpose. Association may SEC. 41. That such congregation, society or association, elect its own officers, and when incorporated, may elect such officers, and make such rules and regulations as may be necessary and expedient for its own government and the management of its fiscal and other affairs, to effect their respective objects. Yacancies, how SEC. 42. That if said board of trustees, directors or vestryfilled. men, as is provided by the thirty-sixth section of this act, shall be vacated, either in whole or in part, by death, resignation or otherwise, such board of trustees or directors;nay be revived, or such vacancy or vacancies filled, in the manner pointed out in the thirty-sixth section of this act, for the original organization of said board; and a majority of said Quorum. trustees, directors or vestrymen, shall be a quorum for the Timeextended transaction of business. The times fixed by law in the acts twelve months for coporations of the Legislative Assembly, creating corporations at its sescreated in 1858 to complete or- sion for the year 1858, within which advantage of the provisganization. ions of such acts shall be taken, are hereby extended twelve months beyond the time so fixed. General Provisions Regulating Incorporated Companies. Who may accept SEC. 43. All companies now incorporated in this Territory, the provisions of this act. and actually doing business, may accept any of the provisions of this act, and when so accepted, and a certified copy of their acceptance filed with the secretary of the Territory, that porPrivilegesincon- tion of their charters inconsistent with the provisions of this sistent with this act repealed. act is hereby repealed. Publication of SEC. 44. All companies hereafter incorporated, or accepting annual statementrequired. the provisions of this act, except those named in the thirtysixth section, are required to make and publish, in a newspaper of general circulation in the county where the principal office is located, an annual exhibit, showing a full, fair and detailed statement of-the condition of said company, which statement shall be verified by the oath of the president, secretary or clerk. SEc. 45. No company or association, incorporated under the CH. 44.] CORPORATIONS. 875 provisions of this act, shall employ its stock, means, assets or,eans not to be other property, directly or indirectly, for any other purpose purposes whatever, than to accomplish the legitimate objects of its creation. SEc. 46. That the board of directors or trustees of any corn-, doction of pany, heretofore incorporated, or which may hereafter be formed under any law of this Territory, may, with the written consent of the persons in whose name a majority of the shares of the capital stock thereof shall stand on the books of the company, reduce the amount of said capital stock, and the nominal value of the shares thereof, and issue certificates therefor: Provided, That the rights of creditors shall not be affected or in any wise impaired, by the reduction of the capital stock of any such corporation. SEC. 47. That whenever any joint stock company heretofore Joint stoek companies for public incorporated, for the purpose of erecting any public improve. improvements ment in this Territory, whose charter is limited as to the time ther time, when. for completion of said improvement, and when any such company has been legally organized, and has actually commenced, and has in progress toward completion such public improvement, it shall be lawful for any such company to have further time allowed for the final completion of said work, as is hereinafter provided. SEC. 48. That, upon petition being filed by the directors Of Mannerofapplication for extenany corporation in the probate court of the county in which sion of time. the principal office of such corporation is located, and upon giving thirty days' notice by publication, in a newspaper of general circulation in said county, of the object and prayer of such petition, said court shall at any regular term after the publication of said notice, on good cause shown, decree the extension of the time for the completion of said improvement, to such period as shall appear to such court just and reasonable. SEC. 49. That the name of any corporation may be changed Name chauged, how. in the same manner as is provided for the -extension of the time of the completion of any public improvement in the preceding section, and in case the name of any corporation is changed, as aforesaid, a copy of the decree, shall be filed with the secretary A copy of the decree changing of the Territory, or in the office of county recorder, if the cor- the name to be filed with the poration whose name is so changed, be of the class organized secretary of the Territory. under the thirty-sixth section of this act, and also published in some newspaper of general circulation in the county aforesaid. When the provisions aforesaid have been complied with, such 376 CORPORATIONS. LCH. 44. known byi be company shall thereafter be known by such new name, and shall tonew naffec; existing have all the powers and be subject to the sae restrictions, as rights or obliga- if no such change of name had been made, and no such change of name shall effect in any manner the rights of such company, or of any individual. Any joint stock company organized under the provisions of this act, shall be deemed and held liable to an amount equal to their stock subscribed, in addition to said stock, for the purpose of securing the creditors of such company, and the trustees or directors of every society or association, incorporated under the provisions of the thirty-sixth section of this act, shall be deemed and held individually liable for all debts contracted by them for their respective societies or associations. Suitsagainst SEC. 50. Suits may be brought against corporations in the corporations, how brought, same manner as against individuals, and service shall be made on the president, directors, secretary or agent, in person or by leaving a copy at the principal office of such company, and in making such service, the sheriff and constable are authorized to make service without as well as within their respective counties, and the real and personal property of corporations shall be liable to execution as other property. Officers to be SEC. 51. All officers of any incorporated company, organresidents of the Territory. ized under the provisions of this act, shall be residents of this Territory, and whenever any company, association or society, heretofore or hereafter incorporated, shall have failed to elect its officers at the time designated, it shall be lawful for such Election of di- company, association or society to call a meeting and elect its rectors. officers, who shall hold their respective offices until the time specified for the annual, or other fixed time for holding such elections; and whenever any incorporated company heretofore organized, or that may hereafter be organized under the provisions of this act, shall have a specified time fixed for its anChange of time nual meeting, a majority of the stockholders in interest, may, of annual inmeeting. at any regular annual meeting, change the time of the annual meeting thereof. Appropriation of Private Property for the use of Corporations. Appropriation SEC. 592. All appropriations of private property to the use of of private property for corpo- any and every corporation now existing, or that may hereafter rate uses. V be created in this Territory, which may be authorized by law to make such appropriation, for the right of way, or for any CmH. 44.] CORPORATIONS. 377 other purpose which may be within the scope of the legal authority of such corporation, shall be made and conducted in accordance with the provisions of this act. SEC. 53. Whenever any such corporation shall wish to make When unable to agree with ownany such appropriation, and shall be unable to agree with the er. owner or owners of the property sought to be appropriated, or with his or her or their authorized agent or attorney, upon the compensation to be paid therefor, it shall be the duty of such corporation, by its proper officer, agent or attorney, to make out a statement, which shall contain a specific description of each parcel of property and rights sought to be appropriated, within the county where such application shall be made, and which such corporation, at the time of -filing such statement, seeks to appropriate, of the work, if any, intended to be constructed thereupon, the name or names of the owners of each parcel, if known, or if not, a statement of the fact; and such statement shall be forthwith filed with the probate judge of the proper county. SEC. 54. That it shall be the duty of the probate judge, on Duty of probate receiving such notice, to immediately notify the clerk of the court and sheriff of the county, of the filing of such statement, and the clerk and sheriff, shall, within one day [after] receiving Jury selected and summoned such notice, proceed to select, from the names returned, to serve by clerk and sheriff. as jurors, a jury of twelve men, in the same manner that jurors are selected for the trial of any cause, in the probate court, for the purpose of estimating and valuing the amount of compensation each owner or owners shall receive, or be entitled- to by reason of such appropriation; and the clerk shall immediately return the names of jurors, so drawn, to the probate judge, who shall thereupon issue his venire facias to the sheriff, or other proper officer of the county, to summon such jurors, so drawn as aforesaid, to attend, on some day specified, at the office of said judge, not exceeding five days from the issuing of said ye- Jury to attend within live days. nire, then and there to be empanneled and sworn to render a just verdict in the manner hereinafter prescribed, and shall, at the time of issuing such venire, issue a notice, to the several Noticeto ownowners of property so sought to be appropriated, of the time when such jury will meet at the office of said judge, for the purpose aforesaid; which notice such sheriff or other officer shall serve upon the party therein named at the time of serving such venire. SEC. 55. It shall be the duty of the sheriff, or other proper 378 CORPORATIONS. [CH. 44. Sheriff to sum- officer receiving such venire facias, to summon the persons mon owners. therein named, in the same manner that jurors are summoned If jury not full, to attend the probate court, and if, by reason of non-attendance, how supplied. challenge for cause, or for any other reason, such jury shall not be full, the sheriff shall fill the same with talesmen,'as in like Challenge for cause only. cases in the probate court; but no challenge, except for cause, shall be allowed to either party. Oath to jury. SEC. 56. When the panel is so filled, it shall be the duty of the probate judge to administer the following oath to the jury so impanneled, to-wit: "You and each of you do solemnly swear, (or affirm,) that you will justly and impartially assess, according to your bestjudgment, the damages, in money, which (here name the owner or owners) will each sustain by reason of the appropriation of such property to the use of, (here repeat the name of the corporation,) in the proceedings now pending, and you do further swear, (or affirm,) that you will truly, faithfully and impartially estimate and assess the amount of such compensation, irrespective of any benefit to him from any improvement proposed by said corporation. This you swear as you shall answer to God, (or affirm,) under the pains and penJuodge shall ques-oalties of perjury." And the said probate judge, before admintheir interest. istering such oath or affirmation, shall personally inquire of each juror whether he is interested in such corporation, whether as owner, stockholder, agent or attorney, or in any other manner and if any juror shall answer such question in the affirmaWhen jurors ex-tive, such juror shall be excused from serving, and the panel cused. shall be filled with talesmen, by the sheriff, as in other cases. Juries to be con- SEC. 57. It shall be lawful for the probate judge, upon moducted to the prmises by a tion of either party. to issue the following writ to the sheriff or sworn officer. other proper officer, to-wit: " To the sheriff of county: You are hereby commanded to conduct the twelve jurors, named in the panel to this writ annexed, to view the property or premises sought to be appropriated by, (here state the name of the corporation,) and owned by, (here state the name of the owner or owners,) on -, the - day of a, then and there to view the premises or property aforesaid, in the presence of A. B., on the part of the corporation aforesaid, and C. D., on the part of the owner or owners appointed by this court, and you shall make return of the manner you have executed this writ, to this court, on the day of -, A. D.~, -, and have you, then and there, this writ." The aforesaid shall be signed by the probate judge, and certified under CH. 44.] CORPORATIONS. 379 his seal of office, and he shall also deliver to the sheriff a copy Judge shallcertify to officer's of the statement containing a separate description of each par- stcabient d e, cel of property and rights, sought to be appropriated within the cl of property county; and he shall have the power to appoint the two persons therein named; and the sheriff or other proper officer who Sheriff shall certify that the is to execute said writ, shall, by a special return upon the same, vie on then certify, under his hand, that the view has been made according writ. to the command thereof. The expenses of taking said view costs. shall be taxed in the bill of costs, and no evidence shall beNo evideknc givgiven, on either side, at the taking thereof: Provided, That view o~fproperty. witnesses may be examined before said jury, after their return witnest.es examto the court aforesaid, and the trial, in each case, shall be con -turn of jury. ducted thereafter, in said probate court, in the same manner that the trial of civil cases is conducted in the supreme court of the district in which said proceeding is had: Provided, That if more than three witnesses are examined by either party, on sts of more than three witthe same point, in the same case, the said probate judge shall nesses taxed to paity calling have power to tax the fees and costs of such witnesses to the same. party calling the same. SEC. 58. If the owner or owners, or his, her or theirw here owners -n~~ ~ are unknownll. guardian, as the case may be, are unknown, and do not reside within the county where such property may be situated, such corporation, by its proper officer, authorized agent or attorney, shall make affidavit to that fact, and shall, nevertheless, file such statements as are required by the fifty-second section of this act, in the probate court, and shall also publish, in some newspaper Publication of same for four of general circulation in such county, for the term of four weeks, weeks. an advertisement containing a description of the property sought to be appropriated, and a notice that they have made application, according to law, for such appropriation, specifying the day, which shall be within ten days from the expiration Time of trial within ten days of said term of four weeks, in which a jury shall be selected to from expiration of the publicaassess the compensation to be paid therefor; and, upon suchtion. day, a jury shall be impanneled and sworn by the probate judge, and the proceedings shall thereafter be conducted in accordance with the foregoing provisions of this act. SEC. 59. The jurors, summoned and serving in accordance ree" ofjrors. with the provisions of this act, shall each receive one dollar per day for their services, and five cents per mile for every mile of the distance tihey may be compelled to travel in the discharge of their duties:; the sheriff shall be entitled to such fees as he Fees of slherff. 380 CORPORATIONS. [(C. 44. may be allowed, by law, for similar services in other cases, but he shall not be allowed anything in the way of poundage; the esof itness- witnesses shall be allowed the same fees to which they would be entitled for attendance on the supreme court; the probate Coststo be paid judge shall be allowed to enter a charge of three dollars, in the by corporation. caeoteih costs of the bill, for his services, and no more; and the whole costs, so taxed, shall be paid by the corporation seeking to Corporation make such appropriation: Provided, That such corporation, by may make depositwithjudge, its proper oficer, agent or attorne y, at the time of filing and if verdict atre does not exceed the statement aforesaid with the probate judge, deposit with the deposit, costs to be divided said officer such amount, in money, as they may deem just and equitable compensation for the property and rights sought to be appropriated, and if the final verdict of the jury shall not exceed the amount so deposited, the whole costs of the proceedings shall be equally divided between the corporation and the owner of such property, in case of his refusal to accept the same. Proceedings SEC. 60. All the proceedings herein provided for in the proopen to exception; how tak- bate court, shall be open to exceptions, in the same manner en. that exceptions are or may be taken in'civil suits in the district court, and either party may take the same up to the district court of the proper district, on a writ of certiorari, which shall be issued, of course, by the clerk thereof, upon the filing of a precipe, in which case such exceptions, signed and sealed by the probate judge, shall be taken and considered a part of the record of such proceedings: Provided, That such writ To be taken within fifteen of certiorari shall be issued within fifteen days from the ren-'days. dition of the judgment in the probate court: Provided, That Corporation on such corporation shall have the right, on the finding of the finding of jury to py idton jury in the probate court, to pay into the court the amount of court and enter upon the prop- compensation so found, and proceed to enter upon and appropriate such property, notwithstanding the cause may be removed to the district court. If judgment of SEc. 61. If the district court, upon the hearing of the cause, probate court affirmed, costs to shall affirm the judgment of the probate court, all costs in said be paid by the party appealing. district court shall be paid by the party at whose instance the If decision re- writ of certiorari shall have been issued; and, if they shall reversed, cause retained for trial. verse such judgment, they shall retain such cause for trial and final judgment in said district court, as in other cases, which trial shall be had at the term of the renewal of such original judgment, unless, for good cause shown by either party, the Cm. 44.] CORPORATIONS. 381 court shall grant a continuance of such cause; and on the trial Continuanoe of such cause in the district court, the same oath or afflrmation Co"s. shall be administered to the jury, as is provided for in the fifty-sixth section of this act. SEC. 62. The jury shall render their verdict to the judge of V'eredi on mjur utes, unless new said court, who shall enter the same on his minutes: and, un-trial granted. less for good reason shown, the court shall grant a new trial, the judge: shall enter on record a confirmation of the verdict so rendered, and upon- the payment of the amount for which the verdict is rendered, and such costs as may be assessed, theC~erJhlelnrent court shall render a judgment to the effect that the said cor- the amount with poration shall hold the property in the proceedings mentioned, ation stthatll for the purposes for which the same was appropriated, and erty.he prop enter the same upon record, and thereupon such corporation shall hold the same accordingly, and be entitled to execution, to put them in possession thereof: Provided, That, if upon certiorari or a new trial there shall be a second assessment, uponesanew trial which shall exceed in amount the first made, the corporation to owner. shall pay the excess to the owner of such property; and the probate judge receiving the amount so first decided to be due, shall retain the same in case a writ of certiorari shall issue or a new writ of trial be granted; and, if the verdict of the second jury shall be less than that of the first, he shall repay to such corporation the difference upon the final disposition of the cause: And provided, further, That in case a new trial shall New trial grant- ed at instance of be granted, at the instance of the owner or owners of the pro-owners; costs, how paid, perty, and the verdict of the second jury shall be the same as or less in amount than the first rendered, such owner shall pay the whole costs of the second proceeding, and if it shall be more than the first rendered, the costs of the second proceeding shall be paid by the -corporation. Sec. 63. The probate court shall have power to enforce the Powers of pro. judgment rendered finally in such cause, by execution, or otherwise. SEC. 64. That, in all cases where any railroad company al- Schoollands may be approready incorporated, or that may be hereafter incorporated priated by railroad companies. within this Territory, has located or shall hereafter locate their railroad through any part of reserved sections thirty-six or sixteen, or through any part of sections granted by Congress in lieu of section sixteen, for school purposes, (the same remaining unsold,) or through any town, lot or parcel of ground used 25 8382 CORPORATIONS. [CH. 44. for or devoted to school purposes, said railroad company may appropriate so much of said lands or lots as may be necessary for the purposes aforesaid, in such manner and upon such conditions as are provided by law in other cases, and notice of such appropriation, served on such trustees or school officers, shall have the same force and effect as notice in any other case to the owner of the land appropriated. MoneydSaispoinog SEC. 65. The moneys arising from such appropriations shall be disposed of by such trustees or school officers in such manner as shall be provided by law. When probate SEC. 66. That in any Case wherein the probate judge of any judge interested, mut notifythe county of this Territory shall be interested, either as a stockholder, director or otherwise, in any corporation seeking to appropriate private property to its use, it shall be the duty of said probate judge, on the filing of the statement or application provided for by the second section of this act, to certify to the district court of the proper district the fact that he is so interProceedings in ested as aforesaid, and then, and in that case, the proceedings district court when probate in said district court shall be had and conform, in all respects, Judge interested. so far as applicable, to the several provisions of this act; and all the powers conferred and duties imposed upon the probate judge by the terms of this act, shall devolve upon said district court; and said district court shall have full power to make such orders and direct such proceedings to be had, as may be necessary to do full justice between the parties, according to the true spirit and intent of this act: Provided, That either party shall have the right to appeal from the final judgment of said court, to the supreme court, as in other cases, or to have the proceedings of said district court reviewed on error: Provided, furthermore, That said corporation, seeking to appropriate property as aforesaid, may, on depositing the amount of damages and costs assessed by said district court with the clerk of said court, be entitled to enter into possession of the property sought to be appropriated. SEc. 67. This act to take effect and be in force from and after its passage, and all acts and parts of acts heretofore passed upon this subject are repealed. Approved February 9, 1859. CH. 45.] CORPORATIONSo 88 CHAPTER XLV. (Acts of 1862.) AN ACT to incorporate Churches. Be it enacted by the Legislature of the State of Kansas SECTION 1. That any three communicant members of any[se corpora. tions, ch. 44.1 church may call a public meeting of the church members, giv- Mceting, how ing at least eight days' public notice thereof, at which meeting Notice. a majority of the members of such church present, may, if they see fit, elect any number from one to five, of male communicant members of the church as a board of trustees, who Board of trus shall be and become a body corporate, with such corporateteoS name as they may adopt, with perpetual succession, and shall hold office until their successors are chosen; and may sue and Powers of. be sued in all courts of law or equity, and may, (subject to the regulations made by said church,) acquire, hold, convey, convey and dispose of all kinds of property for the use and benefit of such church: Provided, Such trustees shall not by virtue of Proviso. this act, or their office as' trustees, usurp or exercise any of the functions of the officers having charge of the spiritual affairs of the church. SEC. 2. In case of the death of a trustee, the title to, and f death of tru. tee. control of, such property shall vest in his associate or associates, and if he have no associate or associates, then the title and control of such property. shall vest in the church members until the election of his successor or successors, when such title and control shall vest in them. SEC. 3. The trustees thus incorporated shall be perpetual, byCorporation per elections of successors, in the manner hereinbefore named, and at such times as the rules of the church may prescribe, but a trustee may be removed, and his successor chosen, by a vote of two-thirds of the members of the church present at a business, meeting. SEC. 4. One of the trustees shall act as clerk of the board,OClerk,and affi" davit to be filed and shall: file, within one month after each election, at the office by him. of the register of deeds, of the county in which such church is situated, an affidavit setting forth the notice of the election, the election and the names of the trustees; which affidavit shall. be recorded in said office, and the record of which shall be. primmafacie evidence of the regular election and qualifications of such trustees. SEC. 5. This act to take effect and- be in force from and af-: ter its publication. Approved March 6, 1862. 384 CORPORATIONS. U[C. 46. CHAPTER XLVI. (Acts of 1862.),, AN ACT to incorporate Cities of the State of Kansas. Be it enacted by the Legislature of the State of Kansas: ARTICLE I. What cities to. SECTION 1. All cities or municipal corporations of not less be governed by this act. than seven thousand inhabitants, shall be governed by the provisions of this act. Vested rights to SEC. 2. All rights and privileges accrued under and by virbe preserved. tune of any act of the legislature of the Territory or of the State of Kansas, before the day on which this act shall take effect, are hereby preserved to those persons or corporations, to whom they may have accrued. Act repealed. - SEC. 3. All acts and parts of acts heretofore enacted by the legislature of the Territory or of the State of Kansas, in conflict with this act, saving rights and privileges accrued as in section second of this act set forth, are hereby repealed. Provided, That the recorder of such cities heretofore elected, and now in office, shall have, use, and exercises all powers, jurisdictions, and: authorities conferred by existing laws, until the term for which he has been elected shall have expired, and until the mayor, as provided in this act, shall have been elected and qualified. Powers, how to SEC. 4. The powers hereby granted shall be exercised by the be exercised. mayor and council of such city in the State of Kansas, as hereinafter set forth. Wards. SEC. 5. That each city or municipal corporation organized,under this act, shall be divided into four wards, respectively named the first, second, third and fourth wards, and each ward shall-contain as nearly as practicable, an area equal to each other. Corporate oname S-EC. 6. The corporate name of each city, or municipal inand style of pro0088. corporation, organized under this act, shall be' The City of -, of the State of Kansas," and all and every process or notice- whatever affecting any city, under this act, shall be served upon the mayor of said city, and in the absence of the mayor, upon the president or acting president of the council. City council. SEC. 7. The council of each city or municipal corporation organized under this act, shall consist of twelve citizens of said city, who shall be qualified electors under the provisions of the constitution of this State. 'Uu. 46.] CORPORATIONS. 385 SEC. 8. There shall be elected, at the time and in the man- City officers. ner hereinafter provided, for each city or municipal corporation organized under this act, a mayor, a treasurer, a clerk, a marshal, and eight councilmen. SEC. 9. On the first Monday in April of each year, an elec- General city elections and tion shall be held by the authorities of each city within the terms of office. meaning of this act, for mayor, treasurer, clerk, marshal, and eight councilmen, four of whom shall be elected for the term of one year, and until their successors are elected and qualified, and the remaining four, one from each ward shall be elected for the term of two years, and until their successors are elected and qualified; at which election the qualified voters of each city may cast their ballots, between the hours of nine o'clock, a. m., and six o'clock, p. m.; Provided, That the officers elected, by virtue of this act, shall not assume their duties until the expiration of the term for which those now in office were elected: Provideed,further, That in cases where officers have been elected to serve for more than one year, that the city authorities aforesaid shall proclaim an election for so many, and for such officers only, as under the provisions of this act, may be required for the government of any city. ARTICLE II. Powers of the Council. SECTION 1. The council of each city created by this act shall have power: 1. To levy and collect taxes for general and special purposes, Taxes. in manner as shall be previously provided by ordinance, not exceeding ten mills on the dollar in each year, for all purposes other than those hereinafter mentioned; on the value of allvaluation of property to be property within the limits Of any city, taxable by the laws of taken from Kansas, county assess Kansas, which value shall be ascertained from the books of the ments. county assessor of any county in which any city may be situated. 2. To provide for the sale of real estate, for the non-pay- Tax sales. ment of any taxes due thereon, and for the time and manner 29.] of redemption of the same, and conveyance thereof: Provided, That the owner thereof may redeem the same at any time Redemption of — y~~~~~~~~~ ~property sold for within two years thereafter, by the payment of the full amount taxes. of said tax, and all taxes subsequently paid thereon by the purchaser, and all costs and charges thereon, together with twenty-five per cent., per annum, thereon. 3. To impose a poll tax, not exceeding one dollar, on all Poll tax. 386 CORPORATIONS. [OC. 46. able-bodied male persons over the age of twenty-one, and under fifty years of age. Licenses. 4. To levy and collect a license tax on auctioneers, taverns, hawkers, pedlars, dram-shops, liquor sellers, pawn brokers, shows, and exhibitions for pay; billiard tables, ball and ten pin alleys, or any number of pins the same may have; hacks, drays, wagons, or other vehicles used within the city for pay; theatres and theatrical exhibitions for pay. straint oshf tip- 5. To restrain, prohibit, and suppress tippling shops, billiard tables, ten-pin alleys, ball alleys, houses of prostitution, and other disorderly houses and practices, gaming and gaming houses, desecrations of the Sabbath-day, commonly called Sunday, and all kinds of public indecencies. Quarantine, &c. 6. To make regulations to prevent the introduction of contagious disease into the city; to make quarantine laws for that purpose, and enforce the same within five miles of the city. Hospitals,&c. 7. To erect, establish, and regulate hospitals, work houses, and poor houses, and provide for the government and support of the same. Nuisances, &c. 8. To make regulations to secure the general health of the city, and to prevent and remove nuisances, and to provide the city with water. Streets and al- 9. To open, widen, extend, grade, pave or otherwise improve leys. and keep in repair the streets, alleys, and public grounds of the city. Police. 10. To establish, regulate, and support night watch and police, and define the power and duties of the same. Lighting streets 11. To provide for lighting the streets, and erection of lamp posts. Market houses. 12. To erect and establish market houses and market places, and to regulate and govern the same, and to provide for the erection of all other useful anid necessary buildings for the use of the city. Census. 13. To provide for and cause to be taken the enumeration of the inhabitants. dManner of con 14. To provide, by ordinance, for the election of city officers, tions. prescribing the manner of conducting the same and the returns thereof, and for deciding contested elections. Removal of offi- 15. To provide for removing officers of the city for misconduct, whose offices are created and made elective by this act; Creation of offi- and shall have the power to create any office that they may deem for the good government and interest of the city. Ciu. 46.] coRPORATIONS. 387 16. To regulate the police of the city, afines, &c. forfeitures, and penalties for the breach of any ordinance, and also for the recovery and collection of the same, and in default of payment, to provide for confinement in the city prison or to hard labor in the city. 17. To regulate and prescribe the powers and duties andDuties ofofficer compensation of the officers of the city not hereinbefore provided for. 18. To require from all officers and servants elected or ap- Officialbonds, pointed in pursuance of this act, bonds and security for the faithful performance of their duties. 19. To borrow money on the credit of the city, and pledge Borrowing mon the revenue and public property of the city for the payment thereof; provided, that there shall not be paid directly or indirectly on any indebtedness that may hereafter accrue, a greater rate of interest than seven per cent. per annum, nor shall a Rate of interest and amount of greater debt hereafter be contracted than twenty-five thousand debt. dollars, unless two-thirds of the votes cast, at a poll to be opened for that purpose, shall authorize the same. 20. To appropriate money and provide for the payment of Appropriation the debts and expenses of the city. 21. To apportion the representation in the city council ac- Apportionment. cording to the population of each ward. 22. To open, widen, or otherwise improve in their discretion, Streets and alor vacate any street, alley, avenue or lane, within the limits of the city, and to create, open and improve at their discretion any new street, alley, avenue or lane; provided, that all dam- Damages. ages sustained by the citizens of the city, or the owners of property therein shall be ascertained in manner as shall be provided by ordinance; and provided further, that the council in their discretion shall have power to levy special taxes on, Special grading and paving taxand collect the same from the adjacent real estate, providedes they shall in no case tax beyond the centre of the block, on either side of said improvements, to defray the expenses of said improvements, in manner as shall be provided by ordinance. 23. To elect one of their own body, who shall be styled the President of the " President of the Council," and who shall preside at all meetings of the council in the absence of the mayor, and in the absence of the president, to elect one of their own body to occupy his place temporarily, and who shall be styled, "Acting President "Acting president." of the Council," and the President and Acting President when occupying the place of the Mayor, shall have the same privi 388 CORPORATIoNs. [Cu. 46. leges as other members of the council: and all acts of the Acting President, while so acting, shall be as binding upon the council and upon the city as if done by the President. city ordinances, 24. All ordinances of the city shall be passed pursuant to such rules and regulations as the council may provide; and all ordinances of the city may be proved by the certificate of the Authentication clerk under the seal of the city, and when printed or published in book or pamphlet form, and purporting to be printed and published by authority of the city, shall be read and received in evidence in all courts and places, without further proof. Annual state 25. The city council shall cause to be published, once in each ment. year, a statement of the receipts and expenditures of the city, and a statement of the financial condition of the city. ARTICLE 3. POWERS OF THE MAYOR. municippal PC SECTION 1. The Mayor shall be a conservator of the peace; Jurisdiction of shall have all the powers conferred or to be conferred by law mayor. upon justices of the,peace, except in civil cases; shall have exclusive jurisdiction to hear and determine all offences against the ordinances of the city, and all fines and penalties collected arising from a breach of the ordinances of the city shall be immediately paid to the city Treasurer; and shall have original jurisdiction of all offences against the laws of this State, committed within the limits of the city, and by virtue of his office shall be a justice of the peace. Jurisdiction of SEc. 2. That the said Mayor shall also have exclusive jurisoffences against the State. dictionl to hear and determine all cases arising in said city, of misdemeanors under the laws of the State, where the fine which may be imposed does not exceed one hundred dollars, or the imprisonment one year, and all such fines shall be paid into the county treasury for the support of common schools. (omplaint and SEC. 3. That whenever complaint shall be made to the said arrest. Mayor, on oath or affirmation of any person competent to testify against the accused, that a misdemeanor as aforesaid has been committed, the Mayor shall forthwith issue a warrant for the arrest of the offender, which warrant shall be executed by the City Marshal, Sheriff, Constable, or some person specially appointed by the Mayor for that purpose. Trial. SEC. 4. That when any person shall be brought before the Mayor upon such warrant, it shall be his duty to hear and determine the complaint alleged against the defendant. Ga. 46.] CORPORATIONS. 389 SEC..5. That upon good cause shown the Mayor may post-Recognizance. pone the trial of the case, to a day certain, in which case he shall require the defendant to enter into recognizance with sufficient security, conditioned that he will appear before the Mayor at the time and place appointed then and there to answer the complaint alleged against him. SEC. 6. That in case of the breach of any recognizance en-_Beachofreeognizance. tered into as aforesaid the same shall be certified to the district court to be proceeded on according to law. If in the progress of any trial before the said Mayor it shall appear that the accused ought to be put upon his trial, for an offence not cognizable before the said Mayor, he shall immediately stop all Proeeedings when suspended. further proceedings before him and proceed as in other cases exclusively cognizable before the district court. SEC. 7. That it shall be the duty of said Mayor to summons Summoningwvitall persons whose testimony may be deemed material, as witnesses at the trial, and to enforce their attendance by attachment if necessary, and all witnesses shall receive the sum of fifty cents for each days' attendance. SEC. 8. That all trials before the Mayor, of misdemeanors Trial by juiy or arising under the laws of the State shall be by a jury of six competent men, who shall receive fifty cents for each days' attendance, unless the defendant and prosecuting attorney, with the assent of the Mayor, submit the trial to the Mayor. SEC. 9. That if the defendant is found guilty, the Mayor Judgmet. shall declare and assess the punishment and render judgment accordingly; it shall be part of the judgment that the defendant stand committed until the judgment be complied with. SEC. 10. That any defendant committed under the provisions Defendant, how of this act for a misdemeanor arising under the laws of the dischar~ed' State, may be discharged in the same manner as if he had been committed by the district court. -SEC. 11. That in all cases not herein specially provided for, Other cases. the process and proceedings before the judgment shall be governed by laws regulating proceedings in justice's courts in criminal cases. SEC. 12. That when a trial shall be continued by the Mayor, On cemtinlance, it shall not be necessary to summon any witness who may be teld witout present at the continuance, but the Mayor shall verbally notify such witnesses, as either party may require, to attend before him to testify in the cause, on the day set for trial, which verbal notice shall be as valid as a summons. 390 CORPORATIONS. [CH. 46. Challenges. SEC. 13. That in trials by a jury before the Mayor, challenges shall be allowed in the same manner; as in the district court. Other provisions SEC. 14. That the Mayor shall be a conservator of the peace, and his court shall be open every day, except Sunday, to hear, try, and determine all cases cognizable before him, and he shall have power to bring parties before him forthwith for trial. rees. SEc. 15. That the Mayor shall be entitled to receive the same fees as established by law for justices of the peace. Appeals to dis- SEC. 16. That in all cases before the Mayor, arising under trict court. the ordinance of the city, wherein the fine assessed exceeds twenty dollars, or imprisonment one month, an appeal may be taken by the defendant to the district court, but no such appeal shall be allowed unless the defendant, within ten days, shall enter into recognizance, with sufficient securities, to be approved by the Mayor conditioned for the payment of the fine and costs of appeal, if it should be determined against the appellant. P'unishments. SEC. 17. That any person convicted before the mayor of any offences under the ordinances of the city, shall be punished by fine and imprisonment as may be regulated by ordinance. Vacancy in of- SEC. 18. That in case of a vacancy in the office of mayor, flee of mayor. *. by death, resignation, or otherwise, or in case of absence, interest or disability of such mayor, to perform his duty, it shall be the duty of any acting justice of the peace of the township who may be designated by the mayor, to act as Mayor during such vacancy, absence or disability, in the trial of causes cognizable before the mayor. Malicious pros- SEC. 19. That if Iupon any trial before the mayor it appears to the satisfaction of the mayor, or the jury, that the prosecution was commenced without probable cause, or from malicious motives, the jury or mayor trying the case, shall state the name of the prosecutor or prosecutors in the finding and shall impose the costs of prosecution upon him or them, and judgment shall be rendered against such prosecutor or prosecutors that he or they pay such costs, and stand committed until the same are paid. Contempts. SEC..20. That the mayor shall have power to enforce due obedience to all orders, rules, judgments and decrees made by him, and may fine or imprison for contempt offered to such mayor whilst holding his court, or to process issued by him, gH. 46.] CORPORATIONS. 391 in the same manner, and to the same extent as the District Courts. SEc. 21. To sign or veto any ordinance passed by the City Veto power. Council; Provided, That any ordinance vetoed by the mayor, may be passed over the veto, by a vote of two-thirds of the members of the Council voting, notwithstanding the veto; and should the mayor neglect, or refuse to sign any ordinance and return the same with his objections in writing at the next regular meeting of Council, the same shall become a law without his signature. SEC. 22. All orders, and drafts upon the treasury for money Treasury orders, shall be signed by the mayor and shall be attested by the city how signed. clerk, who shall also affix thereto the seal of the city, and keep an accurate record thereof in a book to be provided for that purpose. SEC. 23. That the mayor shall preside at all the meetings of Mayor to preside at meetings the City Council, and shall have a casting vote, when the ofcouncil. Council is equally divided, and none other, and shall have superintending control of all the officers and affairs of the city, and shall take care that the ordinances of the city and this act are complied with. SEC. 924. That he shall sign the commissions or appoint-Commissions. ments of all the officers elected or appointed in the city government. SEC. 25. That he shall be conservator of the peace through- Extra police. out the city; and for this purpose may appoint or dismiss, at pleasure, any number of extra policemen as he may deem proper, and all such acts he shall report to the City Council. SEC. 26. That he shall from time to time communicate to Messages to council. the City Council such information and recommend such measures as in his opinion may tend to the improvement of the finances of the city, the police, health, security, ornament, comfort and general prosperity of the city. SEC. 27. That tilhe mayor, or any two councilmen, shall have Callingofspecial meetings of power to call special meetings of the City Council, the: object council. of which shall be submitted to the Council in writing, and the call, and object, as well as the disposition thereof, shall be entered'upon the journal by the clerk. SEC. 28. That the mayor shall have power when he deenms Mayor may require officers to it necessary to require any officer of the city to exhibit his ac- account count or other papers and to make report to the Council in writing, touching any subject or matter he may require pertaining to his office. 392 CORPORATIONS. [CH. 46. Other duties. SEC. 29. That the mayor shall be active and vigilant in enforcing all laws and ordinances for the government of the city, and he shall cause all subordinate officers to be dealt with promptly for any neglect or violation of duty; he shall have jurisdiction as may be vested in him by ordinance. over all places within five miles of the corporate limits of the city, for the enforcement of any health or quarantine ordinance and regulation thereof. Vacancy in of- SEC. 30. That when any vacancy shall happen in the office fice of mayor. of mayor by death, resignation, absence from the city, removal from office,.-refusal to qualify, or otherwise, the president of the Council for the time being shall exercise the office of mayor with all the rights, privileges and jurisdiction of the regular mayor except in judicial matters, until such vacancy be filled or such disability be removed; or in case of temporary absence, until the mayor shall return, and during the time he shall receive the same compensation that the mayor would be entitled to; and in case of such vacancy, other than a temporary absence, or disability, the person receiving the office of mayor, shall cause a new election to be held, giving ten days notice thereof by proclamation. Oaths, deposi- SEC. 31. That the mayor of the city is hereby authorized to tions and acknowledgments. administer oaths, to take depositions and acknowledgments of deeds, mortgages and all other instruments of writing affecting the title of real estate, and certify the same under seal of the city, and the same shall be received as valid throughout the State. When muet- SEC. 32. That at the first meeting of the City Council after qualify. any general election for city officers, they shall cause to be made out and certified by their clerk, the election and qualification of the mayor, and within ten days thereafter, he shall cause the same to be recorded in the registers office of the county, and a neglect of the mayor elect to qualify, and cause the same to be recorded for the space of ten days, shall be deemed a refusal to accept. May call on in- T habitants and SEC. 33. That the mayor is hereby authorized to call on militia, when. every male inhabitant of the city, over eighteen years of age, and under the age of fifty years, to aid in enforcing the laws and ordinances of the city, and in case of necessity, to call out the militia within the city, to aid in the suppression of any riot, or in the enforcement of any ordinance; and any person who shall not obey such call, shall forfeit to the city a fine not exceeding five hundred dollars. CH. 46.] CORPORATIONS. 393 SEC. 34. The- mayor shall have power to remit fines and May remitfines, forfeitures, to grant reprieves and pardons for all offences arising under the ordinances of the city, by and with the consent of the Council. SEc. 35. The mayor shall have power by and with the con- Appointment and removal of sent of the: Council, to appoint all officers other than those officers. provided for in this act, that may be deemed by the Council necessary for the good government and efficient police of the city, and to remove from office by and with the consent of the Council, any person holding an office created by ordinance. ARTICLE 4. Common Schools. SECTION 1. The City Council of each city shall provide by Council may levy tax for suptaxation for the support of common schools. Provided, That peorYt of schools. the Council shall not levy a tax greater than one mill on the dollar in each year for the support of said schools, and a tax of not more than one-half of one mill on the dollar in each year for the purpose of furnishing such real estate and buildings as may be necessary for the use and maintenance of said schools, and the City Council shall have full power to hold by purchase or devise, in the corporate name of the city, all and any property whatever necessary for said schools; Provided, That the taxes in this section authorized shall constitute a part of the tax of ten mills hereinbefore provided for, and that the funds so raised shall be held sacred to the use of the said common schools, as herein provided for. SEC. 2. In each city, under this act, there shall be a "Board Trustees of schools to be of Trustees of Common Schools," consisting of two members elected. from each ward in the city, elected by the qualified voters in each ward, one of whom shall be elected annually and shall hold his office for the term of two years, and until his successor is elected and qualified; Provided, That at the first election under this act the entire Board shall be:elected, one of whom from each ward shall -be elected for the term of one year, and one from each ward for the term of two years. SEe. 3. The "Board of Trustees of Common Schools'" shall General powers of trustees. have full power to govern and control the common schools of the city., SEc. 4. The -"Board- of Trustees of Common:Schools" at Offcers of board of trustees. the first meeting thereof after their election, and after the 394 CORPORATIONS. [Cu. 36. election of new members by the people, shall choose from their own body a president and vice-president, who shall hold their offices for one year. clerk of board. SEC. 5. The clerk of the City Council shall, without any emolument therefor, be clerk of the Board of Trustees of Common Schools,-and shall, at the expense of' the school fund, furnish all books and stationary required by the Board. Oath of office. SEC. 6. All and every member and officer of the Board of Trustees of Common Schools shall take and subscribe before any officer authorized to administer oaths, an oath to discharge the duties devolved upon them by this act "faithfully, impartially, and to the best of their ability," which shall be filed among the records of the city. Compensation. SEC. 7. No officer or member of the Board of Trustees of Common Schools shall receive any pay, reward or emolument for his services as such officer or member. Schoolfund. SEC. 8. The school fund herein provided for shall be held by the city treasurer as a separate and distinct fund, and the same shall not be applied under any pretence whatever to any other use than that of the support of common schools. The Board of Trustees shall certify to the City Council the correctness of all accounts for expenses incurred in the support of said schools, and give the teachers employed therein certificates for the amount due for said services, and all money levied and collected in any city under this act, for the support of common schools, shall be subject to the control and disposition of the City Council. vacancies. SEC. 9. The Board of Trustees of Common Schools shall have power to fill any vacancy which may occur in their body, and the person by them so appointed shall continue in office until his successor is elected and qualified. Board of exam- SEC. 10. The Board of Trustees of Common Schools, at iners. such time as they shall deem expedient, shall appoint three competent persons, who shall be styled the Board of Examiners for Common Schools, whose duty it shall be to examine all persons who may apply to them as teachers, and no person shall be elected: by the Board of Trustees as teachers who cannot produce a certificate from the Board of Examiners signed by all or a majority of them, and setting forth that he or she is competent to teach such branches of education as may be stated in the certificate,.and that he or she is a person of good moral character. CH. 46.] CORPORATIONS. 39 5 SEC. 11. The Board of Trustees of Common Schools shall vacancies. have power to fill any vacancy which may occur in the Board of Examiners. SEC. 12. The property, of every kind whatever, dedicated Of property dedto the use of common schools, shall not be sold or conveyed by of schools. the city council, unless the city council shall first receive a recommendation to that end from the board of trustees of common schools, and unless the city council shall unanimously, by the affirmative recorded vote of every member of the council, consent to and order such sale and conveyance: Provided, That the proceeds of the sale of any real estate dedicated to the use of common schools, shall be reinvested in other real estate for the use and benefit of said schools. SEC. 13. The board of trustees of common schools shall have Ofleasingtrchool property. the exclusive power to lease, for a term not exceeding one year at a time, any property held by the city council for the use of.common schools and not required for school rooms; to collect the rent due on such lease, by suit, in any court of competent jurisdiction within the state, in the name of the board of trustees of common schools for the city of, provided that the money by them collected from such lease, shall be deposited with the city treasurer, for the use of common schools, subject to the disposition and control of the city council. SEC. 14. The board of trustees of common schools shall, Ofmonthly statements to through their clerk, make a monthly statement to the city council. council of all the affairs of the common schools, financial and otherwise, and as much oftener as the city council shall require. SEC. 15. The board of trustees of common schools shall hold Meetings. a regular session, commencing on the first -:onday in each month; and shall hold such other sessions as may be called by the president of the board, vice-president or temporary chairman. SEC. 16. The property of every nature held by the city Exemption. council for the use of schools shall be exempt from taxation, and shall not be taken in any manner for any debt due by the city. SEC. 17. All taxes collected for the benefit of commonShol btaaxeid, schools shall be paid in cash. cash. SEC.:18. The city council of any city under this act, shall Schools for colored persons. make provisions for the appropriation of all taxes for school purposes collected from black or mulatto persons, so that the children of such persons shall receive the benefit of all moneys 396 CORPORATIONS. [CH. 46. collected by taxation for school purposes from such persons, in schools separate and apart from the schools hereby authorized for the children of white persons. school. SEC. 19. All white persons of the age of six years, and not more than twenty-one years, shall be eligible as scholars in the common schools established by the board of trustees of common schools, for the education of white persons. — ARTICLE V. MISCELLANEOUS. Of the city mar SECTION 1. The marshal shall be the chief of police, and shal. shall at all times have power to make or order an arrest, with or without process, for any offence against the laws of the state or of the city, and bring the offender for trial before the proper officer of the city. Of arrests. SEC. 2. The policemen of the city shall have power to arrest all offenders against the laws of the state or city, by day or by night, with or without process, and keep them in the city prisons or other place to prevent their escape, until a trial can be had before the proper officer. Policemen sub- SEC. 3. The policemen of the city, in the discharge of their ject to orders of shalor and mar- duties, shall be subject to the orders of the mayor and marshal only. Marshal subject SEC. 4. The marshal, in the discharge of his duties, shall be to orders of mayor. subject to the orders of the mayor only. Tcollector of tax- SEC. 5. The city treasurer shall be collector of taxes for the city, and shall give bond, to be approved by the city council, for the honest and faithful performance of the duties of his office, which said duties shall be fixed by ordinance. Duties ofoffi- SEC. 6. The duties, powers and privileges of all officers, of cers, how defin. ed. every character, in any way connected with the city government or its schools, not herein defined, shall be defined by ordinance of the city council. Of additions and SEC. 7. The city council, in their discretion, may add from boundaries. the territory adjacent to the city limits, as defined and existing at the date of the approval of this act, such other wards as they may deem proper; and shall in every case have power to increase or diminish the city limits, in manner as in their judgment and discretion.may redound to the benefit of the city: Provided, That the number of wards; shall not be less than four; but in no case shall they have power to increase the city limits, without first obtaining the assent of a majority of all CH. 46.] CORPORATIONS. 397 the legal voters, residents of the territory proposed to be added to the city limits. SEC. 8. The city council are hereby required to make pro-Of a siinking visions for a sinking fund, to redeem at maturity the bonded indebtedness of the city: Provided, That the said sinking fund shall be obtained from and provided for out of the tax of ten mills hereinbefore provided for; and that the tax levied for said sinking fund shall be payable in cash. SEC. 9. The city council shall make provision, out of the Of paymentof interest. ten mills taxation herein provided for, for the payment of interest on the bonds of the city, and taxes levied for the payment of such interest shall be payable in cash. SEC,. 10. The city council, in their discretion, shall, fr0mOffundingthe city indebtedtime to time, have power to issue bonds, with interest coupons ness. attached, for the purpose of funding any and all indebtedness of the city, provided said bonds shall be payable in not less than ten years nor more than twenty years, from the date of their issue, and that said bonds shall bear an annual interest of not more than seven per cent: And provided, further, said bonds shall not be issued and appropriated for the purpose of funding any indebtedness of the city, unless the city receives in exchange for the bonds so issued and appropriated the full amount of said bonds, in outstanding city orders, scrip, or other evidence of indebtedness. SEC. 11. That all lands, houses, moneys, debts due the city, Exemptions. and property and assets of every description, belonging to any city or municipal corporation, under this act, shall be exempt from execution and sale. SEC. 12. This act shall take effect and be in force from and after its publication once —ine the Leavenworth Times, except sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 3, 14, 15, 16, 17,'18, 19 and 20 of Article 3, which shall not take effect until the term of office for which the present recorder was elected shall expire, and until the mayor, as provided in this act, shall have been elected and qualified. Approved March 4th, 1862. 398 CORPORATIONS. [CH. 47. CHAPTER XLVII. (Acts of 1859, Chapter LXXX.) AN ACT Providing for the Incorporation of Towns and Villages. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: How incorpora- SECTION 1. Whenever two-thirds of the inhabitants of any town or village, within this Territory, shall present a petition When probate to the probate court of the county, setting forth the metes and court may de - clare towncor bounds of their village and commons, and praying that they rated. may be incorporated and a police established for their local government, and for the preservation and regulation of any commons appertaining to such town or village, and the court shall be satisfied that two-thirds of the taxable inhabitants of such town or village have signed such petition, and that the prayer of the petitioners is reasonable, the probate court may declare such town or village incorporated, designating, in such order, the metes and bounds thereof; and, thenceforth, the inhabitants within such bounds shall be a body politic and corporate by the name and style of "The inhabitants of the town of -," (naming it,) and by that name they and their successors shall be known in law, have perpetual succession, unless disincorporated, sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity, and in all actions, pleas and matters whatsoever; may grant, purchase, hold and receive property, real and personal, within such town, and no other, (burial grounds and cemeteries excepted,) and may lease, sell and dispose of the same for the benefit of the town, and may have a common seal, and break and alter the same at pleasure. Corporate pow. SEC. 2. The corporate powers and duties of every town so ers vested in trustees; how incorporated shall be vested in a board of trustees, to consist appointed and elected. of five members. The first board of trustees shall be appointed by the probate court at the time of declaring such town incorporate, who shall continue in office until their successors are elected and qualified, and such successors shall be chosen by the qualified electors, residing in such town, on the first Monday of Aprilin every year, in the manner hereinafter provided. Qualifications; SEC. 3. Any person shall be a trustee who shall have atterm of office. tained the age of twenty-one years, and shall be a free white male citizen of the United States, or declared his intention OG. 47.] CORPORATIONS. 399 according to law to become such; who shall be an inhabitant of the town at the time of his election, and resided therein for six months next preceding; and every trustee shall hold his office for the term of one year, and until a successor is elected and qualified. SEC. 4. Every trustee before entering upon the duties of his oth of office; appointment of office, shall take an oath to support the Constitution of the offcers. United States and an act to organize the Territory of Kansas, and faithfully to demean himself in office; and every board of trustees shall assemble within twenty days after their appointment or election, and choose a chairman of their number, and some other person as clerk; the board of trustees shall, by ordinance, fix the time and place for holding their stated meetings, and may be convened by the chairman at any time. SEc. 5. At all meetings of the board, a majority of the oardof trustees, how contrustees shall constitute a quorum to do business; a smallerstitutod. number may adjourn fiom day to day, and may compel the attendance of absent members in such manner and under such penalties as the board of trustees previously, by ordinance, may have prescribed. SEc. 6. The board of trustees shall judge of the qualifica- Trusitees to judge of elections, elections and returns of their own members, and de- tions,maketheir own rules, keep termine contested elections; they may determine rules forpj~oceeurnal their their own proceedings, punish any member or other person for disorderly behavior in their presence, and, with the concurrence of four of the trustees, expel any member, but not a second time for the same eause. They shall keep a journal of their proceedings, and, at the desire of any member, shall cause the yeas and nays to be taken and entered on the journal on any question, resolution or ordinance, and the proceedings shall be public. SEc. 7. Such board of trustees shall have power to pass by-By-lavs and or. dinances. laws and ordinances to prevent and remove nuisances; to prevent, restrain and suppress bawdy houses, gambling houses and other disorderly houses, within the limits of such town or any common thereto attached; to restrain and prohibit gambling; to provide for licensing and regulating dramshops and tippling-houses, theatrical and other amusements, within such town; to prohibit the firing of fire-arms; to prevent furious and unnecessary riding or driving of any horse or other animal within such town or such part thereof as they 400 CORPORATIONS. [eC. 47T may think proper; to establish night watches; to erect and maintain poor houses and hospitals; to prevent the introduction and spreading of contagious diseases; to prevent and extinguish fires; to establish and regulate markets; to erect and repair bridges; to erect, repair and regulate wharves and the rates of wharfage; to regulate the landing of steamboats, rafts and other water craft; to provide for the inspection of lumber, building materials and provisions, to be used or offered for sale in such town, or to be exported therefrom; to borrow money for the improvement of such town or to supply the same with water; to open and form public squares, avenues, drains and sewers, and to keep the same clean and in order; to open, clear, regulate, graduate, pave or improve the streets and alleys of such town; to impose and appropriate fines, forfeitures and penalties for breaches of their ordinances; to levy and collect taxes; to regulate the inclosure of any common field belonging to or within the limits of such town; and to pass such other by-laws and ordinances for the regulation and police of such town and commons thereto appertaining, as they shall deem necessary, not repugnant and contradictory to the laws of the land. Power to ap- SEC. 8. Such board of trustees shall have power to appoint point certain officers. an assessor, collector, constable and such other officers, servants and agents as may be necessary, remove theln from office, prescribe their duties and fix their compensation. Topavestreets, SEC. 9. Such board of trustees shall have power to have sidewalks, &c. the streets and alleys opened and repaired, and the footways and sidewalks of the streets paved, at the expense of the Proceedings owners or occupiers of the adjacent lots; and, if any such against owners, owner or occupier fail to open, repair or pave the same as required by ordinance, such board of trustees shall cause the same to be done, and may recover the full expense thereof from such owner or occupier, by action of debt, in the name of the corporation, before any court of competent jurisdiction and, if any tenant be required to open, repair or pave in front of the property occupied by him, the:expense thereof shall be a good set-off against so much of the rent due the owner; but -no-tenant shall be required to expend more than the rent for the term for which he occupied the property. Proceedings SEC. 10, If any person, who is a,non-resident of such against property ofaon-residnts. town, fail to open, repair or pave, when required as aforesaid, such board of trustees may cause such lot or lots to be sold to CH. 47.] CORPORATIONS. 401 defray the expenses of such improvement, in such manner as the board may, by ordinance, provide. SEc. 11. If any person fail to pay any tax levied on his Taxes,howtobe real or personal property, the town collector may recover the same by action of debt, in the name of the corporation, before any court of competent jurisdiction; and such collector may, in like manner, collect the amount of taxes due from any non-resident from any tenant or debtor of such non-resident; but no tenant shall be compelled to pay more than the rent of such property, and the amount thus paid by him shall be a good set-off against the owner of the property; and, if such non-resident's taxes be not otherwise paid, the property may be sold to pay the same, at public sale, in such manner as the board of trustees shall, by ordinance, provide. SEC. 12. All fines, forfeitures and penalties, accruing to rines and for feitures, how resuch town, may be recovered by action in the name of thecovered. corporation, before any justice of the peace, subject to an appeal to the higher courts of the Territory, and persons living in said town shall be competent jurors and witnesses, if in other respects competent and qualified. SEC. 13. If any real estate be sold, by virtue of an or-Real estate sold for taxes, how dinance of such town, the owner thereof may redeem the same nd adhen redeemed. i at any time within two years from the day of sale, by paying the purchase money and all costs and penalties incurred, together with the interest thereon, at the rate of twenty per centum per annum until paid. SEC. 14. The chairman of each board of trustees shall, on Chairman to report amount of the first day of March and September in each year, make out moneys, how and when; how a correct statement of all moneys received and expended on published. account of their respective towns, during the six months next preceding, and shall cause such statement, within ten days thereafter, to be published in some newspaper printed in the same town, if there be any, and if not, then he shall cause copies of such statement to be put up in six of the most public places in such town, within tenl days. SEC. 15. If the chairman of the board ol trustees of any Penalty for neg town shall, at any time, neglect to make and cause such statement to be published as required by this act, he shall forfeit for every such neglect, the sum of fifty dollars, to be recovered by action in any court of record, one-half whereof shall be to the use of such town, and the other half to the use of any person who will sue for the same. 402 eORMORATIONS. [CH. 47. Chlirsh and en- Sei. 16. Tile chairman of the board shall cause to be printed force ordinances and published the by-laws and ordinances of the board for the information of the inhabitants, and cause the same to be carried into effect; he shall remain in office for the term for which he is appointed or elected a trustee, but, in case of his absence at any meeting of the board, the board may appoint a chairman pro tempore. Vacancies, how SEC. 17. All vacancies in the board of trustees shall be filled /filled. by a special election, ordered by the chairman of the board, after ten days' public notice thereof being given. Judge of elec SEC. 18. Each board of trustees shall, as often as may be tion, how appointed. necessary, appoint three qualified voters, as judges of the election, to superintend and conduct all elections for trustees or other officers required to be elected, and such trustees shall supply all vacancies which may happen in the office of judges of elections. Notic of -elec- SEC. 19. The judges of elections shall give publie notice of the time and place of holding each election, by advertisement, published in some newspaper in their town, or by handbills put up in six public places in such town, not less than ten. nor more than twenty days previou s to the election. Judge ot elec- SEC. 20 If, on any day appointed for holding any election,) tion not attending,roceedings. any of the judges shall fail to attend, the electors present may appoint a judge or judges of election, to hold such election, who shall be qualified as required by this act, and all elections shall be by ballot. Qualifications of SEC. 21. All free white male persons, citizens of the United electors. electors. States or who have declared their intention to become such according to law, of the age of twenty-one years, residing within the limits of any incorporated town or city, and who shall have resided within the same for three months next preceding an election, shall be entitled to vote at all elections of town officers, and no property qualification shall he required of any person to render him eligible to any office in any incorporated town. Clerkofelection, SEC. 22. The judges of elections shall appoint a clerk who his duties. shall write down the names of all persons whose votes shall be received, and the names of those whose votes are rejected, in separate columns. Election, how - SEC. 23. The elections shall be kept open from ten o'clock ducted. in the forenoon until six o'clock in the afternoon; after the election is closed, the judges'shall examine the ballots, and Cu. 47.] CORPORATIONS. 403 the five duly qualified persons, who shall have received the highest number of votes, shall be declared duly elected trustees. SEC. 24. In cases of a tie, the judges shall determine theIn case ofa ti, judges to decide election between the persons so having an equal number of bylot. votes, by lot, and the judges shall make out and deliver to each person elected a trustee, a certificate of his election. /SEC. 25. In case of the failure of any election of trustees or On failure to hold elections, other officers, a majority of the trustees then in office may proceedings. cause the election to be held on any other day. SEC. 26, The probate court of each county shall have power Probate court may disincorpo - to disincorporate any town which may have been incorporated rate, when. under the provisions of this act, upon petition of three-fourths of the legal voters of such town. SEC. 27. No corporation shall be dissolved by virtue of this When court shall not disinact, unless it shall appear, to the satisfaction of the court, corporate. that notice has been given of the intended application for a dissolution of the corporation, by advertisement, published in a newspaper nearest the town prayed to be disincorporated, for at least eight weeks, successively, prior to such application, nor until all their liabilities have either been paid or secured to the satisfaction of the probate court of the proper county. SEC. 28. No dissolution of any corporation, under this act, Disolutito not shall invalidate or affect any right, forfeiture, or penalty accru- rights for or against the cor. ing to such corporation, or invalidate or affect any contractporation. entered into or imposed upon such corporation. SEC. 29. Whenever the probate court shall dissolve any Court to appoint atrustee. corporation, they shall appoint some competent person to act as trustee for the corporation so dissolved. SEC. 30. The trustee, before entering upon the discharge of~Oat fl d boncl his duties, shall take and subscribe an oath before some judge or justice of the peace, that he will faithfully discharge the duties of his office, and shall, moreover, give bond, with snufi- Condition of bond. cient security, to be approved of by the court, to the use of such disincorporated town, conditioned for the faithful discharge of the duties of his office. SEC. 31. The trustee shall, as soon as possible, prosecute or Powers and duties of trustee. defend to final judgment all suits instituted by or against the corporation, collect all money due to the same, liquidate all lawful demands against the same, and for that purpose shall sell any property belonging to such corporation, or so lmuch 404 CORPORATIONS. [CO. 47. thereof as may be necessary, and generally do all acts requisite to bring to a speedy close all the affairs of the corporation. Trustee to make SEC. 32. The trustee shall make a report of his proceedings report. to the probate court at each term thereof. Duty oftrustee SEC. 33 When the trustee shall have closed the affairs of when the affairs areclosed. the corporation, he shall pay over to the county treasurer all moneys remaining in his hands, and deliver to the clerk of such court all books, papers, records, and deeds belonging to the dissolved corporation. Comrelnsation. SEc. 34. The trustee shall receive for his services such coinpensation as the court shall think reasonable. levenue to be SEC. 35. If any town, disincorporated as aforesaid, have paid to county ti tribunal. an annual revenue accruing thereto, the same shall be paid to the county treasurer by the persons owing the same; and all moneys thus paid, as well as all moneys paid them by the trustee, shall be held and disposed of by the court for the benefit of such town, and may be applied by the court for any specific object, upon the petition of a majority of the taxable inhabitants of such town. Warrants upon SEC. 36. In all cases where any town in this Territory town treasury, how drawn, shall be indebted to any person, on any account whatever, printed, &c. a warrant shall be drawn on the treasurer or other' officer having the legal custody of the moneys of such city or town, for the whole amount found due to such person by the tribunal or officer having the power to audit and allow claims against such city or town, and to draw warrants therefor. SEc. 37. All warrants, drawn on the treasurer or other proper officer of any city or town, shall be drawn in favor of the person to whom the amount thereof shall be allowed, and of no other person. SEC. 38. All such warrants shall be assignable, and every assignment of any such warrant shall be by indorsement thereon. SEC. 39. This act to take effect and be in force fromn and after the first day of June next. Approved February 1, 1859. Ca. 48.] CORPORATIONS. 405 CHAPTER XLVIII. (Acts of 1862.) AN ACT to amend "An Act to incorporate and establish the City of 2Elwood, Kansas Territory, and for revising and repealing all laws and parts of laws heretofore enacted on that subject. Approved February 8, 1859." Be it enacted by the Legislature of the State of Kanscs: SECTION 1. That section one, of article one, of'"an act to incorporate and establish the city of Elwood, Kansas Territory, and for revising and repealing all laws and parts of laws heretofore enacted on that subject," be and the same is hereby amended, so as to read as follows: That all that district of Tracts of land embraced in corcounty described as follows, to wit: the north-east quarter of porate limits. section twenty-five, township three, range twenty-two, and section thirty, township three, range twenty-three, is hereby erected into a city, by the name of the city of Elwood, and the inhabitants thereof are hereby constituted a body corpo- Powers of orrate and politic, by the name and style of the city of Elwood; ties. and by that name they and their successors shall be known in law, have perpetual succession, sue and be sued, plead and be impleaded, defend and be defended, in any and all courts of law and equity, and in all actions whatsoever; may contract and be contracted with; may purchase, receive, and hold property, both real and personal, within said city; and may sell, lease, convey, or otherwise dispose of the same for the benefit of the city; may purchase, receive, hold, lease, or convey property, real, personal, or mixed, beyond the limits of the city, to be used for the burial of the dead, for the erection of water-works, for the establishment of hospitals, poor-houses, work-houses, houses of correction, for any purpose which may tend to the general good of the city; and may have a common seal, and change the same at pleasure. SEc. 2. That section one, of article two, be amended, so as City officers. to read as follows: That the permanent officers of the city of Elwood shall be a mayor; five councilmen; a city clerk, who shall also perform the duties of an assessor; a marshal, who shall also perform the duties of a collector; a treasurer; and such policemen and other officers as may be created or established by ordinance. SEC. 3. That section four, of article two, shall be amended, Electin of offiso as to read as follows: At each annual election there shall 406 CORPORATIONS. [Ca. 49. be chosen, by the qualified electors of said city, the following officers, to wit: a mayor and five councilmen, to be elected by wards, as may be established and apportioned by ordinance. All other officers of the city shall be elected or appointed as may be determined by ordinance. All officers so elected or appointed shall hold their offices for one year, and until their successors are elected or appointed according to law, and the provisions of any ordinance or ordinances touching such elections or appointments, unless sooner removed in such manner and for such offences as may be prescribed by ordinance. City council.' SEC. 4. That section one, of article three, be amended, so as to read as follows: There shall be in said city a city council, which shall consist of a mayor and board of councilmen, which board shall consist of five members; said members to be chosen in their respective wards of the city, as they may be apportioned by ordinance. SEC. 5. That section two, of article seven, be and the same is hereby repealed. Shall not bor- SEC. 6. That section nineteen, of article seven, be amended row money, &o. to read as follows: But the city council and mayor shall not have power to borrow money, or issue bonds. SEC. 7. This act shall take effect and be in force from and after its passage. Approved March 6, 1862. CHAPTER XLIX. (Acts of 1862.) AN ACT to amend an act entitled "An act to incorporate the Gardner Town Company," approved February 9, 1858. Be it enacted by the Legislature of the State of Kansas: Original act SECTION 1. That section one of said act be, and the same is amended. Names. hereby amended so as to read as follows: That Asa Thayer, O. B. Gardner, B. B. Francis, G. W. Chamberlain, and A. B. Bartlett, their associates and successors, are hereby constituted and declared a body politic and corporate, by the name and Corporate pow style of the "'Gardner Town Company," and by that name ers. shall be capable of making contracts, sueing and being sued, of pleading and being impleaded in all matters whatsoever in all courts of law and equity in this State; said company is auMay have aseal. thorized to have and use a common seal and to alter the same Ca. 50.] CORPORATIONS. 407 at pleasure, and to make such by-laws and regulations as from time to time may be deemed necessary for the government of said company, and the management of its affairs. A majority Quorum. of said company, at any meeting thereof, shall constitute a quorum to do business, but a less number than a majority may adjourn, and provided that sixty days' notice of said adjourned sixty days notice of adjournmeeting shall be given by publication in some paper having a ed meeting to be general circulation in Johnson county, any number of members of said corporation who shall be present in person or by proxy, shall have power to transact business. SEc, 2. That original section one, of the said act, is hereby reigialsa8o. 1 repealed. SEC. 3. This act to take effect and be in force from and after its publication once in the Olathe Mirror. Approved March 6th, 1862. CHAPTER L. (Acts of 1862.) AN ACT to Repeal an act entitled "An act incorporating the City of Quindaro," approved January, A. D. 1859, and all acts or parts of acts amendatory or supplemental thereto. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That an act incorporating the City of Quindaro, Acts rpealed. approved January 25th, 1859, and all acts or parts of acts amendatory or supplemental thereto, are hereby repealed. SEc. 2. That nothing in this act shall affect or interfere with the rights acquired by individuals or companies under the said act of incorporation, and no road, street or alley laid out or established under the act aforesaid shall be vacated except by the provisions of an act entitled 1" An act vacating streets and alleys," approved February 25th, A. D. 1862. SEC. 3. That it shall be the duty of the Trustee of Quindaro Dutin odf trustee. township, to take immediate possession of all books, papers,township. assets and property of every kind belonging to the City of Quindaro, dispose of the same and discharge the indebtedness of said city; in the performance of these duties he shall have and may exercise all the powers of the officers provided for in the act of incorporation aforesaid. SEC. 4. This act shall take effect and be in force from and after its passage. Approved March 6, 1862. 408 CORPORATIONS. [CA. 51. CHAPTER LI. (Acts of 1862.) AN ACT to amend an act entitled "An act to incorporate the White Cloud City Company," approved February 11th, 1858, and the amendments to said act, approved February 3rd, 1859, and to legalize certain acts therein named. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That at any regular meeting of the stockholders of the White Cloud City Company, the stockholders and proxies present shall be deemed sufficient to transact business: provided, they represent one-half of the stock of said company. SEC. 2. That if, at any regular meeting of the stockholders of said company, one-half of its stock shall not be represented, Specialmeetings the President of the company may, by giving thirty days' notice, call a special meeting at which the stockholders or proxies in attendance, representing a majority of the stock present, may transact the business of the company. Proxy. SEC. 3. The stockholders may act either in person or by proxy. SEC. 4. That the election of all officers of said company, had in accordance with the original charter, or with the amendment, Certainelections be and the same are hereby confirmed; and all officers of said confirmed.. company shall hold their respective offices until their successors are elected and qualified. Conveyances SEC. 5. All conveyances of lands or lots, and bonds for the confirmed. conveyance of the same heretofore executed by the proper officers of the company, are hereby confirmed and made valid. What shall not SEC. 6. That the following real estate of the said company, be included in original city to wit: All the land lying South of Alabama street, except plat. block one hundred and eighty-three (183) and one hundred and ninety-two, (192,) all West of V street; all West of 0 street and North of Minnesota street, and all North-west of Spring street, shall not be included in the city plat heretofore filed as required by law, but that the said real estate shall be held by the company as other lands, for the use and benefit of the stockholders, and shall be controlled in all respects as other property of the company, and that the streets, alleys, public grounds and thoroughfares, except county, territorial, or state Streets, &o., de roads embraced in that part of the city plat, in this section lared vaoant. described, be, and the same are hereby declared vacant. CH. 52.] COUNTIES AND COUNTY OFFICERS. 409 SEC. 7. That the right of property to all the trees and other timber standing or being on the streets and alleys inside of the charter limits of said company, as amended, is hereby vested in the stockholders, and reasonable notice shall be given to said company, when the said streets and alleys are wanted for public use. SEC. 8. This act shall take effect and be in force from and after its passage. Approved March 5, 1862.,CHAPTER LII.: (Acts of 1860, Chapter XXVIII.) AN ACT Relating to Counties and County Officers. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SE CTION 1. That each organized county within this Terri- Counties bodies corporate and tory shall be a body corporate and politic, and as such shall be politic. empowered for the following purposes: First, To sue and be Powers. sued: Second, To purchase and hold real and personal estate for the use of the county, and lands sold for taxes as provided by law: Third, To sell and convey any real or personal estate owned by the county, and make such order respecting the same as may be deemed conducive to the interests of the inhabitants: Fol'th, To make all contracts and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporative or administrative powers: Fifth, To exercise such other and further powers as may be especially conferred by law. SEC. 2. Any real or personal estate heretofore or which may Property of be hereafter conveyed to any county shall be deemed the couty' property of such county. SEC. 3. The powers of a county as a body politic and cor- Powers, how executed. porate shall be exercised by a board of county commissioners therefor. SEC. 4. Each county organized for judicial purposes shall, bToerectcouulty at its own expense, provide a suitable court house and a suitable and sufficient jail, and fire proof offices and other necessary county buildings, and keep the same in repair. SEC 5. In all suits or proceedings by or against a county, ue in what name. 410 COUNTIES AND COUNTY OFFICERS. [CH. 52. the name in which the county shall sue or be sued shall be the "Board of County Commissioners of the County of,'~ (the name or [of] the county;) but this provision shall not prevent county officers, where authorized by law, from suing in their name of office for the benefit of the county. Process served, SEC. 6. In all legal proceedings against the county, process shall be served on the clerk of the board of county commissioners; and, whenever such suit or proceeding shall be comDuty ofclerk. menced, it shall be the duty of the clerk forthwith to notify the county attorney thereof, and to lay before the board of county commissioners, at their next meeting, all the information he may have in regard to such suit or proceeding. Inhabitants wit- SEC. 7. On the trial of any suit in which a county may be interested, the inhabitants of such county shall be competent witnesses and jurors, if otherwise competent and qualified according to law. Judgment as- SEC. 8. When a judgment shall be rendered against the sessed and colectedasatax. board of county commissioners of any county, or against any county officer, in an action prosecuted by or against him, in his name of office, where the same should be paid by the Exesution. county, no execution shall issue upon said judgment, but the same shall be levied and collected by tax, as other county charges, and, when so collected, shall be paid by the county treasurer to the person to whom the same shall be adjudged, upon the delivery of a proper voucher therefor: Provided, Proviso. That execution may issue on said judgment, if payment be not made within sixty days after the time required for the payinent of county taxes to the county treasurer, by the proper officers of said county, in each year. Commissioners. SEC. 9. The board of county commissioners shall consist of three qualified electors, any two of whom shall be competent to transact business, to be elected by the qualified electors of the several counties respectively, at the general election, on Tuesday after the first Monday in November, an. vacancy. nually; and, whenever a vacancy occurs in the office of said commissioner before the expiration of the term, the remainHow elected. ing commissioner or commissioners, together with the county clerk, shall choose some person to fill said vacancy, until the next general election. Term of offce. SEC. 10. At the first election held to choose the first board of county commissioners of any county, the person having the highest number of the votes shall continue in office three Cu. 52.] COUNTIES AND COUNTY OFFICERS. 411 years, the next highest two years, and the next highest one year; but, if two or more persons have the same number of votes, then their terms shall be determined by lot, under the direction of the board of canvassers returning the election; and, annually thereafter, one commissioner shall be elected and shall continue in office three years, [and] until his successor is elected and qualified: Provided, This shall not apply Proviso. to the county commissioners who shall be elected on the fourth Monday in March, 1860, in accordance with the one hundred and twenty-ninth section of this act. SEC. 11. Each county shall be divided, by the present County divided fur election pur. county board of supervisors holding office, into three compact poses. districts, as equal in population as possible, numbered respectively one, two and three, and not subject to alteration oftener than once in three years; and one commissioner shall be elected from each of such districts, by the voters of the whole county, as hereinbefore provided; but if, in any county, Ifb1oard fail to the aforementioned board of supervisors shall fail to make such division before the first election for county commissioners provided for in this act, such failure shall, in no case, prevent the election of said commissioners, who shall, within six months after their election, make the said division of the county into districts. SEC. 12. Said board of county commissioners shall meet at eet wlhen adl sit how long. the county seat of each county, on the first Mondays in January, April, July and October, in each year; and, in counties the population of which is under ten thousand, such commissioners may sit six days at each term; but, if the population exceed ten thousand, they may sit nine days, should the business require it. SEC. 13. Each person elected as such commissioner shall, Take oath. on receiving a certificate of his election, take an oath to support the Constitution of the United States and the Organic Act of this Territory, and to perform the duties of his office to the best of his ability, which oath, being indorsed upon said certificate, under the hand and seal of the person administering it, shall be sufficient for said person to act as said commissioner. SEC. 14. Each member of —the board of county commis- compensation. sioners shall be paid by the county a compensation for his services and expenses in attending the meetings of said board, at the rate of three dollars per day, for the time he shall ac 412 COUNTIES AND COUNTY OFFICERS. [CH. 52. tually attend, as hereiubefore limited and prescribed, and including the time necessary in going to and returning from the same. Powers. SEC. 15. The board of county commissioners of each county Property of shall have power, at any meeting: First, to make such orcounty. ders concerning the property belonging to the county, as they Settle accounts. may deem expedient. Second, To examine and settle all accounts of the receipts and expenses of the county, and to examine and settle and allow all accounts chargeable against the county, and, wheni so settled, they may issue county orders Erect and repair therefor, as provided by law. Third, To build and keep in county buildings repair county buildings, and cause the same to be insured in the name of the county treasurer, for the benefit of the county; and, in case, there are no county buildings, to proTaxes. vide suitable rooms for county purposes. Fourth, Apportion and order the levying of taxes as provided by law, and to borrow, upon the credit of the county, a sum sufficient for the erection of county buildings, or to meet the current expenses of the county, in case of a deficit in the county revenue. Property. Fifth, To represent the county and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made Organize town- by law. Sixth, To set off, organize and change the boundaships. ries of townships in their respective counties, to designate and give names therefor, and to fix the time and place of holding Election pre- the first election therein. Seventh, To establish one or more oincts. election precincts in any township, as the convenience of the Roads. inhabitants thereof may require. Eighth, To lay out, alter or discontinue any road running through one or more townships in such county, and, also, to perform such other duties Same. respecting roads as may be required by law. Ninth, To alter or change the route of any Territorial road within their reLicenses. spective counties. Tenth, To grant licenses for keeping ferries in their respective counties, and such other licenses as Other duties. may be prescribed by law. Eleventh, To perform such other duties as are or may be prescribed by law. Borrow money, SEC. 16. The board of county commissioners shall not borwhen. row money for the purposes specified in the fourth subdivision of section fifteen of this act, without having first submitted the question of such loan to a vote of the electors of the county. flow submitted SEC. 17. Whenever it shall become necessary, under the to people. Cm. 52.] COUNTIES AND COUNTY OFFICERS. 413 provisions of this act, to submit to a vote of the electors of any county, the question of raising any sum of money by loan, the said board, after having determined the sum necessary to be raised, shall cause notice of such determination, and of the time when the question will be submitted to the electors of such county, by written or printed handbills, posted up in five of the most public places in each township, for at least thirty days previous to the time fixed for the taking of such vote. SEC. 18. At the time specified in such notice, a vote of the Election, how electors of such county shall be taken in each of the townships in such county, at the place designated in the notice. The inspectors receiving the votes shall be the same as required at the general election, and the vote shall be canvassed by the same officers and in the same manner as required at such general election, and the result of such vote shall be certified by them, and transmitted to the county clerk, within ten days after such vote shall be taken, which certified statement shall be delivered by such clerk to the board of commissioners, at their next meeting. All voting in the several townships, as provided in this section, shall -be by ballot, and those voting in favor of such proposed loan shall have written or printed on their ballots, "For the loan;" and those voting against the loan shall have written or printed on their ballots, "Against the loan;" and if a majority of the votes cast at such election be against the loan, it shall not be made. SEC. 19. The board of county commissioners shall not set New townships. off or organize any new township, unless it shall contain territory equal to at least thirty-six square miles, and at least three hundred inhabitants within the limits thereof, except when an incorporated city or town is included in the limits of said township; nor shall any township be set off and organized, unless a petition be first presented to the board, signed by at least fifty citizens resident therein. This section shall Exption. not apply to the counties of Morris, Chase and Butler. SEC. 20. The board of county commissioners shall alterChange town. and change the township organization of their county, so as to agree with the standard fixed in the preceding sections, in respect to territory and population, if such change be desired by the citizens of the county, by a petition of a majority of legal voters. SEC. 21. Any [every] board of county commissioners shall Seal and rules 27 for meeting. 414 COUNTIES AND COUNTY OFFICERS. [CH. 52. have a seal, and may alter the same at pleasure. They shall sit with open doors, and all persons conducting in an orderly manner may attend their meetings, and they may establish rules and regulations to govern the transaction of their business. Predng offfcer SEC. 22. They shall, at the first meeting after their election, and after every annual election, choose one of their number chairman, who shall preside at such meeting, and all other meetings during the year, if present; but, in case of his absence from any meeting, the members present shall.choose one of their number as temporary chairman. Powers of chair- SEC. 23. The chairman of said board shall have power to yuan. administer oaths to any person, concerning any matter submitted to the board or connected with their powers and duties, and he shall sign all county orders. Accounts allow- SEC. 24. No account shall be allowed by the board of county ed, when. commissioners, unless the same shall be made out in separate items, and the nature of each item stated, and where no Time employed specific fees are allowed by law, the time actually and necesin service must be stated in ac-sarily devoted to the performance of any service charged in count. such account shall be specified, which account, so made out, shall be verified by affidavit: Provided, that nothing in this [See chl. 157-2.] section shall be construed to prevent any such board from disallowing any account, in whole or in part, when so rendered and verified, nor from requiring any other or further evidence of the truth and propriety thereof, as they may think proper. County orders. SEC. 25. County orders shall be signed by the chairman, and attested by the clerk, and shall specify the nature of the claim or service for which they were issued. aims disallow- SE. 26. When any claim of any person against a county district court. shall be disallowed, in whole or in part, by the board of commissioners, such person may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board, within thirty days after the making of Person appeal-, such decision, and executing a bond to such county, with ing must file bond. sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant. Duty of clerk SEC. 27. The clerk of the board, upon such appeal being when appeal taken, shall -iediately give notice thereof to the count taken, shall immediately give notice thereof to the county CH. 52.] COUNTIES AND COUNTY OFFICERS. 415 attorney, and shall make out a brief return of the proceedings ken to give no. tice to district in the case before the board, with their decision thereon, andattorney. shall file the same, together with the bond and all the papers in the case in his possession, with the clerk of the district court; and such appeal shall be entered, tried, and determined the same as appeals from justices' courts, and costs shall be awarded thereon in like manner. SEC. 28. The board of commissioners of their respective Boardtofurnish certain arcounties shall, at the expense of the county, furnish, annually ticles to offers. and in due season, to the assessor of the county, suitable blank assessment rolls for the several townships, prepared in accordance with the provisions of law, and shall also provide suitable books and stationery for the use of each of the county officers of their county. together with appropriate cases and other furniture for the safe and convenient keeping of all the books, documents, and papers belonging to each of said officers, and also official seals for each of said officers, where the same are required by law. SEC. 29. The board of county commissioners, at theirAnnual examin, annual July session of each year, or oftener, if they deemtio of orders. it necessary, shall carefully examine the county orders returned by the county treasurer, by comparing each order with the record of orders in the clerk's office. They shall cause to be entered on said record, opposite to the entry of each order Record of orders issued, the date when the same was canceled. They shall also make a list of the orders so canceled, specifying the number, date, amount, and the person to whom the same was payable, and enter the same on the journal of the board. SEC. 30. The boards of commissioners of their respective Annual report counties shall cause to be made out and published, yearly, in lhlldbe pubat least one newspaper in their county, if such there be, a report of receipts and expenditures of the year next preceding, and the amounts allowed; but if there be no newspaperPosted, if no printed in said county, their said statements shall be postedcotyer in in at least five public places in said county. SEX. 31. If any commissioners shall refuse or neglect to Negletof dnty, perform any of the duties which are or shall be required of penalty for him by law, as a member of the board of county commissioners, without just cause therefor, he shall, for each offence, forfeit a sum not less than twenty-five nor more than one hundred dollars. SEC. 32. Whenever any board of commissioners shalloew townships, 416 COUNTIES AND COUNTY OFFICERS. [Ce. 52. plat of to be fur organize new townships, or alter the boundaries of any townnished the township.; ships in their county, they shall cause a plat and record, thereof to be made by their clerk, specifying the name and boundaries of such township, which plat and record shall be kept in the office of such clerk, and a copy thereof, under the seal of said board, shall be made by said clerk, and filed with the proper officer of said township.'Duties of clerk. SEC. 33, It shall be the general duty of the clerk of the board of commissioners: First, To record, in a book to be provided for that purpose, all proceedings of the board. Second, To make regular entries of their resolutions and decisions in all questions concerning the raising of money. Third, To record the vote of each commissioner on any question submitted to the board, if required by any member. Fourth, Sign all orders issued by the board for the payment of money, and to record, in a book provided for that purpose, the receipt of the bounty treasurer, of the receipts and disbursements of the county. Fifth, To preserve and file all accounts acted upon by the board, with their action thereon, and he shall perform such special duties as are required of him by law. Same, as to ac- SEC. 34. It shall be the duty of such clerk to designate, counts, &c. upon every account which shall be audited and allowed by the board, the amount so allowed, and he shall also deliver to any person who may demand it, a certified copy of any record in his office, or any account on file therein, on receiving from such person ten cents for every folio contained in such copy. Same, as to SEC. 35. Such clerk shall not sign or issue any county couty orders. order, unless ordered by the board of commissioners authorizing the same; and every such order shall be numbered, and the date, amount, and number of the same, and the name of the person to whom it issued, shall be entered in a book kept by him, in his office, for that purpose. Same, as to new SEC. 36. The said clerk of each county shall, as often as a townships. new township shall be organized in his county, or the boundaries of any townships therein shall be altered, and immediately thereafter, make out and transmit to the secretary of the Territory (State) a certified statement of the names and boundaries so organized, and of the boundaries of any township, the boundaries of which shall have been altered. iompensation. SEC, 37. Such clerk shall receive a reasonable compensation for such services as he may perform as clerk of the board, CH. 52.] COUNTIES AND COUNTY OFFICERS. 417 where no specified fees are allowed therefor, the same to be allowed by the board, and paid by the county. SEC. 38. All persons now performing the duties of county Presentoffcers continue, how supervisors, shall'continue in office until the board of com-long. missioners are elected and qualified, as hereinbefore provided. PROBATE JUDGE. SEC. 39. There shall be elected, in each county, a probate Judge shall file bond. judge, who shall hold his office for two years, and who shall, [See ch. 75-3.] before he enters upon the duties of his office, execute to the Territory of Kansas a bond, in the penal sum of three thousand dollars, with two or more sufficient securities, to be approved by the county treasurer, and filed in his office, conditioned for the faithful performance of the duties required of him by law, and for the faithful application and payment of all moneys and effects that may come into his hands in execution of the duties of his office. SEc. 40. The probate judge shall keep a record of all Keep a record. probate business done by or before him, which record shall be open to the inspection of all persons, without charge; and he shall receive such fees as are by law allowed him for probate Fees and comrn pensation. business, and such other compensation as the board of county [See oh. 7.] commissioners may determine: Provided, that nothing shall be paid by the county, if the fees and official compensation of such judge shall amount to five hundred dollars. SEC. 41. If a vacancy in the office of probate judge should vacancy. occur, by death, resignation, or otherwise, the county board of commissioners shall appoint some suitable person to fill such vacancy, until a successor shall be elected according to law. COUNTY CLERK. SEC, 420 A county clerk shall be elected in each county of Clerkelected. this Territory, for the term of two years, and he shall, before he enters upon the duties of his office, execute and file with Filebond. the treasurer of the county a bond, with two or more sufficient sureties, in the penal sum of not less than two thousand dollars, to be fixed and approved by the treasurer, with conditions, in substance, as follows, to wit: "Whereas, the above bounden - was elected to the office of county clerk, of the county of --, on the - day of -—; now, therefore, if the said shall faithfully perform all the duties 418 COUNTIES AND COUNTY OFFICERS. [CH. 52. of his office, and shall pay over all moneys that may come into his hands, as such clerk, as required by law, and shall deliver to his successor in office all the books, records, papers, and other things belonging to his said office, then the above obligation to be null and void; otherwise, to remain in full force.' SEC. 43. The county clerk shall be, in and for his county, Actl as clerk of the board of county commissioners, and ex oyficio board and audic tor. county auditor. SEC. 44. Every such clerk shall appoint a deputy, in writing, Deputies. under his hand, and shall file such appointment in his office, and such deputy, in case of the absence or disability of such clerk, or in case of a vacancy in his office, shall perform all the duties of such clerk, during such absence, or until such vacancy shall be filled. Every such clerk may appoint other deputies, and his sureties shall be responsible, under his official bond, for the acts of all such deputies. SEC. 45. If a vacancy in the office of county clerk should vacancy. occur, by death, resignation, or otherwise, the board of county commissioners shall appoint some suitable person to fill such vacancy, until a successor shall be elected according to law. SEC. 46. The county clerk shall keep his office at the Office, wher. county seat; shall attend the sessions of the board of county kept, and duties. commissioners, either in person or by deputy; keep the seals, records, and papers of the said board of commissioners; and keep a record of the proceedings of said board, in a book, as required by law, under the direction of the said board of commissioners. REGISTER OF DEEDS. SEC. 47. A register of deeds shall be elected in each county, Register elected. for the term of two years, and who shall, before he enters upon the duties of his office, execute to the Territory of Kansas, and file with the treasurer of his county a bond, in the penal. sum File bond. of two thousand dollars, with two or more sufficient securities, to be approved by said treasurer, with a condition that he will faithfully, correctly, and impartially perform all the duties of his said office, and shall deliver to his successor in office all books, records, maps, deeds, mortgages, papers, and things belonging to his office, then the said obligation shall be void; otherwise, to be and remain in full force and effect. SEC. 48. The register of deeds shall appoint a deputy, who Deputy. shall hold his office during the pleasure of the register. Such appointment shall be in writing, filed and recorded in the CH, 52.] COUNTIES AND COUNTY OFFICERS. 419 office of such register, and the register so appointing him, and his sureties, shall be responsible for the faithful performance of his duties by such deputy. SEC. 49. In case of a vacancy in the office of register of deeds, or in the absence or inability to perform the duties of Vacancy. his office, such deputy shall perform the duties of said register during the continuance of such vacancy, absence, or inability. SEC. 50. The register of deeds shall have custody of, and safely keep and preserve, all the books, records, deeds, maps, Duties. and papers deposited or kept in his office; he shall also record, or cause to be recorded, in a plain and distinct handwriting, in suitable books, to be provided and kept in his office, all deeds, mortgages, maps, instruments, and writings authorized by law to be recorded in his office, and left with him for that purpose, and shall perform all other duties required of him by law. SEC. 51. Every register shall keep a general index, direct and inverted, in his office. The general index, direct, shall To keep indexes. be divided into seven columns, with heads to the respective columns, as follows, to wit: Time of Names of Names of Nature of Vol. and Page Remarks. Description Reception. Grantors. Grantees. Instrument. wh. recorded. of Tract. Form of index to be kept, &c. He shall make correct entries in such general index, of every instrument recorded, concerning or affecting real estate, under the appropriate headings, entering the names of the grantors in an alphabetical form. The general index, inverted, shall be divided into seven columns, as follows, to wit: Time of Names of |Names of Nature of Vol. and Page Remarks. Description Reception. Grantees. Grantors. Instrument. wh. recorded. of Tract. Same, inverted, He shall make, in such general index, correct entries of every instrument required by law to be entered in the general index, direct, entering the names of the grantees in alphabetical order; and, whenever any mortgage, bond or other instrument has been released or discharged from record, whether by written nRelease of mortrelease upon the margin of the record, or by recording a deed ga or release, the register shall immediately note, in both general indexes, under the column headed ";' Remarks," and opposite to the appropriate entry, that such instrument has been satisfied. SEc. 52. He shall, also, keep a receiving book, each page of which shall be divided into five columns, as follows, to wit: 420 COUNTIES AND COUNTY OFFICERS. [Cu. 52. Form of receiving bookr. Time of Name of Name of To whom Fees Reception, Grantor. Grantee. delivered. received. Duties on re- Whenever any instrument has been received by him, for record, coiving instrumentsfor rec- he shall immediately indorse upon such instrument his certifiord. cate, noting the day, hour and minute of its reception, the volume and page where recorded and the fees received for recording the same; and the date of record of such instrument shall be from the date of filing. Whenever any instrument has been Entry. filed, as aforesaid, the register shall immediately make an entry of the same in his receiving book, under the appropriate heading, with the amount paid as fee for recording the same; and, after such instrument has been recorded, he shall deliver it to the person authorized to receive the same, writing the name of the person to whom it is delivered in the appropriate column. bookkof plats to SEC. 53. He shall, also, keep a large, well bound book, in which shall be platted all maps of towns, villages or additions to the same within his county, together with the' description, acknowledgment or other writing thereon. He shall keep an Index to plat index to such book of plats, which index shall contain the name book. or names of the proprietor or proprietors of such town or village or addition, and the name of the town, village or addition. Compensation. No register of deeds shall be bound to perform any of the du[See oh. 99-26.] ties required to be performed by this act, for which a fee is allowed, unless such fee has been paid or tendered. Index to records SEC. 54. He shall, also, keep an index of each volume of records kept in his office, showing on one page the names of the grantors in alphabetical order, and on the other page the names of the grantees in alphabetical order. Copies of papers SEC. 55. Copies of all papers filed in the office of the register of deeds, and transcripts from the books of records kept therein, certified by him, under the seal of his office, shall be prima facie evidence in all cases. COUNTY ATTORNEY. Attorney elect- SEC. 56. A county attorney shall be elected in each county ed. [This title re- organized for judicial purposes, who shall hold his office for the pealed, oh. f6 — 9.] term of two years, who shall, before he enters upon the duties Shall file bond. Of his office, execute a bond to the county clerk of his county in the penal sum of one thousand dollars, with two or more sufficient securities, to be approved by the clerk of said board, which bond shall be conditioned for the faithful performance of Ci. 52.] COUNTIES AND COUNTY OFFICERS. 421 his duties as such officer, and that he will pay over to the county treasurer, in the manner prescribed by law, all moneys which shall come into his hands by virtue of his office, and he. shall deposit such bond in the office of the county clerk. SEC. 57. It shall be the duty of the county attorney to ap- Duties. pear tn the several courts of their respective counties, and prosecute or defend, on behalf of the people, all suits, applications or motions, civil or criminal, arising under the laws of this Territory, in which the Territory or their respective county is a party or interested. SEC. 58. Each county attorney shall, when requested by any same. magistrate of his county, appear on behalf of the Territory, before any magistrate, other than those exercising the police jurisdiction of incorporated cities and villages, and prosecute all complaints made in behalf of the Territory, except for common assault and battery, of which such magistrate shall have exclusive jurisdiction; and, upon the like request, shall appear before such magistrate, and conduct any criminal examination which may be had before such magistrate, and shall, also, prosecute and defend all civil suits before such magistrate, in which the county is a party or interested. SEC. 59. The county attorney shall, without fee or reward, Same. give opinions and advice to the board of county commissioners, and other civil officers of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board or officers, in which the Territory or county may have an interest. SEc. 60. The county attorneys shall severally receive such Compensation. compensation for their services as the board of commissioners of the proper county shall allow. SEC. 61. No county attorney shall receive any fee or reward, Shall notreceive other than lawfrom or on behalf of any prosecutor or other individuals, except ful fees. such as are allowed by law for services in any prosecution, or business to which it shall be his offieial duty to attend, nor be concerned as attorney or counsel for either party, other than the Territory or county, in any civil action depending upon the same state of facts, upon which any criminal prosecution, commenced but undetermined, shall depend; nor shall any county Not eligible to attorney, while in office, be eligible to or hold any judicial office judicia offico. whatsoever. SEC. 62. The county attorney may appoint a deputy, who Deputy. shall perform all the duties of such county attorney during his absence or sickness. 422 COUNTIES AND COUNTY OFFICERS. [Cu. 52. when absent or SEC. 63. In the absence, sickness or disability of the county attorney and his deputy, any court before whom it is his duty to appear, and in which there may be business for him, may appoint an attorney to act as county attorney, by order, to be entered upon the minutes of the court. Give receipt for SEc. 64. It shall be the duty of the county attorney, whenmoney. ever he shall receive any money in his official capacity, to give to the person paying the same a duplicate receipt, one of which shall be filed, by such person, with the county treasurer. AtteInd grand SEC. 65. Whenever required by the grand jury of any court jury when required, sitting within his county, it shall be the duty of the county attorney to attend them, for the purpose of examining witnesses in their presence, or of giving them advice in any legal matter, and to issue subpcenas and other processes to bring up witnesses, and to draw up bills of indictment. Prosecute viola- SEC. 66. It shall be the duty of each county attorney, upon tion of laws. information being given him that any person has violated any of the provisions of the election laws, or license laws, to adopt effectual measures for the conviction of such person. Issue subpoena. SEC. 67. The several county attorneys are hereby authorized to issue subpoenas, to be attested by the clerk of the court, to compel the attendance of witnesses before a grand jury of said county, or in any criminal action to be tried in said court. SHERIFF. Sheriff elcted. SEC. 68. A sheriff shall be elected, in each county organized for judicial purposes, for the term of two years, and who shall, before he enters upon the duties of his office, execute to this File bond. Territory a bond, with at- least three sufficient securities, in such penal sum, not less than three thousand dollars nor more than twenty thousand dollars, as the judge of the probate court and county clerk shall specify and approve; said bond, when thus approved, to be filed in the office of said clerk; and no person shall be received as a surety who is not worth at least two thousand dollars over and above his just debts. Condition of SEC. 69. The condition of such bond shall be in substance as bond. follows: "Whereas, The above bounden was elected to the office of sheriff of the county of -,on the.- day of-; now the condition of this obligation is such, that if the said shall well and faithfully perfbrm and execute the duties of the office of sheriff of the said county of - during his continuance in office, by virtue of said election, with CH. 52.] COUNTIES AND COUNTY OFFICERS. 423 out fraud, deceit or oppression, and shall pay over all moneys that may come into his hands as such sheriff, and shall deliver to his successor all writs, papers and other things pertaining to his office, which may be so required by law, then the above obligation shall be void; otherwise, to be and remain in full force and effect." SEc. 70. The sheriff of each county shall, as soon as mayUndersheriff. be, after entering upon the duties of his office, appoint some proper person under-sheriff of said county, who shall, also, be a general deputy, to hold during the pleasure of the sheriff; and, as often as a vacancy shall occur in the office of such under-sheriff, or he become incapable of executing the same, another shall, in like manner, be appointed in his place. SEC. 71. Whenever a vacancy occurs in the office of sheriffvacancy. of any county, the under-sheriff of such county shall, in all things, execute the office of sheriff, until a sheriff shall be elected and qualified; and any default or misfeasance in of'6ce of such under-sheriff, in the mean time, as well as beford'such vacancy, shall be deemed to be a breach of the condition of the bond given by the sheriff who appointed him; and, also, a breach of the condition of the bond, executed by such under-sheriff to the sheriff by whom he was appointed. SEC. 72. Each sheriff may appoint such and so many deputies Deputies. as he may think proper, for whose official acts and those of his under-sheriffs he shall be responsible, and may revoke such appointment[s] at his pleasure; and persons may, also, be dep- Spocialdeputies. uted, by such sheriff or under-sheriff, in writing, to do particular acts; and the sheriff and his sureties shall be responsible in [on] his official bond for the default or misconduct of his under-sheriff and deputies. SEC. 73. Every appointment of an under-sheriff or of a dep- Appointments filed. uty sheriff, and every revocation of such appointment shall be in writing, under the hand of the sheriff, and shall be filed in the office of the clerk of the county, but this section shall not extend to any person who may be deputized by any sheriff or under-sheriff to any particular act only. SEC. 74. The sheriff shall have charge and custody of the herifshall have custody of jails of his county, and of the prisoners in the same, and shall jails. keep them himself, or by his deputy or jailor, for whose acts he and his sureties shall be liable. SEC. 75. The sheriff, in person or by his under-sheriff orShallserve prodeputy, shall serve and execute, according to law, all processes, 424 COUNTIES AND COUNTY OFFICERS. [CH. 52. writs, precepts and orders, issued or made by lawful authority and to him directed, and shall attend upon the several courts of record held in his county. Shall preserve SEC. 76. It shall be the duty of the sheriff and under-sheriffs the peace. and deputies to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections, for which purpose, and for the service of process in civil or criminal cases, and in apprehending or securing any person for felony or breach of the Maycall personspeace, they and every coroner and constable may call to their to their aid. aid such person or persons of [their county asj they may deem necessary. Shall deliver to SEC. 77. Whenever a new sheriff shall be elected, and shall successor all under hischarge, have been qualified as required by law, the former sheriff shall except, &c. upon demand, deliver to him the jail and other property of the county, and all prisoners in such jail, and all writs, processes, orders and other papers belonging to such office and in his possession or that of his under-sheriff or deputies, except as provided in the next succeeding section, and, upon delivery thereof, such new sheriff shall execute to the former sheriff a receipt therefor. To complete bus- SEC. 78. Sheriffs, under-sheriffs and deputies may execute iness commenced. and return all such writs and processes as shall be in their hands at the expiration of their office, or at the time of their removal from office, which they shall have begun to execute by service, levy or the collection of money thereon. Misconduct of SEC. 79. Any default or misconduct in the office of deputy deputy after death of sheriff. sheriff or jailor, after the death, resignation or removal of any sheriff, by whom he was appointed, shall be adjudged a breach of the bond of such sheriff. In such cases ac- SEC. 80. Any action for default or misconduct of any sheriff, tion how prosecoeda. his under-shsriff, jailor or any of his deputies, may be prosecuted against the executors or administrators of such sheriff. Papers served on SEC. 81. Every paper required by law to be served on the sheriff. sheriff may, be served on him in person, or left at his office during his business hours. No sheriff shall SEc. 82. No sheriff, under-sheriff or deputy shall appear or act as attorney, advise, as attorney or counselor, in any case in any court. Neglect to make SEC. 83. Whenever any sheriff shall neglect to make due return, penalty 1for, 26-i return of any writ or process delivered to him to be executed, or sh. 2-4be guilty f any default r co i relai3.on or shall be guilty of any default or misconduct in relation COr. 52.] COUNTIES AND COUNTY OFFICERS. 425 thereto, he shall be liable to fine or attachment, or both, at the discretion of the court, subject to appeal; such fine, however, not to exceed two hundred dollars, and, also, an action for damages to the party aggrieved. SEc. 84. No sheriff shall, directly or indirectly, ask, de- Shall not receive greater fees than Inand or receive, for any service to be by him performed in'law allows. the discharge of any of his official duties, any greater fees than are allowed by law, on pain of forfeiting treble damages to the party aggrieved, and on being fined in a sum not less than twenty-five dollars, nor more than two hundred dollars. CORONER. SEC. 85. A coroner shall be elected in each county, for the Coroner elected. term of two years, who shall, before he enters upon the duties of his office, give bonds to this Territory, in such penal sum, Give bond. not less than five hundred and not more than five thousand dollars, with sufficient sureties, not less than two, as the county treasurer shall direct and approve, the condition of which bond shall be in substance the same as that given by the sheriff, such bond to be filed with the clerk of the proper county. SEC. 86. When there shall be no sheriff in the county or-Coroner toact ganized for judicial purposes, it shall be the duty of the cor- seri when. oner to exercise all the powers and duties of the sheriff of his county, until a sheriff be elected and qualified; and when the sheriff, for any cause, shall be committed to the jail of his county, the coroner shall be keeper thereof, during the time the sheriff shall remain a prisoner therein. SEC. 87. Every coroner shall serve and execute process of Same. every kind, and perform all other duties of the sheriff, when the sheriff shall be a party to the case, or whenever affidavit When sherff a shall be made and filed as provided in the succeeding section; party, &C and in all such cases he shall exercise the powers and proceed in the same manner as prescribed for the sheriff in the performance of similar duties. SEC. 88. Whenever any party, his agent or attorney, shall Same. make and file with the clerk of the proper court, an affidavit stating that he believes that the sheriff of such county will not, by reason of either partiality, prejudice, consanguinity or interest, faithfully perform his duties in any:suit commenced or about to be commenced in said court, the clerk shall direct the original or other process in such [suit] to the coroner, who shall execute the same in like manner as the sheriff might or ought to have done. 426 COUNTIES AND COUNTY OFFICERS. [COH. 52. Duties; to hold SEC. 89. The coroner shall hold an inquest upon the dead inquest. bodies of such persons only as are supposed to have died by unlawful means, or the cause of whose death is unknown. When he has notice of the dead body of a person, supposed to have died by unlawful means, the cause of whose death is unknown, found or being in the county, it shall be his duty to summons forthwith six citizens of the county, to appear before him at a time and place named. Jury and oath. SEC. 90. If any juror fails to appear, the coroner shall summons the proper number from bystanders, immediately, and proceed to impannel them and administer the following oath, in substance: Oath-'"You do solemnly swear (or affirm) that you will diligently inquire and true presentment make, when, how and by what means the person whose body lies here dead came to his death, according to your knowledge and evidence given you-So help you God." witnesses. SEC. 91. The coroner may issue subpoenas, within his county, for witnesses, returnable forthwith, or at such time and place as he shall therein direct; and witnesses shall be allowed the same fees as in cases before a justice of the peace, and the coroner shall have the same authority to enforce the attendance of witnesses, and to punish them and jurors for contempt in disobeying his process, as a justice of the peace has when his process issues in behalf of the Territory. WITNESSES' OATH. Oath. SEC. 92. An oath shall be administered to the witness in substance as follows: "You do solemnly swear that the testimony which you shall give to this inquest, concerning the death of the person here lying dead, shall be the truth, the whole truth and nothing but the truth-So help you God." TESTIMONY. Testimony. SEC. 93. The testimony shall be reduced to writing, under the coroner's order, and subscribed by the witness. VERDICT. Form of verdict. SEC. 94. The jurors, having inspected the body, heard the testimony and made all needful inquiries, shall return to the coroner their inquisition in writing, under their hands, in substance as follows, and stating the matter in the following form suggested, as far as found: "Territory of Kansas, county. An inquisition holden at —, in -- county, Ca. 52.] COUNTIES AND COUNTY OFFICERS. 427 on the - - day of -- A. D. 18-, before me, -, coroner of said county, on the body of, or a person unknown, there lying dead, by the jurors whose names are hereto subscribed, the said jurors, upon their oaths do say, (here state when, how, by what person, means, weapon or accident he or she came to his or her death, and whether feloniously.) In testimony whereof, the said jurors have hereunto set their hands, the day and year aforesaid" —which shall be attested by the coroner. SAME SECRET. SEC. 95. If the inquisition find a crime has been committed To be keptsecret. on the deceased, and name the person whom the jury believes has committed it, the inquest shall not be made public until [after] the arrest directed in the next section. SEC. 96. If the person charged be present, the coroner may Person charged, order his arrest by an officer or any other person, and shall then make a warrant requiring the officer or other person to take him before a justice of the peace. WARRANT. SEC. 97. If the person charged be not present, and the cor- Warrant for arrest. oner believe he can be taken, the coroner may issue a warrant to the sheriff or any constable of the county, requiring them to arrest the person and take him before a justice of the peace. SAME. SEC. 98. The warrant of a coroner in the above case shall Authority of same. be of equal authority with that of a justice of the peace; and, when the person charged is brought before the justice, he shall be dealt with as a person held under a complaint in the usual form. SAME STAND AS COMPLAINT. SEC. 99. The warrant of the coroner shall recite substan- Warrant stand as complaint. tially the transaction before him, and the verdict of the jury of inquest leading to the arrest; and such warrant shall be a sufficient foundation for the proceeding of the justice instead of a complaint. RETURN. SEC. 100. The coroner shall then return to the District Return evidence Court the inquisition, the written evidence, and a list of the witnesses, who testify material matter. 428 COUNTIES AND COUNTY OFFICERS. [CH. 52 BURIAL EXPENSES. Burial expenses, SEC. 101. The coroner shall cause the body of a deceased how paid, person, which he is called to view, to be delivered to his friends, if any there be; but, if not, he shall cause him to be decently buried, and the expenses to be paid from any property found with the body; or, if there be none, fiom the county treasury, by certifying an account of the expense, which, being presented to the board of county commissioners, shall be allowed by them, if deemed reasonable, and paid as other claims on the county. JUSTICE TO ACT AS CORONER. Justice to act as SEC. 102. When there is'no coroner, or in case of his abcoroner, when. sence or inability to act, any justice of the peace of the same county is authorized to perform the duties of coroner in relation to dead bodies. SURGEON. 3ay summon SEC. 103. In the above inquisition by a coroner, where he physician or surgeon. or a jury shall deem it requisite, he may summons one or more physicians or surgeons, to make scientific examination, and may allow, in such case, a reasonable compensation, subject to the confirmation of the board of county commissioners. TRlEASURER. Treasurer elect- SEC. 104. A county treasurer shall be elected in each county, for tile term of two years, and shall, before he enters upon the discharge of his duties, execute to the board of county comGive bond. missioners of this county, a bond, with three or more sufficient sureties, to be approved by the board, and in such penal sum as they shall direct, which bond, with the approbation of the board indorsed thereon by their clerk, shall be filed in the office of the county clerk; and, in case the board of comnmissioners shall not be in session in time for any county treasurer to present his bond for their approval, as above specified, or he shall be unable, from any cause, to present his bond at any regular meeting of the board, after due notice of his election, then it may be lawful for such treasurer to present his bond to the chairman and clerk of the said board for their approval; and the approval indorsed thereon shall have the same effect as if done by the board of commissioners; and, in such cases, where the board shall not have fixed the penal sum of such bond, it shall not be less than twice the amount of all moneys Cu. 52.] COUNTIES AND COUNTY OFFICERS. 429 directed by the board to be levied in the county, and to be paid to such treasurer during the year. SEC. 105. The condition of such bond shall be in substance Condition of bond, as follows: "Whereas, The above bounden - was elected to the office of county treasurer of the county of --, on the --- day of --; now, therefore, the condition of this obligation is such, that if the said - and his deputy, and all persons employed in his office, shall faithfully and promptly perform the duties of said office, and if the said -..- and his deputies shall pay, according to law, all moneys which shall come to his hands, as treasurer, and will render a just and true account thereof, whenever required by said board of commissioners or by any provision of law, and shall deliver over to his successor in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto or belonging to his said office, then the above obligation to be void; otherwise to be in full force and effect." SEC. 106. The county treasurer may appoint a deputy, who, Deputy. in the absence of the treasurer from his office, or in case of vacancy in said office, for any disability of the treasurer to perform the duties of his office, may perform all the duties of the office of treasm er, until such vacancy be filled or such disability removed. SEC. 107. In case the office of county treasurer shall become vacancy. vacant, the board of county commissioners may, if in their opinion the interests of the county require it, appoint a suitable person to perform the duties of such treasurer, and the person so appointed, upon giving bond, with the like sureties and conditions as that required in county treasurer's bonds, and in such sum as said board shall direct, shall be invested with all the duties of such treasurer, until such vacancy shall be filled or such disability removed. SEC. 108. No person holding the office of sheriff, judge Of Persons noteliprobate, county attorney, county clerk, deputy county treas- gible. urer, nor any member of the board of commissioners, shall hold the office of county treasurer. SEC. 109. It shall be the duty of the county treasurer to re- Duties. [See ch. 53 —1.] ceive all moneys belonging to the county, from whatsoever Shall pay money only on orders source they may be derived, and all other moneys which are of county comby law directed to be paid to him. All money received by him for the use of the county shall be paid out by him only on the 28 430 COUNTIES AND COUNTY OFFICERS. [CH. 52. orders of the board of commissioners, according to law, except where special provision for the payment thereof is or shall be otherwise made by law. Accounts. SEC. 110. The said treasurer shall keep a just and true account of the receipts and expenditures of all moneys, which shall come into his hands by virtue of his office, in a book or books to be kept by him for that purpose, which books shall be open at all times for the inspection of the board of county commissioners or any member thereof, and to all county and terriSettlement. torial officers; and, at the annual meeting, in July, of the said board of commissioners, or at such other time as they may direct, he shall settle with them his accounts as treasurer, and for that purpose he shall exhibit to them all his books and accounts and all vouchers relating to the same, to be audited and allowed. What county or- SEC. 111. County orders, properly attested, shall be entitled ders entitled to preference. to a preference as to payment, according to the order of time in which they may be presented to the county treasurer; but, where two or more orders are presented at the same time, precedence shall be given to the order of the oldest date; but Orders receiva- every county treasurer shall receive in payment of county taxes, county orders issued in said county, which may be presented in payment for such county taxes. Deliver to uc- SE. 112. Upon the resignation or removal from office of any charge. county treasurer, all the books and papers belonging to his office, and all moneys in his hands, by virtue of his office, shall be delivered to his successor'in office, upon the oath of such preceding treasurer, or, in case of his death, upon the oath of his executors or administrators. If any such preceding connty Neglect to doliv. treasurer, or, in case of his death, if his executors or adminisistrators shall neglect or refuse to deliver up such books, papers and moneys, on oath, when lawfully demanded, every such person shall forfeit a sum of not less than one hundred dollars nor more than five hundred dollars, and be, also, liable upon his official bond for such refusal or neglect. Compensation. SEC. 113. The county treasurer shall receive the following [See ch. 99 —13.] compensation: For collecting taxes, six per centum on the first three thousand dollars; five per centum on the amount between three and four thousand dollars; four per centum on the amount between four and five thousand dollars; three per centum on all sums over five thousand and under ten thousand, and all over ten thousand, two per centum; two and a half per centum 3OH. 52.] COUNTIES AND COUNTY OFFICERS. 43 for receiving and paying out all moneys other than taxes and school fund; for every mile traveled, in going and returning to make settlements with the territorial treasurer and auditor, and to make deposits of territorial revenue, ten cents; for each tract or parcel of land sold for taxes, ten cents; Provided,Proviso. That in no case he shall receive more than two thousand dollars in any one year. Sm. 114. The county treasurer of each county shall be, by Act as collector of taxes. virtue of his office, collector of taxes therein, and shall perform Esee ch. 53-1.1 such duties in that regard as are prescribed by law. SEC. 115. It shall further be the duty of said county treas-Assess taxes in certain cases. urer to assess, at a fair value, the property of any person liable to pay taxes, whom the county assessor has failed to assess, and to place the same on the tax duplicate, and to collect taxes on the same, in the manner provided by law; Provided, however, That said treasurer shall not be compelled to see such Proviso. property in person; and, Provided further, That he be authorized to administer oaths to such person or any others, touching the value of said property, COUNTY SURVEYOR-TERM-BOND,. SEc. 116. A county surveyor shall be elected, for the termSurvoyor elected of two years, who shall give bonds to the board of county commissioners, to be approved by the county clerk of the proper county, in the sum of one thousand dollars, conditioned for the faithful discharge of his duties. MAY APPOINT DEPUTIES. SEc. 117. The county surveyor may appoint as many depu- Deputies, ties as he thinks proper, for whose official acts he shall be responsible. The certificate of the county surveyor or any of his deputies shall be admitted as legal evidence in any court of the Territory; but the same may be explained or rebutted by other evidence. DUTIES. SEC. 118. It shall be the duty of the county surveyor, by Duties. himself or one of his deputies, to execute any survey which may be required by' order of any court, or upon application of any individual or corporation. SHALL KEEP A RECORD OF SURVEYS, ETC. SEc. 119. The said surveyor shall keep a correct and fair eep rcord of record of all surveys made by him or his deputies, in a book to 432 COUNTIES AND COUNTY OFFICERS. [Ca. 52; be provided for that purpose by the county, which he shall transmit to his successor in office; he shall, also, number such surveys progressively, and shall, also, preserve a copy of field Field notes. notes and calculations of each survey, indorsing thereon its proper number, a copy of which, and, also, a fair and accurate plat, together with a certificate of survey, shall be furnished by said surveyor to any person requiring the same. Vacancy. SEC. 120. If the office of county surveyor be, at any time, vacant, the board of county commissioners are hereby empowered to appoint some suitable person to perform the duties of the office, until a county surveyor be elected. COUNTY ASSESSOR. Asessor elected. SEC. 121. A county assessor shall bc elected in each county, at the general November election, who shall give bond, with two or more freehold securities, in a penal sum, for the faithful Term, ac. performance of his duties, to the satisfaction of the board of county commissioners, and subscribe an oath or affirmation for the faithful performance of his duties as such assessor, and who shall be a qualified elector of said county, and shall hold his office for one year, and until his successor is elected and qualified. Deputies ap- SEC. 122. Whenever the board of county commissioners pointed, hen. shall be of the opinion that said assessor is unable to perform the duties of his office according to law, they may authorize said assessor to appoint one or more deputies, who shall be sworn and give bond similar to the principal himself. Compensation. SEC. 123. Such assessor and deputy or deputies shall receive [See ch..] from said county such a sum, not exceeding two dollars and a half per day, for each day of actual service in the discharge of said duties, as the said board of county commissioners may deem right and just to allow. MISCELLANEOUS PROVISIONS CONCERNING COUNTY OFFICERS. ffices at county SEC.`124. Every sheriff, county clerk, register of deeds, county treasurer, county attorney or probate judge shall keep his office at the seat of justice of his county, and in the office provided by the county, if any such has been provided; and, if there be none established, then at such place as shall be fixed by special provisions of law; or, if there be no such provis CH. 52.] COUNTIES AND COUNTY OFFICERS. 433 ions, then at such place as the board of county commissioners Shall kep oing shall direct, and they shall each keep the same open during the business hours usual business hours of each day, (Sundays excepted;) and all Forfeiture in books and papers required to be in their offices shall be open for the examination of any person; and, if any person of said officers shall neglect to comply with the provisions of this section, he shall forfeit, for each day he so neglects, the sum of five dollars. OFFICERS SHALL BE QUALIFIED AND DEPOSIT BONDS. SEC. 125. Every county officer named in this chapter shall, Execute bond before entering upon the duties of his office, and within twenty within twenty days after receiving official notice of his election or appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond, as prescribed by law; and any such officers shall, also, within the same time, take and subscribe the oath of office prescribed by law, before some officer authorized to administer.oaths, and deposit the same with his official bond, to be filed and preserved therewith. DEPUTY TO TAKE OATH OF OFFICE. SEC. 126. Every deputy appointed to any of said offices Deputies to take shall, before entering upon his duties under such appointment, take and subscribe the like oath of office as that required to be taken by the officer appointing him, and shall deposit the same in the office where the bond of such officer is deposited. COPIES OF ALL DOCUMENTS RECEIVED AS EVIDENCE. SEC. 127. Copies of all documents, writs, proceedings, in- Copios of doeustruments, papers and writings, duly filed or deposited in the asevidence. office of any judge of probate, register of deeds, county clerk or county treasurer, and transcripts from books of records or Former oMeers. proceedings, kept by any of said officers, with the seal of his;office affixed, shall bexprimafacie evidence in all cases. SEC. 128. All officers provided for in this act, who were Provisionsfor elected at the general election in 1859, shall hold their re-'letions. spective offices for the term for which they were elected. At the spring election, in AMarch, in the year 1860, there shall be elected for each county three county commissioners and one assessor, who shall hold their office until the first day of Janu 434 CoUTIEas AND COUNTY OFFICERS. [Ca. 5~. ary, A. D., 1861, and the city of Leavenworth is hereby authorized to hold an election in its various wards, on said fourth Monday in March,. 1860, for the purpose of voting for county commissioners, the same to be governed by the general election law of this Territory, and in conformity to the provisions of this act, in all respects whatever. Meaning of SEc. 129. That, whenever, in any law of this Territory, the terms in preo vious laws. words " county supervisors," "county board of supervisors" or " tribunal transacting county business " are used, it [they], shall be construed to mean " county commissibners," and the voting for such commissioners and assessors shall be at the usual place of holding general elections. Resignations, SEC. 130. All county officers who hold their office by election how made. shall make their resignation to the officer or officers authorized by law to fill such vacancies in such office respectively. Offices vacant, SEC. 131. Every county office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: First, The death of the incumbent. Second, His resignation. Third, His removal. Fourth, His ceasing to be an inhabitant of the county for which he'was, elected or appointed. Fifth, His conviction of any infamous crime or any offence involving a violation of his official oath. Sixth, His refusal or neglect to take his oath of office, or to. give or renew his official bond, or to deposit such oath and bond within the time prescribed by law. Seventh, The decision of a competent tribunal, declaring void his election or appointment. Eighth, The governor shall, also, declare vacant the office of every officer required by law to execute an official bond, whenever a judgment shall be obtained against such officer for a breach of the condition of such bond. Acts repealed. SEC. 132. That the act entitled " An Act relating to Couaties and County Officers," approved February 8, 1859, and all other acts or parts of acts, except an act entitled " An Act establishing a Code of Civil Procedure," approved February the 11th, 1859, and "An Act establishing a Code of Criminal Procedure," approved February 19, 1859, upon this subject, be and the same are hereby repealed. Section excepted SEC. 133. This act to take effect and be in force from and after the first day of Mlarch next, except the eleventh section of this act, which shall take effect and be in force froma addi after its passage. Approved February 25, 1860. CH. 53-54.] COUNTIES. 435 CHAPTER LIII. (Acts of 1860, Chapter XLIX.) AN ACT Respecting the Duties of County and Township Officers. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. The county treasurer of each county shall be Treasurers auauthorized to receive and receipt for taxes in their counties, at ceive taxes. all times, where the same are due. SEC. 2. It shall be the duty of each township and county Townshipand county clerk to clerk, on the levying of the township and county tax by the certify tamount of taxes to counrespective boards thereof, to certify the amount to the county ty treasurer. treasurer, who shall keep a record of the same. SEC. 3. It shall be the duty of each township clerk, on the Township clerk to certify copy receipt of the assessment rolls of their townships, to certify a of assessment roll to county copy of the same to the county treasurer. treasurer. SEC. 4. This act to take effect from and be in force from and after its passage. Approved, February 27, 1860. CHAPTER LIV. (Acts of 1861, Chapter XIX.) AN ACT Relating to the Organization of New Counties. Be it enacted by the Legislature of the State of Kansas: SECTION I. That, when it shall be made to appear, by the ow new counties may be oraffidavit of three resident freeholders, in any one of the unor- ganized; how many inhabiganized counties of this State, that such county contains atants. population of not less than six hundred -inhabitants, and twenty or more of such inhabitants being freeholders, may, by memorial, petition the Governor to appoint three persons, therein mentioned, to act as special county commissioners, and one person, by them named, to act as a special clerk for such county; and shall, also, name some place, centrally located in the county, for a temporary county seat; whereupon it shall be the duty of the Governor to appoint and commission the persons so named for special county clerks, and shall, by an appointment under his hand and seal, declare the said place the temporary county seat of such county. SEC. 2. That said commissioners and such clerk, before en 436 COUNTIES. [CH. 54. Commis"ioners tering upon the discharge of their respective duties, shall take and clerk shall ribean oathb- and subscribe an oath, faithfully, promptly and impartially to perform them as herein required; and such oath shall be filed with and kept in the office of the county clerk. How commis- SEC. 3. The said commissioners, or a majority of them, shall sioners shall pro. cedtoorganizeproceed to divide such county into suitable and convenient counties. ech county Su townships. Each township shall constitute an election precinct, and such commissioners shall give at least thirty days previous notice of the time which they shall fix upon for holding the first election of township and county officers, by conspicuously posting up, in three of the most public places in each township, notices of such election, subscribed by a majority of themselves, and attested by the clerk; the notices posted in each township specifying the place for voting therein. How elections SEC. 4. The voters, at such elections, may assemble at nine shall be conducted. o'clock, A. M., in each election precinct; shall select from among themselves three judges and two clerks for the election, who, before they enter upon the discharge of their duties, shall take the oath required by law of judges, or inspectors and clerks of election, any one of whom may administer such oath to the others; and the said election shall be governed by the laws regulating elections, in force at the time. The special commissioners appointed for the county, shall constitute the board of canvassers for such election, and, in the discharge of their duties as such, shall be governed by the law in force at that time. County seats SEc. 5. At such first election, the voters of the county shall may be permanently located, determine the permanent location of the county seat of the county, by depositing a ballot, upon which shall be written or printed, the words, "for the county seat,"' followed by the name of the place voted for; and the place receiving a majority of all the votes cast, shall be declared the permanent county seat of the county: Provided, however, that any person or persons interested, and claiming that the place so declared the county seat, was not made such by a majority of the legal votes cast at such election, may, upon giving full security for all the costs of the contest, in case of their failure therein, contest such election before the district court of the county, or of that county to which the same may be annexed for judicial purposes; and, Provided further, That in case no place shall receive a majority of all the votes cast, there shall, CH. 54.] COUNTIES. 437 at the next general election, and at each general election thereafter held, be a vote taken for the location of the county seat, until some place shall have received a majority of all the votes cast at some one election upon that question. SEC. 6. At the time of counting the votes at any election Duty of judges and inspectors. at which a vote shall be taken for. the permanent location of the county seat, it shall be the duty of the judges or inspectors of the election, in each precinct, to canvass the votes cast for such location, and make a certified return thereupon to the board of county commissioners, wherein they shall state the whole number of votes cast, the name of each place voted for, and the number of votes given for each; which return shall be attested by the clerks, and shall be returned at the time of making other returns to the board of county commissioners, who shall, from such returns made to them, determine the whole number of votes given for each place in the county, which shall be entered upon the records in the office of the county clerk; and, when some one place in the county shall have received a majority of all the votes cast in the county at one election, it shall be the duty of the county clerk, under his hand and seal, to certify the result to the Secretary of State. SEC. 7. Whenever any county, organized under the provis- Organizedcounties shall proions of this act, shall have been previously attached to any urethe records from the counother county for municipal purposes, it shall be the duty oftiesto which the county clerk, chosen at the first election, after havingtached. qualified according to law, to procure, from the proper officer of such county, a transcript of all deeds, mortgages, judgments and liens, of every description, upon real or personal property lying or being in such newly organized county, and cause the same to be recorded in the proper offices of his own county. Such clerk shall be at full liberty to take such transcripts himself, and, when recorded in the proper office of his own county, shall stand headed with the name of the county and offices where taken; and, at the end of them, certified that they are correct; and such clerk shall receive, for his services, ten cents per folio for taking such transcripts, ten cents per folio for recording them, and ten cents per mile for traveling, in going after and returning with them, which shall be audited, allowed and paid to him by his own county. SEC. 8. Any person elected to a township office, at the first How Olong shalf ol when qualioffice.ed, s the lw dets election, shall, when qualified, as the law directs, continue to 438 COUNTY OF ANDERSON. [Cr. 55. hold his office until the next annual township meeting, and until his successor shall be elected and qualified; and all county officers shall, in like manner, hold until the next general election, and until their successors shall be elected and qualified. Duty of county SEC. 9. It shall be the duty of the county commissioners commissioners. to make out and cause to be entered upon the records of the county, an accurate description of the townships into which the county shall, by them, have been divided; and it shall be the duty of the county clerk to make out and transmit to the Secretary of State, a map of the county, as divided into townships, and the name and description of each township. Conflicting acts SEC. 10. All acts in conflict herewith are hereby repealed. SEc. 11. This act shall take effect and be in force from and after its publication in some newspaper of general circulation in this state, and it shall be the duty of the Secretary of State to cause the same to be published immediately after its passage. Approved June 4, 1861. I hereby certify that the above bill became a law, by publication in the " Topeka State Record," June 15, 1861. J. W. ROBINSON, Secretary of State. CHAPTER LV. (Acts of 1862.) AN ACT to provide for the Permanent Location of the County Seat of Anderson County, and to Repeal an Act entitled " An Act to Provide for the Permanent Location of the County Seat of Anderson County;" Approved SFebruary 7, 1859. Be it enacted by the Legislature of the State of Xcansas: Election. SECTION 1. That there shall be held at the usual place of holding elections, in the different precincts within the county of Anderson, State of Kansas, on Tuesday succeeding the first Monday in November, 1862, an election for the location of the permanent seat of justice of the said county of Anderson, and a poll shall be opened at each of the places aforesaid, and every legal voter of said county may vote for the place of his choice, and the place receiving a majority of the votes cast shall be the permanent seat of justice of said county. Second election. SEC. 2. That in case no place receives a majority of the votes cast, there shall be held a second election for the said seat of justice, on the fourth Monday of March, 1863. The Ch. 54.] COUNTY OF ANDERSON. 439 balloting on the second election shall be confined to the two places having the highest number of votes in said first election. SEC. 3. That the voting shall be by ballot, on which shall Poll book shall be returned be written or printed the place of the voter's choice, and the within five days. poll book on which the voters' names are recorded, and the number of votes each place received, properly attested, shall be returned to the clerk of Anderson county within five days after said election, and the board of commissioners of said county shall, at the same time of canvassing the other votes Board of commissioners to cast at said election, proceed to canvass the votes for said seat canvass votes. of justice, and the place having a majority of all the votes The plorac having a majority cast, shall be proclaimed by them the permanent county seat of votes cast to be permanent of said county of Anderson, either by written or printed proc- county seat. lamation, and have them posted up in at least two places in each township in said county. SEC. 4. That if, upon the canvassing of said votes by said commissioners, they shall find that no place has received a majority of all the votes cast, it shall be their duty to proclaim the same and also the time of the second election, as herein provided, and the canvass of the votes of the second election and proclamation of the result shall be the same as at the first. SEC. 5. That it shall be the duty of said commissioners to County buildimnmediately provide suitable buildings, offices, etc., at the ingsand ofces. county seat for the officers of said county, and each officer of the said county of Anderson, whose office is required by law to be kept at the county seat, shall within twenty days after the date of said proclamation, remove all books, records, papers, furniture, etc., belonging to the county, to the place therein named, and if any officer shall fail to remove within the time prescribed by this section, he or his securities shall pay to the county the sum of five dollars for each day of such failure, to be sued for and collected by the board of county commissioners. SEC. 6. The election provided for in this act, shall be conducted in all respects as provided for by the general election laws of the State, and all persons shall be qualified to vote at the said election who are voters under said laws. SEC. 7. That an act entitled " An Act to Permanently Lo- Formr act rea pealed. cate the County Seat of Anderson County," approved February 7th, 1859, be and the same is hereby repealed. SEC. 8. This act shall take effect and be in force from and after its publication in the Statutes. Approved March 3, 1862. 440 COUNTY OF ATCHISON-CHASE. [OH. 56-57. CHAPTER LYI. (Acts of 1862.) AN ACT to enable the Board of County Commissioners of Atchison county to correct and revise the Tax Books, for the year 1861. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the Board of County Commissioners of the county of Atchison, shall have power to change, alter and correct any errors in the assessment or computation of taxes, or any other defect that may exist in the tax list for the year 1861, now in the hands of the Treasurer of said county. SEC. 2. This act shall be in force from and after its passage. Approved February 22, 1862. CHAPTER LVII. (Acts of 1862.) AN ACT providing for the permanent location of the county seat in and for the county of Chase. Be it enacted by the Legislature of the State of Kansas: Election. SECTION 1. There shall be an election held at the several precincts, in said county, on the first Tuesday in August, A. D. 1862. The electors of said county shall express their sense of the propriety of locating, permanently, the county seat for said county, by voting as follows, viz.: "For the permanent location of the county seat," or,!" Against the permanent location of the county seat." Said election shall be conducted in accordance with the law regulating general elections. SEC. 2. The judges of election for each precinct in said county, shall transmit by a sworn messenger to the county clerk, a copy of the poll books containing the result of said election before the meeting of tlie county Board of Commissioners to equalize the assessment, to be holden on the third Tuesday in August, A. D. 1862; and it shall be the duty of the County Board of Commissioners, at their meeting on the ounty commis- third Tuesday in August, A. D. 1862, as aforesaid, to canvass sioner to canvass votes. the votes cast at said election. Generalelection. SEC. 3. In case a majority of the votes so cast shall be for permanent location of the county seat, then there shall be an election held at the several precincts in said county, at the Cu. 58.] COUNTY OF DICKINSON. 441 general November election, A. D. 1862, when each elector shall vote, one vote or ballot designating the place of his choice for said county seat. SEC. 4. If any one point so voted for shall receive a majority of all the votes so cast, then the County Board of Commissioners shall declare the said point to be the permanent county seat for said county. SEC. 5. In case no point shall receive a majority of all the n case no place receive a majorvotes cast, then the two points having the highest number ofity. votes at said election, holden as aforesaid, shall be voted for at the election to be holden in March, A. D. 1863. SEC. 6. The County Commissioners at their meeting to canvass the result of said "March" election, shall canvass the votes cast for the two points, as aforesaid, and the point having received the highest number of votes as aforesaid, shall be declared by the Board of County Commissioners, to be the permanent county seat for said county. SEC. 7. This act shall take effect and be in force from and after its publication once in the Emporia News. Approved March 6th, 1862. CHAPTER LVIII. (Acts of 1862.) AN AT providing for the permanent location of the County Seat, in and for the county of Dickinson. Be it enacted by the Legislature of the State of Kansas: SECTION 1. At the election to be holden for township officers Election con. on the fourth Monday in March, A. D. 1862, the electors oftion'ofthe county seat. the county of Dickinson shall express their sense of the propriety of locating, permanently, the county seat for said county, by voting as follows, viz.: "For the permanent location of the county seat," or, " Against the permanent location of the county seat." SEC. 2. It shall be the duty of the judges of election of each Duty of the judges of elecprecinct in said county, to transmit by the hand of a sworn tion. messenger, to the county clerk, a copy of the poll books containing the result of said election, before 12 o'clock, M., the first Tuesday in April following said election. SEC. 3. The Board of County Commissioners of said county Special meeting shall meet at their office on the first Tuesday in April next fol- issionters.com y~~~~~~~isoes 442 COUNTY OF DICKINSON. [Ci. 58. lowing said election, at two o'clock, P. M., and then and there canvass the result of said election. If a majority SEC. 4. In case a majority of the votes cast shall be for pervote for locating county seat, sec- manent location of the county seat, then there shall be an ond election to be held. election holden at the several precincts in said county, on the first Tuesday in August next following, when each elector shall vote one ballot designating the place of his choice for said county seat, said election to be conducted in accordance with the law regulating general elections. Duty ofljdges SEC. 5. The judges of election for each precinct in said county, shall transmit by a sworn messenger to the county clerk, a copy of the poll book containing the result of said election, before the meeting of the County Board of Commissioners to equalize the assessment to be holden on the third Tuesday in August, A. D. 1862. SEC. 6. It shall be the duty of the County Board of Commissioners, at their meeting on the third Tuesday in August, A. D. 1862, as aforesaid, for the equalization of the assessment, to canvass the votes cast at said election. Ina Secase any SEC. 7. If any point so voted for shall receive a majority of majority. all the votes so cast, then the County Board of Commissioners shall declare the said point to be the permanent county seat for said county. SEC. 8. In case no point shall receive a majority of all the votes cast, then the two points having the highest number of votes at General election said election holden, as aforesaid, shall be voted for at the general election to be holden in November next following. SEC. 9. The result of said vote shall be returned with the poll books of said election by the judges of the several precincts to the county clerk as prescribed by law. SEC. 10. The Board of County Commissioners at their meeting to canvass the result of said general election, shall canvass the votes cast for the two points, as aforesaid, and the point having received the highest number of votes, as aforesaid, shall be declared to be the permanent county seat for said county. SEc. 11. This act shall take effect and be in force from and after its passage. Approved February 25, 1862. Ci. 59-60.] COUNTY OF DONIPIIAN-GREENWOOD. 443 CHAPTER LIX. (Acts of 1862.) AN ACT to legalize the action of the County Board of Doniphan County. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the action of Jacob Pierce, one of the Actions of Jacob Pierce and Hencounty commissioners of Doniphan county, and Henry Bo- ry Boder, Jr., legalized. der, jr., clerk of said county board, in filling the place of Eli Gabbert, late member of the county board, by their appointment of E. Case as a member of said board, be and the same is hereby legalized. SEC. 2. That the action of the said county board thus organized, in canvassing the votes cast at the election held November 5, A. 1). 1861, be and the same is hereby legalized. SEc. 3. This act to take effect and be in force from and after its publication; and the Secretary of State is hereby directed to have this act published, for two weeks, in the " White Cloud Chief," which shall constitute such publication. Approved February 5, 1862. CHAPTER LX. (Acts of 1862.) AN ACT to organize the County of Greenwood, and to provide for the temporary location of the seat of justice therein. WHEREAS, a recent decision of the supreme court has affirmed Preamble. the validity of an act passed by the Territorial Legislature, at its last session, by which the county of Madison was divided, and the northern portion annexed to Breckenridge county, and the southern portion to Greenwood county; and whereas Greenwood county is destitute of a municipal organization, and the citizens of Madison county residing in that portion annexed to Greenwood are thus deprived of many of their rightful privileges of local government; therefore, Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the county of Greenwood be and hereby County commis. sioners. is organized, by the appointment of Franklin Osborn, M. E. Stratton, and R. H. Gasaway county commissioners of said county. 444 COUNTY OF LYON. [CH. 61. Their duties. SEC. 2. That it shall be the duty of the said commissioners, at least ten days prior to the fourth Monday in March next, to County seat. meet in the town of Janesville, which is hereby made the temporary county seat of said county, and divide said county into townships, and establish election precincts therein acElection, cording to the provisions of the general election law, and to give immediate notice, in writing, to the people of the county of their acts, and of the election to be held, and the officers to be elected at the election to be held on the fourth Monday in March ensuing. Ot her officers. SEC. 3. The said board of county commissioners shall appoint such other county officers as are provided for in the act, entitled " an act relating to county officers," approved February 25, 1860; and said commissioners and other county officers shall hold their offices until their successors are elected and qualified. Generalelection. SEC. 4. That a general election for county officers shall be held on the Tuesday after the first Monday in November, 1862, as provided in the general election law of the State, at which time a full list of county officers shall be chosen. commissioner SEC. 5. It shall be the duty of the board of commissioners districts. created by this act, at some regular meeting prior to the general election in November next, to divide the county into three commissioners' districts, and at said election three commissioners shall be elected for the county, one of whom shall reside in each district. SEC. 6. This act shall take effect and be in force from and after its passage. Approved March 3. 1862. CHAPTER LXI. (Acts of 1862.) AN ACT to change the name of Breckenridge County to Lyon County. Be it enacted by t/he Legislature of the State of Kansas: Name of Breck- SECTION 1. That the name of "Breckenridge" county in changed to Lyon this State is hereby changed to "Lyon" county. Change of name SEC. 2. That all judgments, orders, pleadings, processes, not to affect existing actions. contracts, records, actions, suits, proceedings, or writings whatsoever, existing or pending in said county of Brecken CO. 62-63.] COUNTY OF LYON-MADISON. 445 ridge, wherein the name of the said county of Breckenridge is used, shall exist and be carried to final settlement, determination, and execution as though no change in the name of said county had been made. SEC. 3. That as soon as this act shall pass the Legislature, and receive the approved of the Governor, it shall be published in the " State Record,"' and take effect thirty days after its publication. Approved February 5, 1862. CHAPTER LXII. (Acts of 1862.) AN ACT setting apart "Washington Park," in the Town of Emporia, Breckenridge County, in the State of Kansas, for County Buildings. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That all that certain piece or parcel of landWashington Park set apart situate in the town of Emiporia, in the county of Brecken- as a site for county build. ridge, and State aforesaid, described in the lithograph plat of ings. said town, and known as "Washington Park," be and the same is hereby set apart as a site for the county buildings of the said county of Breckenridge. SEC, 2. The change of the name of the said county of Breckenridge shall not affect the operation or validity of this act. SEC. 3. This act to take effect and be in force from and after its publication in the statute book. Approved February 4, 1862. CHAPTER LXIII. (Acts of 1862.) AN ACT to provide for transferring, transcribing, and legalizing the Records of Madison County, and to legalize the official acts of the County and Township Officers of said County. Be it enacted by the Legislature of the State of Jfansas: SECTION 1. That the treasurer, register of deeds, and county tor of ad,'eand county clerk to clerk of Madison county, State of Kansas, are hereby com-doelivter oer pamanded to deliver over to the treasurer, register of deeds, per. 29 446 COUNTY OF MADISON. [Ca. 63. and county clerk, respectively, of Lyon county, immediately upon the passage of this act, all the books, papers, and records belonging to their respective offices. Duty of register SEC. 2. It shall be the duty of the register of deeds of Lyon of deeds of Lyon county. county, immediately upon the delivery of the books as aforesaid required to be delivered to him, to proceed to transcribe therefrom all deeds, mortgages, or other instruments of writing affecting any of the real estate detached from said Madison county, and attached to Lyon county, by an act of the Legislature of the Territory of Kansas, entitled "an act defining the southern boundary line of Lyon county, and other purposes," approved January-31, 1861, whether recorded in said Madison county before or after the passage of the aforementioned act. Duty of register SEC. 3. It shall be the duty of said register of deeds of of deeds of Greenwood Lyon county, immediately upon completing the transcript aforesaid, to deliver the said record books of Madison county to the register of deeds of Greenwood county, who shall proceed to transcribe therefrom, into the regular record books of Greenwood county, all deeds, mortgages, and other instruments of writing affecting any of the real estate detached from said Madison county, and attached to Greenwood county, by the aforesaid act of the Territorial Legislature. SEC. 4. The said records, when transcribed as hereinbefore provided, shall be as valid and binding in law as though first recorded in the office of the register of deeds of the counties of Lyon and Greenwood, respectively. Compensation. SEC. 5. The aforesaid registers of deeds shall receive, for their services under this act, the same fees as are now allowed by law for like services, to be paid out of the treasuries of their respective counties. Duty of treasn- SEC. 6. It shall be the duty of the treasurer of Lyon county rer of Lyon county. to transcribe from the treasurer's book of Madison county, into the treasurer's book of Lyon county, before the first day of June, 1862, the names of all tax-payers, and a list of all taxable property within that portion of Madison county so, as aforesaid, detached from Madison county, and attached to Breckenridge county, and shall proceed to collect and receipt for all taxes due and unpaid by said persons and on said property, according to the levy and assessment of the proper authorities of said Madison county. Can. 64.] COUNTY OF OsAGh - 447 SEC. 7. It shall be the duty of the county clerk of Lyon Duty of county clerk of Lyon county to make out, from the records of Madison county,county. delivered to him by the county clerk of Madison county, a statement of the amount of Madison county warrants outstanding, and furnish the same to the treasurer of Lyon county, who shall then be authorized to receive an amount of said scrip in payment of the county taxes of Lyon county, not exceeding the proportion which the amount of taxable property on that portion of said Madison county attached to Breckenridge county, in the manner aforesaid, bears to the whole amount of taxable property of said Madison county. SEC. 8. Immediately upon completing the transcript afore- Treasurer of Greenwood said, it shall be the duty of the treasurer of Lyon county to county to collect deliver said books to the treasurer of Greenwood county, who shall proceed to -collect the unpaid taxes due upon property lying in that portion of Madison county so, as aforesaid, attached to Greenwood county, in the same manner as if the same had been regularly assessed in Greenwood county, and shall receive, in payment therefor, the remaining outstanding warrants of said Madison county. SEC. 9. The levy, assessment, and collection of taxes, in Official actslesaid Madison county, for the years 1860, 1861, and 1862, and galized. all sales of land for taxes for these years, and all the official acts of the county and township officers for the said years, are hereby made legal and valid in all respects. SEC. 10. This act shall take effect and be in force from and after its passage. Approved March 5, 18620 CHAPTER LXIV. (Acts of 1862.) AN ACT providing for the temporary location of the County Seat of Osage County. Be it enacted by the Legislature of the State of Iansas: SECTION 1. That there shall be a vote taken, at the regular Electionfortem porary location township election, to be held on the fourth Monday in, March, seat of justice. 1862, in the county of Osage, State of Kansas, by the legal electors of said county, for the location of the temporary seat of justice of the said county of Osage, and a poll shall be 448 COUNTY OF OSAGM. [CI. 64, opened at each of the different election precincts within the county aforesaid, and every voter of said county may vote for the place of his choice, and the place receiving a majority of, all the votes cast, shall be the temporary seat of justice of said county. In case no place SEC. 2. That, in case no place receives a majority of all, receives majorityof votes,sec-the votes cast, there shall be held a second election for said ond election shall be held. seat of justice, on the first Tuesday of May following, at which second election the balloting shall be confined to the two places having the highest namber of votes at the said first election. SEC. 3. That the voting shall be by ballot, on which shall be written or printed the place of the voter's choice; and the poll-books, on which the voters' names are recorded, and the number of votes each place received, shall be returned to the clerk of Osage county within five days after the election, and the board of commissioners of said county shall immediately proceed to canvass the votes; and the place having a majority of all the votes cast, shall be proclaimed by them the temporary seat of justice of said county, either by written or printed proclamation, and have the same posted tip in at least two places in every township. SEC. 4. That if, upon canvassing said votes by the said commissioners, they shall find that no place has received a majority of all the votes cast, it shall be their duty to proclaim the same, and also the time of the second election, as herein provided; and the canvass of the second election, and the proclamation of the result, shiall be the same as at the first. County build- SEC. 5. That it shall be the duty of said commissioners to ng,offices, &. immediately provide suitable buildings, offices, etc., at the county seat, for the officers of said county; and each officer of the said county of Osage, whose office is required by law to be held at the county seat, shall, within twenty days after said Books, papers, proclamation, remove all books, records, papers, furniture, etc., &c., to be removed to county belonging to the county, to the place therein named; and if seat. any officer shall fail to remove within the time prescribed by Penalty for fail- this section, he or his sureties shall pay to the county the sum ure to do so. of five dollars for each and every day of such failure, to be sued for and collected by the board of county commissioners. SEC. 6. The elections provided for in this act, shall be conducted, in all respects, as provided for by the general election CH. 65-6T6.] CovUNT OF POTAWATOMIE-COURTS. 449 laws of the State. All persons shall be qualified to vote at said elections, who are voters under said laws. SEC. 7. All acts and parts of acts conflicting with this act,are hereby repealed. SEC. 8. This act shall take effect and be in force from;and after its publication once in the "State IRecord." Approved February 10, 1862. CHAPTER LXV. (Acts of 1862.) AN ACT to provide for the permanent location of the seat of justice of Potarwatomie County. W.hEREAS, elections have been held for the permanent location Preamble. of the seat of justice of Potawatomie County, according to the provisions of an act passed at the last session of the Legislature of the Territory of Kansas, entitled an "Act for the permanent location of the seat of justice of Potawatomie County;" and, WHEREAS, the town of Louisville, in said county, received the highest number of votes cast at the first and second election, and a majority of all the votes cast at the third and final election, as required by said act; therefore MBe it enacted by the Legislature of the State of Kansas. SECTION 1. That the seat of justice of Potawatomie County County seat located at the be and the same is hereby declared established and perma- town of Louisnently located at the town of Louisville, in the said county of Potawatomie. SEC, 2. This act shall in force from and after its passage. Approved February 22, 1862. CHAPTER LXVI.,(Acts of 1861, Chapter XXI.) AN ACT to organize and define the jurisdiction of the Supreme Court. Be it enacted by the Legisllature of the State of Kansas: SECTION 1. That the Supreme Court shall be a court of urisdiction of record9 and shall have power, in addition to the original juris- up court, 450 COURTS. [C,. 66G. diction conferred by section three of article three of the Constitution, on good cause shown, to issue writs of error and certiorari in criminal cases, and supersedeas in any case, and all other writs not specially provided for nor prohibited by statute, which may be necessary to enforce the due administration of justice throughout the State; and either of the Justices of the Supreme Court, in vacation, shall, on good cause shown, have power to grant writs of error and certiorari in criminal cases, and also, to grant writs of habeas corpus and supersedeas in any case, and such writs of error and certiorari, directed to the District Court, may, by the Justice or the Supreme Court granting the same, be made returnable to the Supreme Court. The court shall have power to punish for contempt by fine and imprisonment. uRles of the s. C SEC. 2. The modes of proceeding in error, prescribed by law Territory shall for the late Territorial Supreme Court, and all process and govern under BState. remedies authorized by law, when the present Constitution took effect, not hereinbefore provided for, and all laws reguIating the practice of and imposing duties on or granting powers to the Supreme Court, or any Judge thereof, at the time the Constitution took effect, shall govern the practice of and be pursued in the Supreme Court of the State. The Court shall have power to prescribe rules of practice and change the same, and provide for their publication. Shallhold terms SEC. 3. It shall be the duty of the Justices of the Supreme when. Court, to meet, annually, at the seat of government, on the first Tuesday of January, to hold a term of the Supreme Court, and the said Justices may hold special and adjourned terms at such times and places as a majority of them may determine, but notice of the time and place of holding such special or adjourned term, must be given by publication for twenty days, in a newspaper printed at the seat of government. court may ad. SEC. 4. If a quorum of said court shall not be in attendance journ from day to day. on the first day of the term, the clerk of said court shall enter such fact on record, and the court shall stand adjourned till the succeeding day, and so from day to day for three days; and, if said court shall not be opened within three days, all matters pending in said court shall stand continued until the next term, and no action or matter shall abate or be discontinued thereby. Records shallbe SEC. 5, The records and papers of the Supreme Court shall kept at seat of government. be kept at the seat of government, in a suitable room, to be Cu. 66.] COURTS. 451 provided for the accommodation of the court, and not be removed therefrom unless by direction of the court, and then only so long as the court may permit. The Supreme Court shall appoint a crier, who shall attend the sessions of the court and take charge of the room provided for the use of the court, and perform such other duties as may be required of him by the court or enjoined by law. SEC. 6. It shall be the duty of the clerk of the Supreme Duty ofolerk. Court to enter of record all orders, judgments, decrees and proceedings of said court, and to issue all process ordered by the court, and perform such other duties as may be required of him by the court or by law. SEC. 7. Before entering on the duties of said office, the clerk clerk shall give bond. shall give bond to the State of Kansas, in a penal sum not less than ten thousand dollars, with sufficient sureties, to be approved by the court, conditioned for the faithful performance of the duties of his said office, and take and subscribe the oath of office, and his fees shall be the same as the clerks of the District Courts. SEC. 8. All process or writs issuing out of the Supreme Court All process shall be directed to shall be directed to the sheriff or other proper officer of thesheriff county where the same is to be executed, who shall serve the same; Provided, That the crier of said court shall have power to serve any such order, warrant, notice or citation issuing out of said court, and shall receive the same fees therefor as other officers are entitled to for like services. SEC. 9. The Supreme Court may, by special mandate or May order infeother proper mode, require the District Court, or any otherr'i! courtl to court or tribunal of the county, where any action or proceed- its decrees. ing shall have originated, to carry the judgment or decree of the Supreme Court into execution; and the same shall be carried into execution, by proper proceedings, by such inferior court or tribunal, according to the command of the Supreme Court made therein. SEC. 10. This act shall take effect and be in force from and after its publication. Approved May 21, 1861. 452 COURTS. [CH. 67. CHAPTER LXVII. (Acts of 1862.) AN ACT prescribing the duties of Reporter of the Supreme Court. Be it enacted by the Legislature of the State of Kansas: orposter, when SECTION 1. The reporter of the Supreme Court, appointed hllualfy by the Judges of said court according to the provisions of the Constitution, shall, before entering upon the duties of his office, and within thirty days of his appointment, take and subscribe the oath of office, and cause the same to be filed in the office of Secretary of State. Notes of decls- SEC. 2. It shall be the duty of the Justices of the Supreme ions. Court to prepare and deliver to the reporter full notes of all decisions made by them, which they shall deem of sufficient importance to publish. To be published: SEC. 3. The reporter shall faithfully and truly prepare all such decisions for publication, and when, in the opinion of the court, it shall be necessary to a proper understanding of B3riefs. the decision, he shall report therewith a brief statement of the case and of the. arguments of the counsel therein. volume of de- SEC. 4. As often as the decisions of said court shall be sufficisions, when to be published. cient to constitute a volume of not less than four hundred pages, it shall be the duty of the reporter to procure to be printed and published, in a neat and substantial manner, of ordinary law size, and upon the most advantageous terms practicable, an edition of one thousand copies of such reports; and upon the completion of such publication, the auditor shall draw his warrant upon the State Treasurer for the cost of publication. Distribution of SEC. 5. Two hundred copies of said reports shall be dereports. posited by the reporter with the Secretary of State, to be distributed as follows: Two copies to the library of Congress of the United States, one copy to the library of each of the States and Territories, two copies to the library for the use of the Supreme Court, one copy to be deposited with the clerk of each county in the State, and the remainder of said two hundred copies to be deposited in the State Library. Exchange of re. SEC. 6. The Secretary of State may exchange any of the Reports deposited in the State Library in pursuance of the preceding section, after reserving therein at least ten copies, for such other Reports or other works on law or equity as the Cs. 67.] COURTS. 453 Justices of the Supreme Court shall designate, which Reports or other works procured by such exchange, shall be deposited in the library for the use of the Supreme Court. SEC. 7. The remaining eight hundred copies of said Reports Sale of reports. shall be offered for sale by the reporter at a price not exceeding three dollars and fifty cents for each copy sold to or for the use of residents of this State; and five dollars for each copy sold to or for the use of persons residing out of this State. SEC. 8. The reporter may in his discretion exchange any Exchangeand sale of reports number of copies of said Reports, not exceeding five hundred, exchanged. for the reports of decisions of courts of other States, aud sell the reports received in exchange, if he shall deem it advantageous to do so. SEC. 9. The reporter of the Supreme Court may, whenever Pamphlet edithe Justices of the Supreme Court shall deem it advisable,ti~ of reports. procure to be printed pamphlet editions of the decisions of said court, the same to be done without expense to the State. The reporter of the Supreme Court shall receive an annual salary Salar ofre of one thousand dollars, payable quarter-yearly out of any moneys in the State Treasury not otherwise appropriated. SEC. 10. Upon the publication of each and every edition of Auditing of acReports pursuant to the foregoing provisions, and before any warrant shall be drawn by the auditor for the cost of such publication, the reporter shall execute and file with the Secretary of State a bond to the people of this State in the penal Bond. sum of five thousand dollars, with sufficient sureties, to be approved by said secretary, conditioned to account to the auditor for, and to pay over to the State Treasurer all such moneys as he shall receive for the State, on account of the sale of said Reports. SEc. 11. The copyright of all volumes of Reports, pub- Copyrigh ofreports to vest in lished in accordance with this act, shall be vested in, and re- the State. main the property of the State. SEC. 12. This act shall take effect and be in force from and after its publication, and it shall be the duty of the Secretary of State, immediately upon its approval by the Governor, to cause the same to be published once in the daily State Record which shall constitute such publication. Approved February 21, 1862. 454 COURTS. [CH. 68. CHAPER LXVIII. (Acts of 1861. Chapter XXII.) AN ACT relating to the organization of Courts of Justice and their powers and duties. Be it enacted by the Legislature of the State of Kansas: SECTION 1. The District Courts shall be courts of record, District courts and, within their respective districts, shall have original jurisshall be courts of record. Shall diction in all civil cases whatever, when the sum or matter in have jurisdiction in all cases dispute exceeds the jurisdiction of Justices of the Peace, and above justices. appellate jurisdiction from the decisions of County Commissioners, Probate Courts, Justices of the Peace and other inferior courts, in the proper county, in all civil cases, subject to the regulations provided by law. They shall have original jurisShall have ju- diction of all crimes and offences except in cases of minor ofrisdiction of all crimes except fences, the exclusive jurisdiction of which is or may be posminor offinces sessed by Justices of the Peace, or that may be vested in courts inferior to the District Courts, and shall have power to issue remedial and all other process. SEC. 2. The said District Courts shall have full power to Shall classify classify and distribute business therein, as may be necessary; and distribute business. to make rules and regulations for practice therein, until otherPowersof the wise provided by law; to appoint receivers; to tax costs; to district courts. enforce the attendance of witnesses, jurors and officers; to punish contempt, in open court or at chambers, by fine, not to ex-'ine not to ex- ceed one hundred dollars, and imprisonment, or either, and to ceed one hundred dollars. assign not exceeding two attorneys to prisoners who may be unable to employ counsel. SEc. 3. The Judges of said District Courts, in and for their Judges exercise respective districts, may exercise all judicial functions allowed all functions allowed under the or required of the District Judges under the statutes of the late Territory. Territory, and, in addition thereto, said Judges may hear and Mayhear mo- decide motions in vacations, to dissolve or modify injunctions tion in vacations and dissolve attachments, and to grant or vacate all necessary interlocutory orders. SEC. 4. The Secretary of State shall immediately, at the exSecretary of pense of the State, procure for each of the several counties, a state shall procure a seal for seal for the District Court, to contain these words: " The Diseach county, each county trict Court, county, Kansas," inserting the name of the county in which said seal is to be used, which said seal shall be in the custody of the clerk of said Court, and with said seal he shall authenticate all of his official acts; provided, that it CH. 68,] COURTS. 455 shall be lawful for the clerks of the several District Courts to Clerk shall uthenticate all use the seal heretofore in use in the District Courts, under the offoia acts by late Territorial government, until the seals herein provided for Old seals may shall be obtained; and, where no such seal has been provided, tnes are ob-'IMay use a priit shall be lawful for the said clerks to use a private seal. vat seal. SEC. 5. All laws of the Territory of Kansas, in force at the Acts under Tertime of the admission of Kansas into the Union, conferring ju- ritorynotinohallmain in force. risdiction, regulating appeals, actions, writs or petitions in error, practice civil and criminal procedure, duties and functions of clerks, jurors, justices of the peace, and pertaining to actions, prosecutions and courts, not inconsistent with this act, shall continue in force until changed by law, and are hereby made applicable to the State of Kansas. SEC. 6. If, from any cause, such as absence, sickness, inter- In case of the inability to sit, est, or having been of counsel in a cause, the Judge of the Dis- ajudge pro tem. trict Court cannot sit in the trial of a cause or causes pending in said Court, a Judge pro tem. shall be elected by the bar for the trial of such causes, which election shall be conducted under the direction of the Judge Lof] said Court, or, in his absence, of the clerk. The same oath shall be administered to such pro Pro tem. judges take the oath tern. Judge as is required by law of the Judge of the District and have the Court, and he shall have the same powers and duties during the same powers. trial of the cause or causes. For the purpose of conducting the election by ballot, herein provided for, the clerk of the Court shall enrol the names of the practicing attorneys at such bar. The parties and attorneys, in any special case where the Judge is interested or otherwise unable to sit in such case, may consent that some attorney may act as Judge, and such attorney, Some attorney may act as judge in such case, shall take the same oath as the Judge, for such in certai asdes. cause, and in it shall have all the powers of the District Judge. SEC. 7. The District Judges may hold terms of Court in any District judges may hold terms, district of the State, at the instance of the Judge thereof, for the when. purpose of which he shall have the power and jurisdiction of such Judge. SEC. 8. This act shall take effect and be in force from and When and how shall take effect. after its publication, and immediately upon its approval by the Governor, the Secretary of State shall publish an authenticated copy of the same, once, in some newspaper printed at the Capital of this State, which shall constitute such publication. Approved April 24th, 1861. I hereby certify that the above bill became a law by publication in the " Topeka State Record," April 25th, 1861. J. W. ROBINSON, Secretary of State. 456 COURTS. [On. 69. CHAPTER LXIX. (Acts of 1861. Chapter XXVII.) AN ACT regulating the terms of the District Court in the several Judicial Districts. Be it enacted by the Legislature of the State of Kansas: SEcTIoN 1. For judicial purposes, the counties of Clay, Dickinson, Saline and Ottawa, shall be attached to the county of Davis; the counties of Washington, Republic and Shirley, to the county of Marshall; the counties of Greenwood, Wilson and Godfrey, to the county of Woodson; the counties of Madison, Butler, Irving and Otoe, to the county of Breckenridge; the county of Marion to the county of Chase; the county of Peketon to the county of Morris. Transcript of SEC. 2. The county of Woodson is hereby detached from the records to be Wotrodsfrnd county of Coffey, and the county of Osage from the county of Osage counties. Shawnee, and the clerks of the District Courts in said counties of Coffey and Shawnee shall make out and deliver to the clerks of the District Courts, for the said counties of Woodson and Osage, respectively, a full and complete transcript of the records of all process and proceedings pending, and of cases tried and determined in the District Courts of said counties, between parties or against defendants resident in said counties of Woodson and Osage, and deliver to the clerks of said counties the same, together with all papers on file in their offices, respectively, belonging to or pertaining to such causes; which transfer shall be indorsed and verified on the court record of said District Courts of the said counties of Coffey and Shawnee by the persons receiving the same; any expenses incurred in such transfer to be paid by the counties receiving such transcript and papers. Upon the receipt of such transcripts and papers, the said clerks of the counties of Woodson and Osage shall file such papers and enter at large such transcripts upon the court records of their counties, respectively, and thereupon such papers and records, and the causes to which they pertain, shall be treated, in all respects, and have the same legal force and effect as if such papers had been originally filed and said cause had been originally commenced in said counties. Terms of the SEC. 3. The terms of the District Court for the first judicial district court, first disteridch. district, for the year A. D. 1861, shall commence as follows: 70-1.] In the county of Wyandott on the first Monday in October, and CH. 69.] COURTS. 457 thereafter annually on the first Monday of March and Septenmber; in the county of Jackson on the third Monday of September, A. D. 1861, and thereafter annually on the third Monday of March and September; in the county of Jefferson on the third Monday in October for the year A. D. 1861, and annually thereafter on the third Monday of May and the first Monday in November; in the county of Leavenworth on the first Monday of November for the year A. D, 1861, and thereafter annually on the first Monday of May, October, December and February. SEc. 4. The terms of the District Court for the second judi- Terms of the district court, cial district for the year A. D. 1861, shall commence as follows: "sod judicial In the county of Atchison on the first Monday in October; in the county of Doniphan on the third Monday in October; in the county of Brown on the first Monday of November;' in the county of Nemaha on the second Monday of November; in the county of Marshall on the third Monday of November, and thereafter the terms of the District Court in said counties shall commence as follows, each and every year:-In the county of Atchison on the fourth Mondays of February, September and December; in the county of Doniphan on the third Monday of March and the second Mondays of September and December; in the county of Brown on the first Monday of April and second Monday of October; in the county of Nemaha on the second Monday of April and the third Monday of October; in the county of Marshall on the third Monday of April and fourth Monday of October; but no jury shall be summoned for the December terms in Doniphan and Atchison counties, unless specially ordered by the Court. The county of Nemaha is hereby detached from the county of Brown, and the papers and records pertaining to the county of Nemaha are hereby transferred from the county of Brown to the county of Nemaha, in accordance with the provisions of the second section of this act. SEC. 5. The terms of the District Court for the third judicial Terms of the district court, district for the year A. D. 1861, shall commence as follows.third judicial In the county of Davis on the first Monday in September: in [Amended, oh. the county of Riley on the second Monday in September; in the county of Potawatomie on the third Mlonday in September; in the county of Wabaunsee on the fourth Monday in September; in the county of Shawnee on the first Monday in October; but, thereafter and until otherwise provided by law, the District Court in said district shall- commence as follows: In the county 458 COURTS. [CO. 69. of Davis on the first Monday in March and September; in the county of Riley on the second Monday in March and September; in the county of Potawatomie on the third Monday in March and September; in the county of Wabaunsee on the fourth Monday in March and September; in the county of Shawnee on the second Monday after the fourth Monday in March and September. The counties of Riley, Wabaunsee and Potawatomie are hereby detached from the county of Davis, and all the records and books pertaining to the counties of Davis, Clay, Dickinson, Riley, Wabaunsee and Potawatomie are to be deposited in the county of Riley, and the papers and records pertaining to the counties of Davis, Dickinson and Clay are hereby transferred from said county of Riley to the county of Davis, and the records and papers pertaining to the counties of Potawatomie and Wabaunsee to the counties of Potawatomie and Wabaunsee, respectively, in accordance with the provisions of section second of this act. Terms of thert, SEC. 6. The terms of the District Court for the fourth judiilstrhditiaL cial district for the year A. D. 1861, shall commence as follows: In the county of Johnson on the first Monday in June; in the county of Douglas on the third Monday in June; in the county of Franklin on the first Monday in September; in the county of Anderson on the second Monday in September; in the county of Allen on the third Monday in September; in the county of Bourbon on the fourth Monday in September; in the county of Linn on the fifth Monday in September; in the county of Lykins on the second Monday in October; and at the June term in Johnson and Douglas counties there shall not be any jury summoned except upon the order of the Judge, for the purpose of the trial of persons charged with crime; and thereafter the terms of the District Court in said counties shall commence as follows: In the county of Johnson on the first Monday in March and September; in the county of Lykins on the second Monday in March and September; in the county of Linn on the third Monday in March and September; in the county of Bourbon on the fourth Monday of March and September; in the county of Allen on the fourth Monday after the first Monday in March and September; in the county of Anderson on the fifth Monday after the first Monday of March and September; in the county of Franklin on the sixth Monday after the first Monday in March and September; in the county of Douglas on the seventh Monday after the first Monday in March and September. CH. 69.] COURTS. 459 SEc. 7. The terms of the District Court for the fifth judicial Terms of the district court, district, shall commence in each year as follows: In the county ifth judicial disof Coffey on the third Monday of February and August; in the [Amended, ch. county of Woodson on the first Monday of September; in the county of Osage on the sixth Monday after the first Monday in March and September; in the county of Breckenridge on the seventh Monday after the first Monday of March and September; in the county of Morris on the eighth Monday after the first Monday in September; in the county of Chase on [the] eighth Monday after the first Monday in March; Provided, There shall be no term held in this district previous to August, 1861. SEC. 8. The Judges of the several District Courts, on the Judges mayhold special terms of written request of two of the county commissioners, shall have court. power to hold such special and adjourned terms in any county in their respective districts as they may deem necessary. The order, calling such special term, shall be issued by the Judge How ordered. to the sheriff of the county wherein such special term shall be held, at least thirty days before the first day of such term; and said sheriff shall immediately publish such order in at least one newspaper published in said county, or, if no newspaper is published in said county, then by posting a copy of the same in a conspicuous place in each township of said county; but there shall not be any jury summoned at any such special or adjourned term, except upon the order of the Judge. SEC. 9. The several terms of the District Court shall be held Court held at county seat. at the county seats of the several counties in which Courts areco established by this act. SEc. 10. When a county is attached to another for judicial Writs, &c.,how directed and purposes, the jurisdiction of the county to which it is attached served when county attached shall be the same as if it formed a part thereof, and where the to another for judicial purpocounty attached has an organization and officers of its own, alles. writs, subpoenas and process of whatever kind, shall be directed to and served by the sheriff or his deputy of said county attached, and all costs of issuing and serving such process, together with all witness fees in criminal cases, arising within such attached county, shall be audited and paid by said county, and the sheriff in such county shall only be allowed mileage from his residence to the place of service of said writs or other process. SEC. 11. This act shall take effect and be in force from and after its publication, and, immediately after its approval by the Governor, the Secretary of State shall publish an authenticated 460 COURTS. [CH. 70-71. copy of the same, twice, in some newspaper published at the capital of this State, which shall constitute such publication. Approved May 20th, 1861. I hereby certify that the above bill became a law by publication in the " Topeka State Record," on the 22d day of May, A. D. 1861. J. W. ROBINSON, Secretary of State. CHAPTER LXX. (Acts of 1862.) AN ACT to amend an act entitled "An Act Regulating the Terms of the District Court in the several Judicial Districts," approved May 20, 1861. Be it enacted by the Legislature of the State of Kansas: [See ch. 69-3.] SECTION 1. That section three of an act entitled "' An Act Regulating the Terms of the District Court in the several Judicial Districts," approved May 20,1861, be amended so as to read as follows: Section 3. The terms of the district court for the first judicial district, for the year 1862 and thereafter, shall Wyandotte. commence as follows: In the county of Wyandotte, on the first Jackson. Monday in April and October; in the county of Jackson, on the third Monday in'April and October; in the county of JefJefferson. ferson, on the fourth Monday in April and October; in the Leavenworth. county of Leavenworth, on the first Monday in March, May and September, and the second Monday in November. [See ch. 69-3.1 SEc. 2. Section 3, of the act of which this act is amendatory, is hereby repealed. SEC. 3. This act shall take effect and be in force from and after its publication, and immediately after its approval by the Governor, the Secretary of State shall publish an authenticated copy of the same, once in some newspaper published at the capital of this State, which, shall constitute such publication. Approved January 31t, 1862. CHAPTER LXXI. (Acts of 1862.) AN ACT to amend an act entitled " An Act Regulating the Terms of the District Courts in the several Judicial Districts," approved May 20, 1861. Be it enacted by the Legislature of the State of Kansas: [See ch. 69-5.] SECTION 1. That section 5 of an act entitled " An Act CH. 72.] COURTS. 461 Regulating the Terms of the District Court in the several Judicial Districts," approved May 20, 1861, be and is hereby amended [Ameded,ch,. to read as follows, to-wit: The terms of the district court for the third judicial district shall commence in each year as follows: In the county of Davis, on the first Monday in March Davi. and September; in the county of Riley, on the second Mon- Riley. day in March and September; in the county of Potawatomie, Potawatomie. on the third Monday in September; in the county of Wabaun- Wabaunsee. see, on the fourth Monday in September; in the county of Shawnee, on the second Monday after the fourth Monday in Shawnee. March and September. The counties of Riley, Wabaunsee and Potawatomie are hereby detached from the county of Davis, and all records and books pertaining to the counties of Davis, Clay, Dickinson, Riley, Wabaunsee and Potawatomie are to be deposited in the county of Riley, and the papers and records pertaining to the counties of Davis, Dickinson and Clay, are hereby transferred from said county of Riley to the county of Davis, and the records and papers pertaining to the counties of Potawatomie and Wabaunsee respectively, in accordance with the provisions of.section 2 of this act. SEC. 2. That the terms of the district court, which by law Terms postpon are to be held in the county of Nemeha on the second Monday ed. of April, 1862, and the one in the county of Marshall, on the third Monday of April, 1862, be and hereby are postponed until the regular fall term for the year 1862, as prescribed by law. SEC. 3. Section 5 of an act entitled "An Act Regulating [see h; 69-s.1 the Terms of the District Court in the several Judicial Districts," approved May 20, A. D. 1861, is hereby repealed. SEC. 4. This act shall take effect and be in force from and after its publication once in the "State Record." Approved February 22, 1862. CHAPTER LXXII. (Acts of 1862.) AN ACT to Change the Terms of the District Court in the Third and Fifth Judicial Districts. Be it enacted by the Legislature of the State of Kansas: SECTION 1.- That the seventh section of an act of the Legislature of the State of Kansas, entitled " An Act Regulating t[ee ch. 69-7.i the Terms of the District Court in the several Judicial Districts," approved May 20, 1861, is hereby amended, so as to 30 462 COURTS. [CH. 72. read as follows: The terms of the district court for the fifth judicial district shall commence in each year as follows: In Coffey. the county of Coffey, on the third Monday of February and Woodson. August; in the county of Woodson, on the first Monday of Osage. September; in the county of Osage, on the sixth AMonday Lyon. after the first Monday in September; in the county of Lyon, on the seventh Monday after the first Monday of March and Morris. September; in the county of Morris, on the eighth Monday (ehase. after the first Monday in September; in the county of Chase, on the eighth Monday after the first Monday in March, and [See ct. 69-7.] the section to which this is an amendment is hereby repealed. [See ch 72-1.] SEC. 2. That section one of an act approved February 22, 1862, entitled " an act to amend an act regulating the Terms of the District Courts in the several judicial districts, approved May 20, 1861," be and is hereby amended so as to read as follows, towit: The terms of the district court for the third judicial district shall commence in each year as follows: In the county,avis. of Davis, on the first Monday in March and September; in Riley. the county of Riley, on the second Monday in March and Potawatomle. September; in the county of Potawatomie, on the third MonWabaunsee. day in September; in the county of Wabaunsee, on the fourth Shawnee. Monday in September; in the county of Shawnee, on the Counties detach third Monday in May and November. The counties of Riley, Wabaunsee and Potawatomie are hereby detached from the county of Davis, and all the records and books pertaining to the counties of Davis, Clay, Dickinson, Riley, Wabaunsee e transferred., tand Potawatomie are to be deposited in the county of Riley, and the papers and records pertaining to the counties of Davis, Dickinson and Clay are hereby transferred from the said county of Riley to the county of Davis, and the records and papers pertaining to the counties of Potawatomie and Wabaunsee to the counties of Potawatomie and Wabaunsee respectively, in accordance with the provisions of section second of said act, entitled "An Act Regulating the Terms of the District Courts in the several Judicial Districts," approved May 20), 1861. SEC. 3. That section one of the act to which this is amendatory be and the same is hereby repealed. SEc. 4. This act shall take effect and be in force from and after its publication once in some paper published at the capi. ital, and the Secretary of State shall cause the same to be published immediately. Approved March 4, 1862. Cir. 73-74.] COURTS 463 CHAPTER LXXIII. (Acts of 1862.) AN ACT providing for the transfer of certain cases from the District Court for the County of Morris, to the District Court for the County of Chase. Be it enacted by the Legislature of the State of Kansas: SECTION 1 All cases now pending in the district court for Cases now pending in district the county of Morris, the causes of action of which arose in the court for Morris county to be county of Chase, or in which the parties thereto or the de- transferred to district court of fendants reside in the county of Chase, are hereby transferred Chase county. from the district court for Morris county to the district court for Chase county. SEc. 2. It shall be the duty of the clerk of the district court Duty of clerk of district court for for Morris county, upon application of parties or defendants Morris county. to cases hereinbefore transferred, verified by affidavit that the cause of action arose in Chase county, or the parties or defendants reside therein, to make out and send, or cause to be sent to the clerk of the district court for Chase county, a certified transcript of -the proceedings in such case or cases, together with the original papers in the same, which said transcript and papers shall be filed by the clerk of the district Duty of clerk of district court of court for the county of Chase, the expenses of such transfer Chase county. to be taxed and collected as costs in the case. SEC. 3. This act shall take effect and be in force from and after its publication once in the Topeka Daily State Record. Approved February 5, 1862. CHAPTER LXXIV. (Acts of 1861, Chapter XXIV.) AN'ACT defining the duties and prescribing the qualifications of the Clerks of the District Courts. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That each clerk of the district court, who was elected on the first Tuesday in December, 1859, or who has since been elected or appointed to fill a vacancy, or who shall hereafter be.elected or appointed, shall, before'entering upon the performance of the duties of his said office, take and sub- Shall take oath. scribe an oath or affirmation, in writing, before some person by eof obo,and B. ecuto bond. 464 COUiRTs, [C. 74. law authorized to administar oaths, that he will support the Constitution of the United States, and the Constitution of' the State of Kansas, and faithfully discharge the duties of his said office; and shall,, also, execute a bond to the State of Kansas, with two or more sufficient sureties, to be approved by the county commissioners, or chairman and clerk thereofe, Amountiof in the penal sum of not less than ten nor more than sixty thousand dollars, conditioned that he will truly and faithfully Shall pay over pay over to the proper person or persons,' all moneys which all moneys. may be by him received in his official capacity, and faithfully fBond filed with discharge the duties of lis said office, which said bond and county clerk, oath of office shall be filed with the county clerk. Duties of dis. SEC, 2. That the clerks of the district courts shall do and triet clerks. perform all duties that may be required of them by law, or the rules and practice of the courts, and shall safely keep and preserve all papers, process, pleadings and awards that may be filed, or by law placed in their respective offices. Power to ap- SEc. 3. Each of said clerks may appoint one or more deppoint a clerk. uties in his proper county, and the appointment of every such deputy shall be evidenced by a certificate thereof, in writing, under the hand of such clerk and the seal of the court, to be entered on the records thereof, and shall continne during the pleasure of the clerk; and every such clerk may take fronm his deputy or deputies such a bond as he may deem necessary Shall be respon- to secure the faithful discharge of his or their duties; and said sible for the ac. tions of his dep. clerk shall be liable, on his bond, for any default, neglect or misconduct of his deputies. Deputy shall SEC. 4. Every such deputy clerk shall, before entering upon take the oath. the duties of his office, take the oath of office hereinbefore provided. District clerks SEC. 5. The clerks of the district courts shall have authormay administer othhs or affirma- ity to administer oaths and affirmations in all cases in which an oath or affirmation may be required, and may take acknowledgments of deeds, mortgages, and other instruments of writing, in this State. Office to be kept SEC. 6. Said clerks shall keep their offices at the seat of at the seat of fJ~AW~i justice of their respective counties, and in case a vacancy shall occur in: the office of clerk in any county, by death, or resignation, or otherwise, the judge of the proper district court shall, and he is hereby authorized and required to appoint a clerk Mayappoint a pro tempore, who shall hold his office until the next general kprote. election thereafter, and until his successor in office shall be Cai. 75.] COURrTS. 465 elected and qualified, and he shall take the oath and execute the bond in this act provided for. SEC. 7. All acts and parts of acts, inconsistent with theActs inconsisprovisions of this act, are hereby iepealed. repealed. SEC. 8. This act shall take effect and be in force from and When to take effect. after its publication once in some newspaper printed at the capitoL I hereby certify that the above bill became a law, by publication in the " Topeka State Record," May 8, 1861. J. W.. ROBINSON, Secretary of State. CHAPTER LXXV. (Acts of 1861, Chapter XXV.) AN ACT to establish and define the Jurisdiction of the Probate Court. Be it enacted by the Legislature of the State of Kansas SECTION 1. The probate courts shall be courts of record, Jurisdiction of probate courts. and, within their respective counties, shall have original jurisdiction in all matters relating to the probate of last wills and testaments, the granting of letters testamentary and of administration, and the proceedings authorized by law under such letters; in all matters arising tnder the laws relating to executors and administrators, and the laws relating to descents.and distributions; in-all matters relating to the appointment of guardians for mino ts, persons of'unsound mind, and habitual drunkards; and in all matters arisiIlg under the laws relating to the estates of minors, persons of unsound mind, and habitual drunkards; in all matters arising under the laws in reference to dower, and the relationship of master and apprentice; and such other probate jurisdiction as is or may be conferred upon Probatejudges them by law; and they shall have concurrent jurisdiction with ocren juCi the supreme and district courts, in cases of habeas corpus. Swc. 2. Each probate judge shall, before entering upon theBefore entering duties of his office, or before the first day of J-uly, A. D. 1861 bate judge shall give bonds. execute to the State of Kansas a bond, in the penal sum of three thousand dollars, with two or nmore sufficient securities, to be approved by the county treasurer, conditioned for the faithful performance of the duties of his office, and for the faithful application and payment of all moneys and effects that may come into hi. hands in the execution of the duties 466 COSTS. [Ci. 76: snhall subscribe of his office; and shall take and subscribe an oath to support an oath. the Constitution of the United States, and the Constitution of the State of Kansas, and faithfully to discharge the duties of his office, which oath shall be indorsed on his bond; and the said bond and oath shall be filed in the office of the county clerk. Judges shall be SEC. 3. Each probate judge shall be his own clerk, and their own clerks Records open to shall keep a record of all his official acts, which record shall inspeotion. be open to the inspect:ion of all persons, without charge. Probate courts SEC. 4. Each probate court shall have a seal, with which shall have a seal. all process issuing therefrom shall be authenticated; which seal shall be provided by the board of county commissionersc and shall contain the following words, viz:'Probate courtcounty;"' naming the county for which such seal is provided. Shall hold four SEC. 5. Each probate court shall hold regular terms on the terms a year. first Mondays of January, April, July, and October, in each year; and the judge thereof shall have power to call as many special terms as the business thereof may require. Fees allowed by SEC. 6. The probate judges shall receive for their services law. such fees as are or may be allowed them by law. Inconsistent SEC. 7. All acts and parts of acts inconsistent with this act acts are repealed are hereby repealed. When and how SEc. 8. This act shall take effect and be in force from and' to take effect. after its publication; and it shall be the duty of the Secretary of State, immediately on its approval by the Governor, to cause the same to be printed at least once in some newspaper printed at the city of Topeka, which shall constitute such publication. Approved June 3, 1861. I hereby certify that the above bill became a law by publication in the "'State Record," June 8, 1861. J. W. ROBINSON, Secretary of State. CHAPTER LXXVI. (Acts of 1862.) AN ACT relating to Costs, where the State of Kansas, or any County in said State, is?Plaintiff. Be it enacted by the Legislature of the State of Kanscas No security for SECTION 1. That in all cases where the State of Kansas, or costs required any county in the State, is plaintiff, no undertaking or security Cu. 77-78.] DAMAGES-DEEDS. 467 for costs shall be required, any law to the contrary notwith-wheontati oplrai. standing. tiff. SEC. 2, This act shall be in force from and after its publication once in the'"Topeka Record." Approved March 5, 1862. CHAPTER LXXVII. (Acts of 1858, Chapter XXV.) AN ACT providing for the collection of Damages in certain cases. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That all incorporated cities and towns shall be held responsible for all damages that shall accrue in conse- Citiestobere quence of the action of mobs within their incorporated limits, tpon~ ofmobs. whether such damages shall be loss of property, or injury to life or limb. SEC. 2. That actions for damnages, under the provisions of this act, may be brought before any court of competent juris- Actions to be diction, by any person aggrieved, in such manner as other bnygourtb hfav actions of similar character before said courts. ing jurisdiction. SEC. 3. This act to take effect and be in force from and after its passage. Approved February 9, 1858. CHAPTER LXXVIII. (Acts of 1862.) AN ACT authorizing the transcribing of Deeds and other instruments of writing for Dickinson County. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the register of deeds of Dickinson county, be and is hereby authorized to make out a transcript from the records of Davis and Riley counties, of all deeds, mortgages, degster of deeds of trust, bonds, and other writings in relation to real estate, or any interest therein, being within the limits of Dick- Transcript of deeds, &c., from inson county; and the said register of deeds is hereby author- records of Davis ized to procure suitable books for the purpose, and he shall be ties. entitled to compensation for said service, from the county of Dickinson, at the rate of ten cents per folio for such transcript. 468 DEEDS-DESCENTS AND DISTRIBUTION. [CE. 79-80. SEC. 2. This act shall take effect from and after its publication once in the "Smoky Hill and Republican Union," and immediately after its approval by the Governor, the Secretary of State shall forward a certified copy to said paper for publication. Approved March 5, 1862. CHAPTER LXXIX. (Acts of 1862.) AN ACT relating to Tax Deeds in the City of Lawrence. Be it enacted by the Legislature of the State of Kansas: treasurer of the SECTION 1. It is hereby made the duty of the treasurer of city of Lawrence the city of Lawrence, upon the presentation to him, by the purchaser or his assigns, of the tax certificates of the purchase of lots sold for the city taxes, for the years A. D. 1858 and 1859, to execute to the said purchaser, or his assigns, a deed therefor, in the name of the city, by him, as city treasurer, for the lots mentioned in said certificate. The deed shall be signed by him, sealed with the seal of the city, and acknowledged by him before some officer authorized to take acknowl. edgments of deeds. SEC. 2. When so executed, the deed shall be entitled to record, and shall be of the same validity as if it had been executed under the provisions of section nineteen, of ordinance twenty-nine, of said city of Lawrence. compensation. SEC. 3. Upon the execution and before delivery of each deed, the treasurer shall be entitled to receive the sum of two dollars therefor. SEC. 4. This act shall be in force from and after its passage. Approved March 6, 1862. CHAPTER LXXX. (Acts of 1859, Chapter LXIII.) AN ACT concerning Descents and Distribution. Be it enacted by the Governor and legislative Assembly of the Territory of Kansas: [.r1b41-tion SECTION 1. The personal property of the deceased, not Ch. 141-1.necessary for the payment of debts, nor otherwise disposed 2C8 —2.] necessary for the payment of debts, nor otherwise disposed Ca. 80.] DESCENT AND DISTRIBUTION. 469 of according to law, shall be distributed to the same persons, and in the same proportions, as though it was real estate, SEC. 2. The distributive shares shall be paid over as fast as Payment. the executor can properly do so. SEC. 3. The property itself shall be distributed in kind nkinTd. whenever that can be done satisfactorily and equitably. In other cases, the court may direct the property to be sold, and the proceeds to be distributed. SEC. 4. When the circumstances of the family require it, Partialdistribothe court, in addition to what is set apart for their use, may direct a partial distribution of the money or effects on hand, at any time after filing the inventory, upon the execution of security, like that required of legatees in like cases. The Disposition of Real Property. SEC. 5. One-half in value of all the real estate, in which Portion. the husband, at any time during the marriage, had a legal or 83.] equitable interest, which has not been sold on execution or other judicial sale, or to which the wife has made no relinquishment of her rights, or which may not be necessary for the payment of the debts of the deceased husband, shall, under the direction of the court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him. IContinuous co-habitation as husband and wife, is presumptive evidence of marriage, for the purpose of giving the right aforesaid. SEC. 6. Such share shall be so set off as to include the Includes homestead. ordinary dwelling-house, and the land given by law to the husband as a homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement. But no different arrangement shall be permitted where it would have the effect of prejudicing the rights of creditors. SEC. 7. The share thus allotted to her may be set off by the no set off. mutual consent of all the parties interested, when such consent can be obtained, or it may be set off by referees appointed by the court. SEC. 8. The application for such admeasurement by referees Application. may be made at any time after twenty days, and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims her portion, and ask the appointment of referees. 470 DESCENT AND DISTRIBUTION. [C1. 80. Notice. SEC. 9. The court shall fix the time for making the appointment, and direct such notice thereof to be given to all the parties interested therein as it deems proper. Action of ref- SEC. 10. The referees may employ a surveyor, if necessary, and they must cause the widow's share to be marked off by metes and bounds, and make a full report of their proceedings to the court as early as practicable. Same. SEC. 11. The court may require a report by such a time as it deems reasonable, and if the referees fail to obey this or any other order of the court, it may discharge them, and appoint others in their stead, and may impose on them the payment of all costs previously made, unless they show good cause to the contrary. Confirmation. SEC. 1[2. The court may confirm the report of the referees, or it may set it aside, and refer the matter to the same or other referees, at its discretion. Same. SEC. 13. Such confirmation, after the lapse of thirty days, unless appealed from according to law, shall be binding and conclusive as to the admeasurement, and she may bring suit' to obtain possession of the land thus set apart for her. Her right con- SEC. 14. Nothing in the last section shall prevent any tested. person interested from controverting the general rights of the widow to the portion thus admeasnred. Portion and will SEC. 15. The widow's portion can not be affected by any will of her husband, if she objects thereto, and relinquishes all rights conferred upon her by the will. Descent. SEC. 16. Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized, shall, in the absence of other arrangements by will, descend in equal shares to his children. Representation. SEC. 17. If any one of his children be dead, the heirs of such child shall inherit his share, in accordance with the rules herein prescribed, in the same manner as though such child had outlived his parent. If no issue. SEC. 18. If the intestate leaves no issue, the whole of his estate shall go to his wife, and if he leaves no wife nor issue, the whole shall go to his father. Representation. SEC. 19. If his father be previously dead, the portion which would have fallen to his share by the above rules, shall be disposed of in the same manner as though he had outlived the intestate and died in the possession and ownership of the portion thus falling to his share, and so on through each ascending ancestor and his issue, unless heirs are sooner found. CH. 80,] DESCENT AND DISTRIBUTION. 471 SEC. 20. If heirs are not found in the male line, the portion Female line. thus uninherited shall go to the mother of the intestate and to her heirs, following the same rules as above prescribed. SEC. 21. If heirs are not thus found, the portion uninherited WVhen wife to inherit. shall go to the wife of the intestate or to her heirs, if dead, according to like rules; and, if he has had more than one wife, who either died or survived in lawful wedlock, it shall be equally divided, between the one who is living and the heirs of those who are dead, or between the heirs of all, if all are dead, such heirs taking by right of representation. SEC. 22. If, still, there be property remaining uninherited, it Escheat. shall escheat to the Territory. SEC. 23. Illegitimate children inherit from. the mother, andIllegitimate the mother from the children. SEC. 24. They also inherit from the father whenever theysame. have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing. SEC. 25. Under such circumstances, if the recognition of re- Same. lationship has been mutual, the father may inherit from his illegitimate child. SEC. 26. But in thus inheriting from an illegitimate child,Ruleinsuch the rule above established must be inverted so that the mothers. and her heirs take preference of the father and his heirs, the father having the same right of inheritance in regard to an illegitimate child that the mother has in regard to one that is legitimate. SEC. 27. Property given by an intestate, by way of advance- Advanceme~nt. ment to an heir, shall be considered part of the estate, so far as regards the division and distribution thereof, and shall be taken by such heir towards his share of the estate, at what it would now be worth if in the condition in which it was so given to him. SEC. 28. But, if such advancement exceeds the amount to Same. which he would be entitled, he cannot be required to refund any portion thereof. SEC. 29. All the provisions hereinbefore made, in relation to usband to havo the widow of a deceased husband, shall be applicable to ther husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estate of dower and by courtesy are hereby abolished. SEC. 30. Children of the half-blood shall inherit equally with 472 DIVORCE AND ALIMONY. [Cn. 81. children of the whole blood. Children of a deceased parent inherit in equal proportions the portion their father or mother would have inherited, if living. SEC. 31. This act to take effect and be in force from and after the first day of June next. Approved February 8, 185:9. CHAPTER LXXXI. (Acts of 1860, Chapter LXII.) AN ACT concerning Divorce and Alimony. Be it enacted by the Governor and Legislative Assembly of the Territory qf KLansas. District courts SECTION 1. That the several district courts in this Territory may grant diorces for what shall have cognizance of granting divorces, for the following causes. [Amended, oh. causes: First, Where either of the parties had a former wife or husband living, at the time of solemnizing the second marriage. Second, Where either of the parties shall have been willfully absent from the other one year. Third, Adultery. Fourth, Impotency; also, where the wife, at the time of marriage, was pregnant by another than her husband. Fifth, Extreme cruelty. Sixth, Fraudulent contract. Seventh, Gross neglect of duty. Eighth, Habitual drunkenness. Ninth, Where either party has been or shall hereafter be sentenced to imprisonment and actually imprisoned in the penitentiary of this Territory, or State prison of any State or Territory of the United States or the District of Columbia, for any violation of the laws of the United States; or where either party has been or shall hereafter be sentenced to imprisonment and actually imprisoned in the penitentiary in this Territory, for any violation of the criminal laws of this Territory, or in the peniten-' tiary or State prison of any of the United States, or either of the Territories thereof, or the District of Columbia, for any crime or offence against the laws of either of said States or Proviso. Territories or of the District of Columbia; Provided, Such crime or offence against the laws of such State, Territory, or District of Columbia be of the same character or grade as is or may be, by the laws of this Territory, punished by imprisonment in the penitentiary; and provided, also, that all applications for divorce under the ninth clause of this section shall be made during the imprisonment of the adverse party. CH. 81.] DIVORCE AND ALIMONY. 473 SEC. 2. That, in addition to the causes of divorce already Additional declared in this act, the several district courts of this Territory shall have power to grant a divorce in favor of a party applying for the same, whenever it shall be made to appear that the husband or wife of such party has obtained a decree of divorce in any of the courts of any other Territory or State, by virtue of which the party who shall have obtained such decree shall have been released from the obligation of the marriage contract, while the same remains binding upon the other party. SEC. 3. That, in all cases where a divorce shall be applied Applicant shall for, the complainant shall file his or her petition in the office o0fwhen, and its contents. the clerk of the court of the proper county, at least two months before the sitting of said court, which petition shall, in all cases, distinctly set forth the true cause of complaint; and, if the adverse party is a resident of the county in which the petition is filed, the clerk of said court shall issue a summons, directed to clerk to issue notice to adverse the sheriff of the county, which shall be served on the adverse party. party, at least six weeks before the sitting of said court; but, if the party defendant is not a resident of the county in which the petition shall be filed, then notice shall be given of the pendency of said petition, by publication, in some newspaper of general circulation, for the term of six consecutive weeks, which notice shall contain the substance and prayer of said petition; and, in such case, a summons and a copy of the petition shall forthwith, on the filing of said petition, be deposited in the post office, directed to the party defendant, at his or her place of residence, unless it shall be made to appear, to the satisfaction of said court, by affidavit or otherwise, that such residence is neither known to said applicant, nor can, with reasonable diligence, be ascertained by him or her; or, if the adverse party shall reside in any other county in this Territory, the applicant may, at his or her election, give notice, by service of a summons and a copy of the petition, which service shall be made at least six weeks before the sitting of said court; Provided, That Proviso. nothing in this act shall be so construed as to prevent a hearing or decision of the cause at the first term after the petition shall be filed. SEC. 4. The party, by such summons, shall be required to Adverseparty to ear and anappear and answer said petition, which answer shall be received swer petition. without oath; and, if the party complained of shall not appear, In case said par. or, appearing, shall admit or deny the allegations in said peti- pydoes not aption, the court shall thereupon proceed to hear and determine 474 DIVORCE AND ALIMONY. [CH. 81. the same; and if, upon hearing any or all of the charges in said petition (to be confined to the causes enumerated in the first section of this act,) it shall, by disinterested testimony, be, proved to the satisfaction of said court, the court may proceed to pronounce the marriage contract dissolved, and both of the Proviso. parties released from the obligations of the same; Priovided, That the dissolution of such marriage shall in no wise affect the legitimacy of the children thereof; and the court shall make such order for the disposition, care and maintenance of the children of such marriage, if any there be, as shall be just and reasonable. Evidence re- SEC. 5. That, upon the hearing of the petitions for divorce, ceived. the court may permit proofs of the admissions of the parties to be received in evidence, carefully excluding such as they shall find reason to believe have been obtained by connivance, fraud, coercion or other improper means. Cohabitation SEC. 6. That, in all cases where an application is made for of marriage may divorce, under the provisions of this act, proof of cohabitation be receivede a evidence ofmar- and reputation of the marriage of the parties shall be admitted, and, at the discretion of the court or jury trying the cause, may be received as sufficient evidence of such marriage, any law, usage, or custom to the contrary notwithstanding. Where divorce SEC. 7. That, where a divorce shall be granted by reason of granted by reason of aggres- the aggression of the husband, the wife shall be restored to all sion of husband, wife shall be re- her lands, tenements and hereditaments, not previously disposed stored to what. of, and to her maiden name, if she so desires, and shall be allowed such alimony, out of her husband's real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate, at the time of said divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court may deem just and equitable; and, if the wife survive her husband, shall, also, be entitled to her right of dower in the real estate of her husband, not allowed her as alimony, of which he was seized at any time during the coverture, and to which she had not relinquished her right of dower; but, if the divorce shall arise by reason of If by reason of the aggression of the wife, she shall be barred of all right of aggression of wife. dower in the lands of which her husband shall be seized at the time of the filing of the petition for divorce, or which he may thereafter acquire, whether there be issue or not; and the court CH. 81.] DIVORCE AND'ALIMONY. 475 shall order to her restoration of the whole of her lands, tenements or hereditaments, not previously disposed of, and, also, such share of her husband's real or personal property, or both, as to such court may appear just and reasonable. SEC, 8. That all applications for divorce or for'alimony un- Applications made in county der the provisions of this act, shall be made in the county where complainanlt resides. where the complainant bonafide resides at the time of making such application, or in the county where the cause of complaint arose or took place; and the court shall hear and determine the same, whether the marriage took place or the cause of divorce occurred within the Territory or elsewhere; Provided, Proviso. The petitioner shall be a resident of the Territory at least one year next before the filing of his or her petition in the clerk's office of said court. SEc. 9, That the said court shall have the power to grant Court may grant alimony to -wife alimony to the wife for her sustenance, during the pendency while petition of a petition for divorce filed for any of the causes aforesaid. SEc. 10. That the wife may file her petition, as aforesaid, in Wife may petition for alimothe District Court, for alimony alone, without the prayer for nYhacno foe the dissolution of the marriage contract, for the following causes, to-wit: First, Adultery. Second, Gross neglect of duty. Third, Abandonment of the wife, without good cause. Fourth, When there is a separation in consequence of ill treatment on the part of a husband. Fifth, Habitual drunkenness; and, Sixth, Confinement in the penitentiary of Kansas, or in the penitentiary or State prison of any of the United States, or either of the Territories thereof, or the District of Columbia, for any crime or offence of the same character or grade as is or may be, by the laws of this Territory, punished with imprisonment in the penitentiary, in which case the application shall be made while the husband is so confined. SEc. 11. The proceedings on said petition for alimony alone Proceedings same as for dishall, in all respects, be conducted as in application for di-Yvrce. vorce, under the provisions of this act; and the said court Court may make oforder for care of shall, upon satisfactory proof of any or all the charges in said hildr, tiomatoke petition, make such order for the disposition, care and main- wife of property, and give alimotenance of the children of such marriage, if any there be, as nY. shall be just and reasonable, and restore to the wife all her lands, tenements and hereditaments not previously disposed of, and shall give judgment in her favor for such alimony, out of her husband's real and personal property, as may be just and equitable, to be allowed to her in real or personal prop 476 DIVORCE AND ALIMONY. [CH. 81. Shall vest into her erty, or both, or in moneys, payable either in gross or in inthe power to a.c- l, quire and hold stallments; and the court shall, also, by their said judgment, property. vest in her the right and power to acquire, hold, and manage and dispose of property, money and choses in action, and to bring and maintain suits in her own behalf, free from the conOrini trustees. trol or interference of her said husband; or the same may be vested in trustees for her use or benefit. Residenceoof SEC. 12. That, when the wife shall file her petition, under husband shall not preclude iherthe provisions of this act, praying for a divorce from her husfrom benefits of.his act. band, or for alimony alone, the residence of her husband shall not be so construed as to preclude her from the provisions of this act. Change of venue SEC. 13. A change of venue shall be allowed, by any court when. in which any petition for divorce or alimony may be filed, for the hearing and determination of the same, upon the petitioner making application therefor, and making an affidavit that in his or her behalf a fair and impartial hearing and determination cannot be had before the court in which the petition is filed; and, in case of such change of venue, the cause shall be removed to any county of the same judicial district, for hearing and determination. tWifeinmay iePe- SEC. 14. That any married woman may file her petition, in husband friom the District Court, settigo forth that her hnsband, from habitImproperly dis- ort, selin posing of prop-ual intemperance or any other cause, is about to waste and squander the property, (legal or equitable,) money, credits and choses in action to which she is entitled by her own right, or any part thereof, or is proceeding fraudulently to convert the same or any part thereof to his own use, for the purpose of placing the same beyond her reach and depriving her of the benefit thereof; and the court, upon the hearing of the case, may enjoin the husband from disposing of or otherwise interfering with such property, moneys, credits and choses in action, and may appoint a receiver to manage and control the same, for the benefit of the wife, and may, also, make such other order in the premises as they may deem just and proper; and, upon the filing of such petition, a provisional injunction may be allowed as in other cases; and such petition shall be filed in the county where said petitioner resides; and the u band madeo husband of said petitioner shall be made a party defendant to defendant. said petition, in the same manner as is provided for by the second section of this act, in the case of a petition for divorce. SEC. 15. In all application for divorce or alimony alone, and Ca. 82.] DIVORCE AND ALIMONY. 477 in cases where the petition is filed under the eleventh section Resident witnesses examined of this act, where the witness shall reside in the county in in open court; non-residents by which the application is made or the petition filed, they shall depoition. be examined in open court; but, if they shall reside without the county or are unable to attend court, their depositions may be taken as in other cases; but when the adverse party shall If adverse party non resident, no. not reside within the county where the application or petition tice,how given is pending, or in an adjoining county, or shall not have an attorney residing in the county where such application or petition is pending, or in an adjoining county, the usual notice of the time and place of taking such deposition shall not be required; but in such caset notice of the time and place of taking such depositions shall be given by publication in some newspaper circulating in the county where the case is pending, for three consecutive weeks before the time of taking such depositions; and a copy of such notice shall, at or before the first publication thereof, be deposited in the post-office, properly directed to the party defendant, at his or her place of residence, when such residence is known to the petitioner, or can, with reasonable diligence, be ascertained by him or her. SEC. 16. That, in case of petition for divorce or petition for alimony alone, no appeal shall be allowed from any judgment or order of the District Court. SEC. 17. That "An act Concerning Divorce and Alimony," approved February 7, 1859, be and the same is hereby repealed. Approved February 27, 1860. CHAPTER LXXXII. (Acts of 1861, Chapter XXIX.) AN ACT supplementary to "An Act concerning Divorce and Alimony," approved February 17, 1860. Be it enacted by the Legislature of the State of Kansas SEcTION 1. That, in addition to the causes of divorce, setAdditionatcauso forth in an act entitled "An Act concerning Divorce and Ali- [so divch. s-.l mony," approved February 17, 1860, upon proof of which should entitle such party to a decree of divorce, that when a What ma, entitle parties to diparty has been divorced by an act of the Legislature of theotle:.t Territory of Kansas, such party, on providing a certified copy of such act, or the: printed copy thereof among the laws: of 31 478 DOWER. [CH. 83. the Territory of Kansas, said party shall be entitled to a decree of divorce without issuing summons thereon, either in term time or in vacation. When to take SEC. 2. This act shall take effect and be in force from and effect. after its publication. Approved June 4, 1861. CHAPTER LXXXIII. (Acts of 1859, Chapter LXIII.) AN ACT relating to Dower. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Widow endowed SECTION 1. Every widow shall be endowed of tile third part of third part of estate. of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished Dower in lease. her right of dower in the manner prescribed by law, to hold hold estate, how granted. and enjoy during her natural life. Dower in leasehold estates, for a term of twenty years or more, shall be granted and assigned as in real estate; for a [less] term than twenty years, shall be granted and assigned as in personal property. Widow may, SEC. 2. Every widow, within six months from the date of within six months from the death of her husband, may, as she may prefer, use for her husband's death, be entitled to benefit either the provisions of this act or those of an act enthe benefits of this and other titled "An Act concerning Descents and Distributions," apacts. [Ch. 80, ch. 144, proved February 8, 1859, or an act entitled "An Act to proch. 214-1, ch, ~141 —i1.] tect the rights of married women and in relation to the liabilities incident to the married contract relation," approved February 7, 1859. When children SEC. 3. When the husband shall die, leaving a child or survive, widow entitled to share children or other descendants, the widow shall be entitled, abin personal estate equal to solutely, to a share in the personal estate belonging to the child. husband at the time of his death, equal to the share of a child of such deceased husband, or, at her option, to one-third part; of the personal estate, absolutely. When husband SEC. 4. When the husband shall die without any child or leaves no inheritors, widow other descendants in being, capable of inheriting, his widow entitled to what. shall be entitled: First, To all the real and personal estate which came to the husband in right of the marriage, remaining undisposed of, absolutely. Second, To one-half of the real Ce. 83j] BOWER. 479 and personal estate belonging to the husband at the time of his death, absolutely. SEC. 5. When the husband shall die, leaving such child orWhlen cildren' by fortner maidescendants, but not by his last marriage, his widow may, in riage left. lieu of dower, elect to take, in addition to her real estate, the personal property in possession of the husband, that came to him in right of the wife by means of the marriage. SEC. 6. When the husband shall die without a child, or When husband die wihout other descendant living, capable of inheriting, the widow hild or descendshall have her election to take her dower as provided in the choose what. first section, discharged of debts, or the provisions of the fourth section, subject to debts. SEc. 7. Such election shall be made by declaration, in writ- Wife shall declare choice ing, acknowledged before some officer authorized to take ac- within six months. knowledgment of deeds, and filed in the office of the clerk of the court in which letters testamentary or of administration shall have been granted, within six months after the grant of the same; otherwise, she shall be endowed under the provisions of the first section of this act, SEC. 8. No act, deed or conveyance, executed or performed No act or conveyance of husby the husband, without the assent of the wife, evidenced by baud without consent of wife her acknowledgment thereof, in the manner required by law, shlall prejudice to pass the estate of married woman, and no judgment or de- this act. cree, confessed by, or -recovered against him, and no laches default, covin or crime of the husband, shall prejudice the right and interest of the wife provided in the foregoing section of this act. SEC. 9. If any woman be divorsed from her husband, for the Ifwoman divorced for fault fault or misconduct of such husband, she shall not thereby loose of husband. her dower; but, if the husband be divorsed from the wife for her fault or misconduct, she shall not be endowed. Sed Si. SEC. 10. If any testator shall, by will, pass any real estate Ifreal estate to his wife, such devise shall be in lieu of dower, out of the real estate of her husband whereof he died seized, unless the testator, by his will, otherwise declare. SEC. 11. In such case, the wife shall not be endowed in any I such case shall -not be enof the real estate whereof her husband died seized, unless she dowaed in real estate unless she shall, by writing, duly executed and acknowledged, as in case of cceipts provis-w deeds for land, and filed in the office of the court in which the in twelve months. will is proven and recorded, within twelve months after the proof of the will, not accept the provisions made for her by said will. 480 DOWER. [Cu. 83. If woman prior SEC. 12. If any woman, prior to or in contemplation of marto marriage shtall reeive fullriage, shall, on agreement or marriage contract with her intended to dower, husband or other person, receive any estate, either real or personal, to take effect after the death of her husband, by way of jointure, as a provision for her support during life, and expressed to be in full discharge of all her claim of dower, such estate shall be valid and a bar to dower in the estate of her husband. When any lands When any lands have been or hereafter shall be conveyed to the have been OF shall be convey- husband and wife, or to any other person and their heirs, and ed to husband or wife, or tothe tO the use of the husband and wife, or to the use of the wife, of the for the jointure of the wife, every such married woman, having such jointure made, shall not claim any dower in the residue of the lands of which her husband was at any [time] seized. If deed or con- SEc. 13. If any deed of conveyance, assurance, agreement or tract be made ofter marriage, contract for jointure be made after marriage, or be made before or during infanCy of wife. marriage and during the infancy of the wife, in either case, the widow may, at her election, renounce her jointure and have If title to estate dower. In all cases, if the title to the estate settled on the settled on wife shall fail. wife as her jointure shall fail, or she be evicted from or cannot recover such estate, she shall have dower in the estate of her husband; or, if the title fail as to part 0nly, the deficiency shall be made up of her husband's estate. When deed or SEC. 14. When any deed, conveyance, assurance, agreement contract in lieu of dowershall or contract for jointure in lieu of d6wer shall, through anyfail to be legal. default, fail to be a legal bar to dower, and the widow, availing herself of such default, shall demand her dower, then the estate and the interest so conveyed to such widow shall cease and determine. Ifwifeleave SEC. 15. If a wife voluntarily leave her husband and go continue with away and continue with an adulterer; or, after being ravished, adulterer. consent to the ravisher, she shall be forever barred from having her jointure or dower, unless her husband be voluntarily reconciled to her and suffer her to dwell with him. Until dower be SEC. 16. Until dower be assigned, the widow may remain in assigned, widow may remain in and enjoy the mansion house of her husband, and the messuages mansion, &c. or plantation or plantations thereto belonging, without being liable to pay any rent for the same. When widow en- SEC. 17. When any widow shall be entitled to dower in real titled to dower and cannot get estate and she be deforced thereof, or cannot have it without it without suit. suit, or,;if her dower be unfairly assigned or not assigned within twelve months after the death of her husband, she may sue for and recover the same with damages; that is to say, the value Ca. 83.] DOWER. 481 of the whole dower to her belonging, from the time of her husband's death, (if he died or shall die seized,) or from the time of demanding dower, (if the husband was or shall be seized, but did not or shall not die seized,) unto the day that she shall recover her dower. SEC. 18. Any widow may file a petition in the office of the Any widow may file petition clerk of the district or probate court of the county wherein the again;t p.ron, real estate, in which she claims her dower, is situate; or, if the est. land is divided by county line, then in either county, against any person claiming an interest in such lands! or being in possession thereof, or who shall deforce her of her dower therein; and the clerk shall thereupon issue a. summons, indorsed or annexed to such petition, which shall be served as process in actions at law; and, if the defendant appear and plead, the If defendant apcause shall proceed according to the course of proceedings at law; if any defendant shall not be summoned or shall not If he doesnct appear, the court shall award an order of publication, which aPear. shall notify such defendant that, unless he appear on the first day of the next succeeding term and proceed to trial, judgment will be rendered against him by default, which order shall be published in some newspaper, printed in this Territory, for two months before the term at which he shall be notified to appear; and, when so published, shall be equivalent to the service of a summonls. SEC. 19. Where there are several defendants, some of whom Where there are several defendare summoned to appear and others do not, the demandant may ants, only part of whom appear. proceed against those summoned or appearing, without regard to the others, or may continue the cause and take out alias writs or make publication as aforesaid to bring in the other parties. Any person claiming title to the land whereof dower Any person claiming title is claimed, may be made a defendant if he appear and apply for may appear as defendant on the purpose; and proceedings shall be had thereon, in all application. respects, as if he were originally a party duly summoned. SEC. 20. If judgment be rendered by default, nil dicit non Ifjldgmentbe rendered by desum ienformatus, the court shall hear the proof and allegations fault. of the demandant, or impannel a [jury] for that purpose; and, if it be found, upon such proceedings or on the trial of the issues that the demandant is entitled to dower, the court or jury shall determine in what proportion, and the court shall thereupon render judgment that she be seized of her dower accordingly, for and durimg her natural life, and that she recover the damages that may be assessed, and thereupon shall appoint three 482 DOWER. [CH. 83S competent persons, as commissioners, to assign and admeasure such dower, who, before they enter upon the discharge of their duties, shall take an oath or affirmation honestly and impartially to execute the trust reposed in them [respectfulIy] respectively. A majority of SEC. 21. The commissioners, or a majority of them, shall commissioners shall ascertain proceed to the land or other real estate, and, by actual admeasand set off wid- ow's dower; urement, ascertain and set off the widow's dower therein, according to the judgment of the court. County surveyor'SEc. 22. The county surveyor of the county, if thereto to assist commissionlers. required by the commissioners, shall make such survey and plats as the commissioners shall direct, and the commissioners Commissioners shall make full report of their proceedings, with a pIat and to make report. boundaries of the land so assigned by them as dower, to the court appointing them, at the next term thereof; which report, if approved, shall be recorded among the records of the court; f not approved. but, if it shall not be approved, the commissioners shall again proceed as before directed, and, as often as may be necessaryY Courtmay ap- until their report shall be approved; and such court may, at point new comnissioners, and any time, discharge any commissioner and appoint others in fill vacancies. their stead, and may supply any vacancy which may happen by death, or resignation, or refusal to act of any of the commissioners. when report ap- SEC. 23. When any report assigning dower shall be approved, the court shall impannel a jury to assess the damages, and shall render judgment for the damages assessed, if the same have not before been done, and award a writ of possession, according to the report of the commissioners, and execution for damages. When land not SEC. 24. If the commissioners shall report that the lands or Susceptible of division. other estate is not susceptible of a division, without great injury thereto, a jury shall be impanneled to inquire of the yearly value of the widow's dower therein, and shall assess the same accordingly. Court shall ren- SEC. 25. The court shall, thereupon, render judgment that der judgment that such sum be there be paid to such widow, as an allowance in lieu of dower, paid to the widow yearly. on a day therein named, the sum so assessed as the yearly value of her dower, and the like sum on the same day every year Jury arrears, thereafter, during her natural life; and such jury shall, moredanmages before accruedo. over, if the same have not been done, assess the damages which may have accrued down to the time of rendering their verdict. NBo writ of dow- SEC. 26. No writ of summons in dower shall abate by the er to abate by exception that exception of the tenant or defendant that the demandant hath demandant hath receivedherdow- received her dower of another before her writ was sued out, er of another. CHi, 83.] DOWER. 483 unless he can show that the dower so received was in satisfaction of her dower in the lands whereof she demands dower. SEc. 27. When any widow shall be entitled to dower in lands When widowentitled to dower, or other real estate, whereof her husband died seized, it shall other parties interested may be lawful for any heir or legatee, or the guardians of such as petition court to assign such doware minors, entitled to any interest in such lands or real estate, er or the executors or administrators of the intestate, or any creditor of the widow, or any other person having any interest in such lands,or real estate, to apply, by petition, to the district or probate court of the county wherein the lands lie, to assign and admeasure such dower, giving twenty days notice, in writing, of such intended application, to such widow, by a personal service or by leaving a copy at her usual place of abode. SEC. 28. Upon such application, with due proof of the service upon applicaof such notice, the court shall appoint three commissioners to ofisioner, coap assign and admeasure such dower, who shall take the same oath pointed asbefdoe and perform the like duties, and the court shall proceed in like manner therein as hereinbefore provided in like cases, where the widow demands dower. In proceedings under this section, there Indsch cases, no j udgments for shall be no judgments for damages, and the costs and charges dtagaes; and costs apportionshall be divided and apportioned among the persons concerned, edraong all inaccording to their respective interests in the lands and real estate out of which dower shall be assigned. SEc. 29. When a widow, having no right to demand dower When widow ob - ro tains dower sues out a writ of dower against the guardian of any minor, wrongfully fromn and the guardian endows the widow by favor, or makes default, or by collusion defends the plea faintly, whereby she is awarded her dower, to the prejudice of such minor, such minor, when he arrive at full age, shall have an action to demand seizin or to admeasure such dower according to law. SEC. 30. Every person, who shall not have been made a Anyperson Interested not party to any action and duly notified or summoned to appear, made a party, shall have action and shall not have appeared to any action brought by any widow against such for her dower, (except such as claim under any of the parties who have appeared or were summoned or notified by title derived after the commencement of such action,) shall have their action against such widow to admeasure the dower, and all other persons shall be concluded by the proceedings under the provisions of this act. SEc. 31. When any person, not concluded as aforesaid, shall When such perl son shall file his file his petition in the office of the clerk of the district or pro- petition, pro. bate courts of the county in which the lands or other real estate, 484 DOWER. [C.r 83. in which dower has been assigned under the provisions of this act, are situate, stating that such widow was not entitled to dower in such lands or other real estate, or that her dower was unduly assigned, and claiming title to the lands so assigned or a part thereof, the clerk shall issue a summons thereon in the nature of a writ of admeasurement of dower, which shall be served on such widow as the like process in other cases at law; and such widow may appear and deny the title of the demandant and put him upon the proof thereof, and may show her right of dower, and that it was properly and duly assigned, according to law, and may plead as many pleas as she may think proper, and have every defense which may be allowed by law in like cases, and proceedings shall be had as in ordinary cases at law. If demandant SEC. 32. If it be found that the demandant hath not good hath not good title. title to the premises, or that she is entitled to dower, and the same has been assigned according to her rights, she shall have judgment to retain her dower and to go quit of the said action; If he has good but, if it shall be found that the demandant hath good title, and title, that such widow is not entitled to dower, he shall have judgment of seizin. If proof oftitle SEC. 33. If, upon proof of title in the demandant, it appear in demandant, a nd dower undu- that the widow is entitled to dower, but that the same has not may appoint been duly assigned, the court shall appoint commissioners, as in commissioners aisbeodre pro- case of petition of the widow, who shall take an oath, and proceed in like manner, as hereinbefore provided in the assignment of dower. Court to proceed SEC. 34. The court shall proceed upon their report in the as before provided, same manner, and shall have the same power to supply vacancies and discharge commissioners and appoint others, as is provided in case of commissioners appointed to assign dower; and when the report is approved, shall award a writ of possession All parties con- accordingly; and all parties to any such action and those claimcluded thereby.. lded thereby. ing under them shall be concluded thereby. broughttioguar- SEC. 35. When such action is brought by any guardian, his dian, ward not ward, when he becomes of age, shall not be bound thereby, if bound thereby. a the judgment be obtained by collusion, but may have his action within three years after he comes of age; and, in like manner, the widow shall be aided, if she be impleaded and loose her dower by default; but she shall recover her dower, if she hath right thereto, as if no proceeding had ever been had. Compensation of SEC. 36. The charge of the commissioners for their services, CH. 83.] DOWER. 485 not exceeding one dollar per day each, shall be taxed as other commissioners, costs; and, when judgment shall be for the demandant, he orParty prevailing to have costs. she shall have judgment to recover his or her costs; and, when the judgment shall be for the defendant, he shall recover his costs. SEC. 37. In all cases of judgment for damages in favor of Execution issue only against esany widow, under the provisions of this act, execution thereof tateinwhichde dower assigned. shall be awarded only against the estate in which dower shall be assigned. SEC. 38. When a writ of possession shall not have been When yearly allowance of wvidawarded by reason that a division of the estate cannot be had, ow, de,, court may issue execuiand a yearly allowance shall have been adjudged in lieu thereof, tion for amount. the court, when any such yearly allowance shall become due and be unpaid, shall award execution therefor in favor of such widow; or, if she die before the end of any year, then in favor If she die, in favor o, her execuof her executors or administrators, for all arrearages, and atotrs or adminjust proportion of the last year's allowance, computing the time which had elapsed at the time of her death. SEC. 39. No action, brought by any widow for the recovery No action shall abate by the of her dower, shall abate by the death of either party; but, if death of either party. the demandant die, her husband, if she be married, or, if not, her executors or administrators, may appear and prosecute the action; but no admeasurement of dower or writ of possession Action, how proceeded with. shall, in such case, be awarded, but he or they shall have judgment and execution only for the damages occasioned by the deforcement. SEC. 40. If she die before action brought, her executors and If she die before action brought. administrators may maintain an action, in which no admeasurement shall be made or writ of possession awarded; but, upon the issue found, the court or jury shall assess the damages according to this act; and, where one or more of the defendants If one or mole deiBndants die. die, the actions shall proceed against the survivors; and, if all If all defendants die. the defendants die, the action may be renewed against the executors and administrators, as in other cases; but any other person claiming title to the land may be made a party by his Any person may appear as devoluntarily appearing to such action as a defendant. fendant. SEC. 41. No [action] against any widow for admeasurement No action shall abate by death of dower shall abate by the death of the plaintiff or demandant, of plaintiff. but his heir, legatee and the guardians of such as are minors, may appear and prosecute such action. SEc. 42. If either party shall feel aggrieved by the final If either party aggrieved, apjudgment of the court lie may have an appeal or prosecute a peal. 486 DRAM SHOPS AND LIQUORS. [CE. 84. writ of error, in the same manner as in other actions at law; but no appeal or writ of error shall operate as a supercedeas, less the appellant or plaintiff in error shall enter into recognizance as required by law. Whlenl judgJment SEC. 43. When the judgment shall be that the widow be be in favor of widow, ldefond- seized of her dower, the appellant shall become bound in such bant shall become bound for dam- recognizance to-pay not only all damages which have been adjudged, but all which may be adjudged to such widow in the action thereafter; and, when any such judgment shall be affirmed, there shall be a writ to inquire of the mesne profit and damages by waste done after the first judgment. Comipensation of SEC. 44. The compensation of the judges of probate and judg es and clerks clerks, aside from ordinary fees, shall be such as the Board of County Commissioners may determine and allow. SEc. 45. This act to take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER LXXXIV. (Acts of 1859, Chapter XCI.) AN ACT to restrain Dram Shops and Taverns, and regulate the sale of Intoxicating Liquors. Be it enacted by the Governor and Legislative Assemlbly of the Territory of Kansas: Petilion for liq- SECTION 1. That, before a dram shop license, tavern license nor license, what it mout show,. or grocery license shall be granted to any person applying for Tax. the same, such person, if applying for a township license, shall present to the tribunal transacting county business, a petition or recommendation, signed by a majority of the householders of the township or the county in which such dram shop, tavern or grocery is to be kept, or, if the same is to be kept in an incorporated city or town, then to the city council thereof, a petition, signed by a majority of the householders of the ward in which said dram shop, or tavern, or grocery is to be kept, recommending such person as a fit person to keep the same, and requesting that a license be granted to him for such purpose. Te, ~ SEC. 2. That upon every liceiise granted to a dram shop keeper, and upon every license granted to a tavern keeper or CH. 83.] DRAM SHOPS AND LIQUORS. 487 grocery, there shall be levied a tax of not less than fifty dollars nor more than five hundred dollars, for every period of twelve months, the amount of tax to be determined by the tribunal granting the license. The said tax to be paid into the treasury To whom paid. of the counVt or city granting such license. And it shall be the duty of the board of county supervisors to appropriate all Supervisors appropriate ioen. moneys received for license under this act for the benefit of the ey. township in which such license was granted. SEc. 3. That any person, without taking out and having a Penalty for sellicense as grocer, dram shop keeper or tavern keeper, whocense. shall, directly or indirectly, sell any spirituous, vinous or fermented, or other intoxicating liquors, shall be fined in any sum not more than one hundred dollars for each offence, and any person convicted of violating these provisions shall, for every second or subsequent offence, be fined a sum not more than the above named, or, may be indicted for a misdemeanor, and fined not less than five hundred dollars, and imprisoned in the county jail not more than six months. SEC. 4. That any person who shall keep open any porter, selling on0l Snday, day of elecale, or beer house, grocery, dram shop or tippling house, or tion, or fourth of July, a misshall sell or retail any fermented, distilled or intoxicating liquors demeanor. on the first day of the week, commonly called Sunday, the fourth of July, or upon any election day, shall. on conviction thereof, be adjudged guilty of a misdemeanor, and fined a sum not less than twenty-five dollars nor more than one hundred dollars, and Penalty. be imprisoned in the county jail not less than ten nor more than thirty days. If such person is licensed as a grocer, dram shop keeper, or tavern keeper, he shall, in addition to the above provisions, forfeit his license, and shall not again be allowed to Forfeiture of liobtain a license under the law for the period of two years next after conviction. SEC. 5. That, before any person shall be licensed as a dram Mult give bond to comply with shop keeper, or grocer, or tavern keeper, under the provisions the law. of this act, he shall execute, to the tribunal granting such license, a bond, in the sum of two thousand dollars, with at least two securities to be approved by said tribunal, conditioned that he will not keep a disorderly house; that he will not sell or permit to be sold any intoxicating liquors to any minor without the consent of the guardian of such minor; that he will not keep his dram shop, tavern or grocery open on Sundays, fourth of July, or any election day, nor will he sell or allow to be sold thereat, on Sunday, fourth of July, or any election day, directly 488 DRAM SHOPS AND LIQUORS. [CH. 83. or indirectly, any intoxicating liquors; and, upon said person being convicted of any of the offences enumerated therein, suit may be brought against said principal and securities, to recover the amount of the fine or fines adjudged against him on said conviction, in any court of competent jurisdiction. tUnlawful to ell SEc. 6. That it shall be unlawful for any person or persons, persons. by agent or otherwise, to sell intoxicating liquors to persons intoxicated or who are in the habit of getting intoxicated, or any married man, against the known wishes of his wife. Places owher SEC. 7. That all places where intoxicating liquors are sold, in sold contrary to uisabated as violation of this act, shall be taken, held and declared to be common nuisances, and all rooms, taverns, eating houses, bazaars, restaurants, groceries, coffee houses, cellars or other places of public resort, where intoxicating liquors are sold in violation of this act, shall be shut up and abated as public nuisances. Fine of fietti dl SEC. 8. That it shall be unlawful for any person to get inlars for getting intoxicated. toxicated, and every person found in a state of intoxication shall, upon conviction thereof before any justice of the peace, be fined the sum of five dollars. Liability for sel- SEC. 9. That every person who shall, by the sale of intoxiling to intoxicated persons. cating liquors, cause the intoxication of any other person, such person or persons shall be liable for and compelled to pay a reasonable compensation to any person who may take charge of and provide for such intoxicated person, and one dollar per day in addition thereto for every day such intoxicated person shall be kept in consequence of such intoxication, which sum may be recovered by a civil action before any court having jurisdiction. Parties injured SEC. 10. That every wife, child, parent, guardian, employer, by sale of liquor to intoxicated or other person, who shall be injured in person or property or persons may sue and recover. means of support, by any intoxicated person or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent, guardian, employer or other person shall have a right of action in his or her own name against any person who shall, by selling intoxicating liquors, have caused the intoxication of such person for all damages actually sustained, as well Married woman as exemplary damages; and a married woman shall have right may sue as a siugle person. to bring suits, prosecute and control the same and the amount recovered, the same as if a feme sole, and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parents, guardian or next friend, as the court CI. 83.] DRAM SHOPS AND LIQUORS. 489 shall direct, and all suits for damages, under this act, shall be by civil action in any of the courts of this Territory having jurisdiction thereof. SEC. 11. That the giving away of intoxicating liquors or Giving away to evade the law other shifts or device, to evade the provisions of this act, shalldeemed selling. be deemed; and held to be an unlawful selling within the provisions of this act. SEC. 12. That for all fines and costs assessed against any per-No property exson or persons for any violation of this act, the real estate and eupted furom personal property of such person or persons of every kind,this act. without exemption, shall be liable for the payment thereof, and such fines and costs shall be a lien upon such real estate until paid; and, in case any person or persons shall rent or lease any building or premises, and knowingly suffer the same to be used and occupied for the sale of intoxicating liquors, contrary to this act, such building and premises so leased and occupied shall be held liable for and may be sold to pay all fines and costs assessed against the person occupying such building or premises for any violation of this act. SEc. 13. In all prosecutions under this act, by indictment or In prosecutions, not necessary to otherwise, it shall not be necessary to state the kind of liquors state kind of liquor sold. sold, but shall be necessary to describe the place where sold, and for any violation of the fourth or fifth sections, it shall not be necessary to state the names of any person to whom sold, In complaint against keeper of and, in all cases, the person or persons to whom intoxicatingdratn shop, need not state to liquors shall be sold, in violation of this act, shall be competent, vwhom sold. as witnesses, to prove such fact or any other tending thereto. SEC. 14. Justices of the peace shall have jurisdiction andJustices ofpeace take cognizance of offences under this act, and shall have au-havejuridiction thority to impose fines not to exceed one hundred dollars, or to bind over for appearance at the proper court, under the act concerning criminal procedure. SEC. 15. All corporated cities, containing one thousand in- corporate cities of one thousand habitants or more, shall be entirely exempt from the operations inhabitants and over exemptt of this act, and such cities shall have full power to regulate fromthis act. licenses for all purposes and dispose of the proceeds thereof. SEC. 16. This act shall take effect and be in force from and after its passage. Approved February 11, 1859. 4930:ELECTOR'S PRIVILEGE-ELECTIONS. [Ca. 85-86. CHAPTER LXXXV. (Acts of 1862.) AN ACT to Protect the Purity of the Ballot Box, Be it enacted by the Legislature of the State of Kansas. SECTION 1. No person shall be entitled to the privileges of an elector of the State of Kansas, who shall refuse to take the oath of allegiance to the government of the United States. SEC. 2. This act shall take effect and be in force from and after its publication in the statute book. CHAPTER LXXXVI. (Acts of 1861. Chapter XXVIII.) AN ACT to regulate Elections and to prescribe the qualifications of Voters, and to prevent illegal voting. Be it enacted by the Legislature of the State of Kansas: Iow elections SECTION 1. That all elections hereafter to be held for State, shall be held. [Ch. 203-1] district and county officers, shall be held and conducted in the manner prescribed in this act. rach townshipnct y SEC. 2. That each township in the several counties shall ohnallecntitot d compose one election district, unless such township is now or trict. shall hereafter be divided, by law, into more districts than one; the election to be held at such place in such township or district as the trustee, and any justice of the peace in each township, Hlow place of shall direct, and each ward of any city that is or may be divided holding election to be designated. into wards, shall compose one election district; the elections therein to be held at such places as the members of the city council may direct, and in all elections held under this act, any three of said councilmen shall serve as judges and perform the duties required of the township trustees and justices of the peace, in like cases. Who shofll bc- SEC. 3. That the trustee and any two justices of the peace jodges of election. shall be judges of all elections in their respective townships, and shall have power to appoint two clerks for each election; and, should the said judges of such election, or either of them, fail to meet at the place of holding the election, by the hour of eight o'clock in the morning, then the electors present shall select from their number, viva voce, one or more judges of election, as the case may be, who shall have all the powers and CiH. 86.] ELECTIONS. 491 authority of the judges herein mentioned; and, previous to Officers slall be receiving any votes, the judges and clerks shall severally take and subscribe an oath or affirmation to support the Constitution of the United States and of the State of Kansas; that they will faithfully discharge the duties of their respective offices, which oath or affirmation the judges and clerks are hereby empowered to administer to each other. SEc. 4. That the trustee of each township shall cause to be Townshlip tl:nstee shall provide provided, at the expense of the township, a ballot box for each a ballot box. election district within his township which may be destitute of the same, and preserve it for the use of the elections, and carry said ballot box, with a copy of the laws containing this act, to the place or places of holding elections in his township, as often as it may be necessary to meet and vote for officers under this act. SEc. 5. That it shall be the duty of the sheriff, and he is iieriftshall give hereby required, fifteen days at least before the holding of any holding lee. general election, or ten days before the holding of any special election, to give public notice, by proclamation throughout his county, of the time of holding such elections, and the officers at that time to be chosen, one copy of which shall be posted up at each of the places where the elections are appointed to be held, and inserted in some newspaper published in the county, if any be published therein. SEC. 6. That, at all elections held under this act, the polls Hours of, oting. shall be opened between the hours of eight o'clock in the morning and closed at six in the afternoon of the same day. SEC. 7. That each elector shall, in full view, deliver to one of Manner of voting. the judges of election, a single ballot, or piece of paper on which shall be written or printed the names of the persons voted for, with a proper designation of the office which he or they may be intended to fill. SEC. 8. That the judge to whotn any ticket may be delivered, How votes shatlI shall, upon the receipt thereof, pronounce, in an audible voice, be taken. the name of the elector, and, if no objection shall be made to him, and the judge is satisfied that the elector is legally entitled, according to the Constitution and laws of this State, to vote at the election, he shall immediately put the ticket in the box without inspecting the names written or printed thereon, and the clerks of the election shall enter the name of the elector, and number, in the poll books, agreeably to the printed form in the twenty-fourth section of this act, 492 ELECTIONS. [CH. 86. inule determin- SEC. 9. That the judges of election in determining the resiing the residence of voters. dence of a person offering to vote, shall be governed by the following rules so far as they may be applicable: First-That place shall be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning. Second-A person shall not be considered or held to have lost his residence who shall leave his home and go into another State or Territory, or county of this State, for temporary purposes merely, with an Shall not gain intention of returning. Third-A person shall not be considing into, a plac ered or held to have gained a residence, in any county of this temporarily. State, into which he shall have come for temporary purposes merely, without the intention of making said county his home, but with the intention of leaving the same when he shall have accomplished the business that brought him into it. FourthIf a person remove to another State or to any of the Territories, with the intention of making it his permanent residence, he shall be considered and held to have lost his residence in this State. Fifth-If a person remove to another State, or to any of the Territories, with an intention of remaining there for an indefinite time and as a place of present residence, he shall be considered and held to have lost his residence in this State, notwithstanding he may entertain an intention to return at some future period. Sixth-The place where a married man's family resides shall be considered and held to be his residence. Seventh If a person shall go into another State or Territory, and while there exercise the right of suffrage, he shall be considered and held to have lost his residence in this State. If a person is SEC. 10. If a person offering to vote is challenged as unqualchallenged, how to proceed. ified, by one of the judges of election or by any elector, one of tie judges shall tender to him the following oath or affirmation:'" You do solemnly swear (or affirm) that you will fully and truly answer all such questions as shall be put to you touching your place of residence and qualifications of an elector at this elecIf challenged as tion." First, If the person be challenged as unqualified on the to citizenship. to citizenship. ground that he is not a citizen, the judges, or one of them, shall put the following questions: 1. Are you a citizen of the United States? 2. Are you a native or naturalized citizen? and, if neither, have you declared your intention to become a citizen conformably to the laws of the United States on the subject of Certificate ot naturalization? If the person offering to vote claims to be a naturalization shall be produ. naturalized citizen of the United States, or that he has declared ced. Cu. 86.] ELECTIONS. 493 his intention to become such, he shall, before his vote shall be received, produce, for the inspection of the judges of election, a certificate of his naturalization, or declaration of intention to become a citizen, and, also, state -under oath or affirmation, that he is the identical person named therein; Provided, That the May make oath as to loss of noat production of such certificate shall be dispensed with, if the uralization paperson offering to vote shall state, under oath or affirmation,pers. when, where and in what court he was naturalized; that he has had a certificate of his naturalization, or, that he has declared his intention to become a citizen; that he has had his certificate of declaration of intention, and that against his will the same is lost, destroyed or beyond his power to-produce to the judges of election; Provided, further, That if he shall state, under oath or affirmation, that, by reason of the naturalization of his parents, or one of them, he has become a citizen of the United States, and when and where his parents were naturalized, the certificate of said naturalization need not be produced. Second, If as to residence If the person be challenged as -unqualified, on the ground that he has not resided in this State for six months immediately preceding the election, the judges, or one of them, shall put the following questions: 1. Have you resided in this State for six.months immediately preceding this election? 2. Have you been absent from this State within the six months immediately preceding this election? If 1" yes." 3. When you left, was it for a temporary purpose, with the design of returning, or did you intend remaining away? 4. Did you, while absent, look upon and regard this State as your home? 5. Did you, while Same. absent, vote in any other State or any Territory? Third, If the person is challenged, on the ground that he is not a resident of the township or ward where he offers to vote, the judges, or one of them, shall put the following questions: 1. When did you come into this township (or ward?) 2. When you came into this township (or ward) did you come for a temporary purpose merely, or for the purpose of making it your home? 3. Have you been, for the last thirty days, an actual resident of this township, (or ward?) Fourth, If the person be challenged If as to age as unqualified, on the ground that he is not twenty-one years of age, the judges, or one of them, shall put the following question: Are you twenty-one years of age to the best of your knowledge and belief? The judges of the election, or one of them, shall put all such other questions to the persons challenged, 32 494 ELECTIONS. [Cl. 86. under the respective heads aforesaid, as may be necessary to test his qualifications as an elector at that election. IT person chal- SEC. 11. If the person challenged, as aforesaid, shall refuse longed refuses to 8,'wer. to answer fully any question which shall be put to him as aforesaid, the judges shall reject his vote. If challenge not SEC. 12. If the challenge be not withdrawn, after the person withdrawn after offering to vote shall have answered the questions put to him as aforesaid, one of the judges of election shall tender to him Oath. the following oath: "You do solemnly swear (or affirm) that you are a citizen of the United States (or declared your intention to become such), of the age of twenty-one years; that you have been an inhabitant of this State for six months next preceding this election; that you have been, for the last thirty days, and now are, an actual resident of this township (or ward); and that you have not voted at this election." If oath not ta- SEC. 13. If any person shall refuse to take the oath or ken, vote rejectaffirmation so tendered, his vote shall be rejected: Provided, that, after such vote shall have been taken, the judges may, nevertheless, refuse to permit such person to vote, if they shall be satisfied, from record, evidence, or other legal testimony adduced before them, that he is not a legal voter; and they are hereby authorized to administer the necessary oaths or affirmations to all witnesses brought before them to testify to the qualifications of a person offering to vote. Itf vote received, SEC. 14. Whenever any person's vote shall be received to be noted on. polt book. after having taken the oath prescribed in the twelfth section of this act, it shall be the duty of the clerks of the election to write on the poll book, at the end of such person's name, the word " sworn." aty of judge to SEC. 15. It shall be the duty of each judge of election to challenge on fepicion'. challenge any person offering to vote, whom he shall know or suspect not to be qualified as an elector. llpeed, how. SEC. 16. It shall be the duty of the judges of election, or one of them, immediately before proclamation is made of the opening of the polls, to open the ballot-boxes in the presence of the people there assembled, and turn them upside down, so as to empty them of everything that may be in them, and then lock them, and they shall not be re-opened until for the purpose of counting the ballots therein, at the close of the election. relds of can. SEC. 17. The judges of election shall, if requested, permit aidates may witAde cavass. the respective candidates, or one or more, not exceeding three, Ca. 86] ELECTIONS, 495 of their friends, to be present in the room where the judges are, during the time of receiving and counting the votes. SEC. 18. That, at the close of the polls, the poll books shall Pied boo tto b be signed by the judges, and attested by the clerks, and the tested names therein contained shall be counted, and the number set down at the foot of the poll books, in the manner hereinafter provided in the form of the poll books. SEC. 19. That, after the poll books are signed, in the After that, balmanner hereinafter prescribed, the ballot-boxes shall be ed."'v~tes""o opened, and the judges shall proceed to count the votes therein contained. SEC. 20. That the clerks shall enter) in a column under the Clerks shall eater votes, how. names of the persons voted for, as hereinafter provided in the form of the poll books, all the votes as declared read by the judges. SEC. 21. If two or more ballots shall be found so folded If ballotsfound together as to present the appearance of a single ballot, they tog shall be laid aside until the count of the votes is completed, and if, upon a comparison of the count and the appearance of such ballot, a majority of the board shall be of opinion that the ballots thus folded together were voted by one elector, they shall be excluded from the count. SEC. 22. That if a ballot should be found to contain aIfballot has too greater number of names, for any one office, than the number y 4 of persons required to fill that office, it shall be considered fraudulent as to the whole of the names designated to fill such office, but no further. SEC. 23. Thlat, after the examination of the ballots shall afterexamina tion completed, be completed, the number of votes for each person shall be rIesult proolaime enumerated under the inspection of the judges, and set down ed. as hereinafter provided in the form of the poll books, and be publicly proclaimed to the people present. SEC. 24. That the following shall be the form of the poll borm o poto books to be kept by the judges and clerks of elections held under this act: 496 ELECTIONS. [Em. 86& POLL BOOKS of the the election held in the township (or ward) of, in lhie county of s on the - day of, in the year A. D. one thousand eight hundred and -. A. B., C. D.. and E.. F., judges, and J. K. and L. M., clerks of said election, were respectively sworn (or affirmed) as the law directs, previous to their entering on the duties of their respective'_offices. NUMBER AND NAMES OF ELECTORS. No. 1. A. B. No.3. B. F. No. 2. C.D. No. 4. G.1H. It is hereby certified that the number of electors at this election amounts to - ATTEST: A. B., ) G. H., ClerC D, udgs. J. K., E. F.,'1Al10 JO'O K'V Governor.'seroA So'o'o[ -ysOJoA Jo'oN'. Lieutenant-Governor.'~s1oAJO''o r, soao~ go'oK a' SO4A JO OoN'H Secretary of State,'*890 JO'-oK a a'saooa JO'O'H Auditor of State.'sOJoA JO-O'I I" o. d *saol o 3o.I Treasurer of State, o s0owA 30'oN sfalos' oA Jo ON: ) Sup't of Public Instruction. -.'~sJoA Jo'O Nq P'soo 0'ON'oK Attorney General. o P' v'seJOAJo'ON'N o's5A JO'O N'O Judge of Supreme Court. 0'soJA JO'ON'o I'sS9oA Jo'ON'b Representative in Congress.'se0A JO0'oN' saqoA JO'-o'S Judge of District Court. gi's0O1A JO'O3 N'JSno'esaoA JO'ON'*n Senators. Representatives in o Ca I the Legislature.'sa~oa Jo'oN'. Representatives. the egilature'0seAoJO'o X' o oJa5A Jo oJ0:N:R Probate Judge.'' sJoA JO'o1 a 40. ~ saloA JO'oN ~" Clerk of District Court. -SOJOA JO'ON II 0 saaoa,Jo'oN rI County Clerk. sJoA JO'oN'r'saewa JO'OKN' Sheriff. 1's5~oa Jo'oN "I - c*0A'0ooA Jo''o C'sI'saOA JO'ONK'Iq Coroner. ~a'owa Jo'oN'N'SelcA JO'ON'0 County Commissioner. d'001oA JO'oN' C od - serox,o'oR-'O P''sOA Jo oK b County Treasurer.' >'soAJO'oNR'o 0 seroA JO'SoN County Surveyor.,F SI:I~ ~'sero0 JO'oN O Recorder of Deeds.'8s10o Jo'ON'A liii liii so County Attorney,, ( 0 JO'OK. o X o'o 9('M e,ddo au) ~a0OA JO'oN EtC'ss8oA JO'ON'Z VJH. 86.] ELECTIONS. 497 SEC. 25. That, after canvassing the votes in the mannte r cftcnvassing one poll book aforesaid, the judges, before they adjourn, shall put under saledany sclerk cover one of the poll books, seal the same, and direct it to the county clerk of the county where the return is to be made, and the poll book, thus sealed and directed, shall be conveyed by one of the judges, to be determined by lot, if they can not otherwise agree, to the county clerk of the county, within two days from the day of the election, and the other poll book Theotherpoll book deposited shall be deposited with the trustee of the township, or clerk With township trustee or city of a city, as the case may be, within three days from the dayclerk. of election, there to remain for the use of the persons who may choose to inspect the same. SEC. 26. That the judges of election shall carefully envelop Balloth preSorved, both defectand preserve all ballots rejected or defective, as well as the ive andgood. other ballots, and deliver the same to the township trustee or city clerk, as the case may be, to be filed in his office. SEC. 27. That, on the Friday next following the election, aodl isionerk the county clerk and the commissioners of the county, or any mest aed can-. two of said commissioners, at ten o'clock A. M. of said day, shall meet at the office of said county clerk, and shall proceed to open the several returns which shall have been made to his office, and said commissioners shall determine the persons who have received the greatest number of votes in the county, for the several county, district, and State officers, and members of the Senate and House of Representatives, and a representative in Congress, and such determination shall be reduced to writing, and signed by said commissioners, and attested by the clerk, and shall be annexed to the abstract of votes given for such officers, respectively, hereinafter provided for in section thirty of this act. SEC. 28. That, in all elections for the choice of any officer, Persons having the highest nuomunless it is otherwise expressly provided, the person having-ber of votes to be declaxed the highest number of votes for any office, shall be deemedelected. to have been elected to that office, and whenever it shall satisfactorily appear that any person has received the highest nulnber of votes for any office, such person shall receive theRealwill of the people to be recertificate of election, notwithstanding the provisions of law spected. may not have been fully complied with illn noticing and con. ducting the election, so that the real will of the people may not be defeated by any informality of any officer. SEc. 29. That, in all cases where there is a tie vote between If a tie vote, in wo candidates for te same county office, avng the hdetwo candidates for the same county office, having the highest teranined by lot. 498 ELECTIONS. [CH. 86, number of votes, the commissioners aforesaid shall proceed to determine by lot which of the two candidates shalI be elected. When result de- SEC. 30. That, as soon as the commissioners aforesaid shall termined, clerk,tomake up tb- have determined the persons who have received the highest number of votes for any office, the county clerk shall make out abstracts of the votes in the following manner: First, In what order. The abstract of votes for Governor, Lieutenant-Governor, Secretary of State, Auditor of State, Treasurer of State, Attorney-General, Superintendent of Public Instruction and Justice (or Justices) of the Supreme Court shall be on one sheet. Second, The abstract of votes for a judge or judges of the District Court, on one sheet. Third, The abstract of votes for a member or members of the Senate and House of Representatives, on one sheet. Fourth, The abstract of votes for a Representative in Congress, on one sheet. Fifth, The abstract of votes for county officers, on one sheet; which abstracts bebbstracts certi- ing certified and signed by the county commissionllers, and atfed and signed. tested by the county clerk, shall be deposited in his office, and certified copies of abstracts, numbered one, two, three and four, (when said officers have been voted for at said election,) under the official seal of said clerk, and shall be placed in SenttoSecretary separate envelopes, indorsed and directed to the Secretary of tate State, and forwarded immediately to the seat of government, by mail, and the said clerk shall, respectively, indorse on the back of the envelope in which the said certified copies are inclosed, "certified copy of the abstract of votes cast for Governor, &c., members of the Legislature, (as the case may be,) cast at the regular election in county, 18-." erkto make SEC. 31. That the said county clerk shall immediately make out certificates out, in pursuance of the determination of such county commissioners, a certificate of election, for each person having the highest number of votes for any county office, or, in case of tie, who have been decided elected by lot, and deliver the same to the person, upon his making application therefor. It county clerk SEC. 32. That, whenever it shall so happen that the county die or be absent, deputyto act. clerk shall die, be absent, or, from any casualty, be prevented from opening the returns of votes at any election, it shall be lawful for his deputy to discharge the duties required of such Deputy, how ap- clerk, by law; which deputy shall be appointed by a majority pointed. a bd tp e of the county commissioners, when said clerk has failed to appoint a deputy. soard of State SEC. 33. The Governor, Secretary of State, Auditor of C 6. 86.] ELECTIONS. 499 State, Treasurer of State and Attorney-General, or any three of them, shall constitute the board of State canvassers. SEC. 34. The Secretary of State, upon receipt of the certi- Secretary of State to open fled abstracts of votes, given in the several counties, directed and recordabto be sent to him, shall proceed to open the same, and shall record the same in a suitable book, to be kept by him for that purpose, and shall file and carefully preserve, in his office, said abstracts and the original envelopes in which they were inclosed. SEc. 35. If; from any county, no such abstract of votes shall Tf no ~abtraet no received from any county, have been received, within twenty-five days next after any specil m esielection, by the Secretary of State, he shall dispatch a special patched. messenger to obtain a copy of the same from the county clerk of such county, and such clerk shall, immediately on the demand of such messenger, make out and deliver to him the copy required; which copy of the abstract of votes the messenger shall deliver to the Secretary of State without delay, to be recorded by him as aforesaid. SEC. 36. For the purpose of canvassing the result of elec- state-oanv, ti'ons, the State board of canvassers shall meet at the office of and how to act. the Secretary of State, on the Monday preceding the twentysecond day of December, next after the election, when they shall, upon the certified abstracts on file in the office of Secretary of State, proceed to examine and make statement of the whole number of votes given at any such election, for State officers, the justices of the Supreme and judges of the District Courts, the members of the Senate and House of Representatives, and representative in Congrees, or for so many of said officers as may have been voted for at-such election, which statements shall show the names of the persons to whom such votes shall have been given for either of the said offices, and the whole number given to each, distinguishing the several districts and counties in which they were given; they shall certify such statements to be correct, and subscribe their names thereto, and they shall, thereupon determine what persons have been, by the greatest number of votes, duly elected to such offices, or either of them, and shall indorse and subscribe, on such statement, a certificate of such determination, and determine and deliver them to the Secretary of State. SEC. 37. That, in all cases where there is a tie vote between A tte Oote fOb two candidates, for any State office, or for members, rSen two candidates, for any State office, or for memnbers of the Sen- s~ult determined by lot, 5:0.0 ELECTIONS. [CII. 86. ate and House of Representatives, having the highest number of votes for said office, the State canvassers shall proceed to determine, by lot, in presence of the candidates, which of the Notice to be giv- two candidates shall be elected, Reasonable notice shall be en to candidates t of such deter- given to such candidates of the time when such election will be so determined, and, if such candidates, or either of them, shall fail to appear, in accordance with said notice, then the State canvassers shall proceed so to determine said election in the absence of the candidates. Secretary shall SEC. 38. The Secretary of State shall record, in his office, record statement &c., and forwardin a book to be kept by him for that purpose, each certified certificates of election. statement and determination, as made by the board of State canvassers, and shall, without delay, make out and transmit, to each of the persons thereby declared to be elected, a certificate of his election, certified by him, under his seal of office, and he shall, also, forthwith cause a copy of such certified statement and determination to be published in a newspaper published at the seat of government. Tcsancies filled SEC. 39. All vacancies; in any State or county office, and by the governor. in the Supreme or District Courts, unless otherwise provided for by law, shall be filled by, appointment from the Governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election. Term of office, SEC. 40. The regular term of office of all State, district and commence when county officers; of the justices of the Supreme and judges of the District Courts, shall commence on the second Monday of January next after the election. bold office how SEC. 41. Any of the said officers that may be elected or aplong. pointed to fill vacancies, may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified; but, if appointed, they shall hold the same only until their successors are elected and qualified. Tacanciesincer- SEC. 42. That, whenever a vacancy shall occur in the office tain offices to be filled by special of Senator or member of the House of Representatives, in election. any county or counties, or district in this State, entitled by law to such Senator or Representatives, the Governor shall, upon satisfactory information thereof, issue a writ or writs, of election, to the sheriff or sheriffs of said county or counties, entitled by law to such Senator or Representatives, as aforesaid, directing him to give notice of a special election, within Cii. 86,] ELECTIONS. 501 such county or counties, on a day specified in such writ or writs, for the purpose of filling such vacancy, and the sheriff shall proceed to give notice of the time and place of holding such election, as in other cases; and such election shall be held and conducted, and the returns thereof be made to the county clerks, in the same manner, and within the time specified in this act. SEC. 43. The regular terms of office for members of the Term of omce of senators and Senate and House of Representatives shall commence on the representatives. first day of January next succeeding their election. SEC. 44. In all elections to fill the vacancies under this act, Commissionders to meet and canwhen a special election is held, the commissioners of theassas before. county shall, on the next Friday, or immediately thereafter, at ten o'clock A. MI., assemble at the county clerk's office, and proceed to open and canvass the returns, and, in making abstracts and returns to the Secretary of State, the same rules shall be observed as are prescribed in cases of general elections, and the Secretary of State shall, immediately upon the receipts of such returns, at his office, convene at least two of the State board of ctnvassers, beside himself, who shall proceed as in case of general elections. SEC. 45. If any officer, messenger, or other person on whom Ifyany ofcer of elections w illfulany duty is enjoined, by law, relative to general or specially noglectdulty. elections, under this act, shall be guilty of any willful neglect of such duty, or of any corrupt conduct in the execution of the same, he shall, upon conviction thereof, be deemed guilty of a misdemeanor, and shall be punished, by fine not exceeding five hundred dollars, and by imprisonment, not exceeding one year; and, if any officer shall be convicted as aforesaid, he shall be immediately removed from office. SEC. 46. If any person, challenged as unqualified to vote, If person challenged swear shall be guilty of willful and corrupt swearing or affirming, falsely. in taking any oath or affirmation prescribed by this act, such person shall be adjudged guilty of willful and corrupt perjury, and, upon conviction thereof, shall suffer the punishment attached by the laws of this State to the crime of perjury. SEC. 47. If any judge of the election shall, knowingly, re- If judgeof election receive baleeive or sanction the reception or a vote, from any person lotofchallenged person, &c., not having all the qualifications of an elector, prescribed by withoutques. tion, &C. this act, or receive or sanction the reception of a ballot, from any person who shall refuse to answer any question which shall be put to him, in accordance with the provisions of' the 502 ELECTIONS. [CH. 86. tenth section of this act, or shall refuse or sanction the refusal, by any other judge of the board to which he shall belong, to administcr either of the oaths or affirmations prescribed by the tenth and twelfth sections of this act, he shall, upon conviction thereof, be subject to the same punishment as is pre, scribed in section forty-five. ierict on irt. SEC. 48. All prosecutions under the provisions of this act shall be by indictment, before the District Court, in the county where the offence shall have been committed. c auty treasury. pSEC. 49. All fines incurred under this act shall be paid into the county treasvIry where the offence was committed, for the:,::sof. suCh county. -.rotu'y hiB SEC. 50. That every county clerk shall receive for his servct o 99] ices, performed under this act, the following fees, to wit: For making out abstracts, for every hundred words, six cents; for each certificate, with the seal attached to abstract, thirty-five cents; for certificate to county officer, of his election, with seal attached, fifty cents; which fees shall be paid out of the county treasury. oees of sheriff. SEC. 51. That the sheriffs of the different counties shall each receive for their services, performed under this act, the following fees: For posting each notice of the election, the sum of twenty-five cents, and five cents per mile for each mile necessarily traveled; which fees shall be paid out of the county treasury. ooes of judges SEC. 52. That the judgyes and clerks of any election hold and olork. under this act, shall receive, as compensation for their services, the sum of two dollars each, and the judge carrying the returns fiom his township election district, or ward, to the county clerk's office, shall receive for said service, the sum of one dollar, and five cents per mile for each mile necessarily traveled in going to and returning from said office, said compensation to be paid out of the county treasury. Fees of special SEC. 53 That the special messenger, sent by the Secretary ecroetary of of State to any county, for a copy of the abstract of votes of State- such county, shall receive, as compensation for his services, the sum of two dollars per day for the time necessary to go and return to such county, and five cents per;nile for each mile traveled in going to and returning, by the usual traveled route, from the capital to the county seat of such county. Laws repealed. SEC. 54. All laws and parts of laws inconsistent with this act, shall be and the same are hereby repealed. CO. 87.] ELECTIONS. 503 SEC. 55. This act shall take effect and be in force from and Tal effect, when. after its publication. Approved May 23, 1861. CHAPTER LXXXVII. (Acts of 1861, Chapter XXXI.) AN ACT to provide for the election of State, District and County Officersm Senators and Members of the House of Representatives, Justices of the Supreme Court, and Judges of the District Courts, and Representative in Congress. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That, on the Tuesday succeeding the first Monday Election of representatives and in November, A. D. 1862, and on the Tuesday succeeding thes tate offsore. first Monday in November, in every second year thereafter, there shall be held a general election, for the election of a Rep-.resentative in Congress, Governor, Lieutenant Governor, Secretary of State, Auditor of State, Treasurer of State, Attorney General, Superintendent of Public Instruction, Justice of the Supreme Court, Senators, and in each county one Probate Judge, one Clerk of the District Court, and one County Superintendent of Public Instruction, SEC. 2. That, on the Tuesday succeeding the first Monday slectionofcoun ty officers. in November next, and on the Tuesday succeeding the first Monday in November, in every second year thereafter, there shall be held a general election, for the election in each county of one Sheriff, one Coroner, three,County Commissioners, one County Clerk, one County Treasurer, one Register of Deeds, one County Surveyor, one County Attorney, and one County Assessor. SEC. 3. That, on the Tuesday succeeding the first Monday Election of. judge of dintrtct in November, A. D. 1864, and on the Tuesday succeeding the ouot. first Monday in November in every fourth year thereafter, there shall be held a general election, for the election, in each Judicial District, of one Judge of the District Court. SEC. 4. That, on the Tuesday succeeding the first Monday Election of rep in November next, and on the Tuesday succeeding the first legisltatre. Monday in November annually thereafter, there shall be held a general election for members of the House of Representatives of the Legislature. Sec. 5. That this act shall take effect and be in force from When, tk and after its publication. efect. Approved May 22, 1861. 504 ELECTIONS. [Cii. 88. CHAPTER LXXXVIII. (Acts of 1861. Chap. XXXII.) AN ACT providing for the Election of Township Officers. Be it enacted by the Legislature of the State of Kansas: What township SECTION 1.. That, on the fourth Monday of March, A. D. officers to be electedannually. 1862, and annually thereafter, there shall be elected, in each municipal township in the State, one township trustee, two constables; (and one road overseer in each road district in such township,) Provided, that in each township which is entitled, by law, to elect three justices of the peace, there shall be elected three constables. hen justices allof SEC. 2. On the fourth Monday of March, A. D. 1863, and be elected. every two years thereafter, there shall be elected, in each municipal township in the State, two justices of the peace; or, if a greater number than two have been provided for by law in any township, then such number as said law shall make provision for; Provided, That, whenever there is a vacancy in the office of justice of the peace in any township, at the time of the annual township election therein, such vacancy shall be filled at said election. Ballot contain. SEC. 3. It shall not be lawful for any elector to vote for more one name for road overseer than one road overseer; and any ballot containing more than shall be rejecteda shallbe rejected. one name for the office of overseer, shall be rejected, so far as that office is concerned, nor shall any elector vote for a road overseer, except for the district in which he may reside; and N the number of road district shall be given upon the ballot, districts to be on ballot. in connection with the name of the person voted for. County commis- SEC. 4. The county boards of commissioners shall constitute sioners shall be canvassers, the board of county canvassers, and they shall assemble, at the office of the county clerk, in their respective counties, on the Tuesday following the first Monday after the election, and proceed to canvass the votes for township trustee, justices of the peace, constables and road overseers. Shall determine SEC. 5. They shall determine who have been elected to the who are elected. office of township trustee in the several townships in their respective counties, and shall reduce such determination to writing, and cause a certified copy thereof to be filed with the records of the clerk's office; and it shall be the duty of the Certificate of county clerk to forthwith issue a certificate of election to each election. person so determined to be elected, and deliver the same, on demand, to the person entitled thereto. CH. 89.] ELECTIONS. 505 SEc. 6. They shall, also, determine who have been elected to Detlbrminatdod the offices of justices of the peace, constables and road over- toriting. seers, in the several townships in their respective counties,, which determination they shall reduce to writing, and cause a certified cbpy thereof to be filed in the office of the county clerk; and it shall be the duty of the said county clerk to issue certificates of election to the persons so determined to be elect- Certiflcate of ed, and deliver the same to the persons entitled thereto, under such regulations as the law may provide. SEC. 7. That, in all cases of a tie between the officers to be In case of tie, county board elected under this act, the county board shall determine by shall determine. lot, which shall be elected. SEc. 8. The elections herein provided for shall be conducted Elections, how conducted in all respects, in accordance with the provisions of the general election law in force at the time of such elections, when such provisions are not in conflict with the provisions of this act. SEc. 9. All acts and parts of acts inconsistent with this act are hereby repealed. SEC. 10. This act to be in force from and after its publication. Approved May 23, 1861. CHAPTER LXXXIX. (Acts of 1861, Chapter XXXIV.) AN AT to prescribe the manner of Contesting the Election of State and County Officers, Members of the Legislature, and other officers. Be it enacted by the Legislature oJ the State of Kansas: SECTION 1. That any candidate or elector, being desirous of anner of con testing election contesting the election of any person declared elected Governor, of State offlcers.Io Lieutenant Governor, Secretary of State, Auditor of State, Treasurer of State, Attorney General, Superintendent of Public Instruction, Justices of the Supreme Court or Judges of the District Court, shall, between the sixth and tenth days of the first session of the Legislature, after the day of election, file a notice of such intention with the Secretary of the Senate, specifying the particular p:oints on which he means to rely; Provided, That no person shall contest the election of district judge, unless he be an elector of the proper judicial district. SEC. 2. That, upon any such notice being filed as aforesaid, Senatelshallheat the Senate shall, by resolution, determine on what day or days contest. I06 ELECTIONS. [CH. 89. they will meet in their chamber, in order to hear and determine any such contest; and thereupon a certified copy of the notice Rotice to be filed by any contester, shall be served upon the incumbent, served on incu*n. ~bt. whose election is sought to be contested, or by leaving a copy thereof at his last or usual place of residence, by such person as shall, by resolution, be appointed, with a notice when he is required to attend in the Senate chamber, to answer the contest. indy of tetimo SEC. 3. That, on the trial of any contested election for any of the officers in the first section of this act named, the parties to such contest may introduce either written or oral testimony, but no depositions shall be read on such trial unless the opposite party shall have had reasonable notice of the time and place of taking the same. Rule to be ob- SEC. 4. That, in conducting any contested election for offices served in con- dusting contest. in the first section of this act named, the following rules shall be observed, to wit: First, On the day and at the hour appointed for that purpose, the Senate, with its proper officers, at their usual place of meeting. Second, The president of the Senate shall preside, but when he is the contestee, the Senate shall elect a president pro tem. Third, The parties to the contest shall then be called by the Secretary of the Senate, and, if they answer, their appearance shall be recorded. Fourth, The contestor shall first introduce his testimony, and then the officer elect shall introduce his; and, after the testimony is gone through on both sides, the contester may, by himself or by his counsel, open the contest; and the officer elect may then proceed, by himself or counsel, to make his defense, and the contestor be heard in reply. Fifth, After the arguments are thus gone through by the parties, any member of the Senate shall be at liberty to offer his reasons for the vote he intends to give. Sixth, The Secretary of the Senate shall keep a regular journal of the proceedings. Seventh, The manner of taking the decision shall be by a call of the members, and a majority of all the votes given shall decide; the president of the Senate, when acting as governor, the person holding the seat, or contestor, not being permitted to vote, either upon the final decision or upon the preliminary questions that have any reference thereto. eat of enaton SEC. 5. The election of any person declared duly elected as and members of. a Senator or member of the House of Representatives, in the Legislature, may be contested by any qualified voter of the CiH. 89.1 ELECTIONS. 507 county or district to be represented by such Senator or Repre- Houste shall be contested by sentative. whom. SEC. 6. The contestant shall, within thirty days after the NotieIhallbli Ferved within declaration of the canvassers, serve on the incumbent a state- thirty days. ment, as hereinafter required, in relation to county officers, except the list of illegal votes, which shall be served with the notice of taking depositions relative to them; and, if no depositions are taken, then twenty days before the hearing. SEC. 7. The probate judge may issue subpoenas in the above ntay o,,0,pl wit. cases, and shall have power to compel the attendance of wit- depositions. nesses, and depositions may be taken under the rules for taking depositions in the district courts. SEC. 8. A copy of the statement and of the notices for tak- Statement, depositions, &c., to be ing depositions, with the service indorsed and verified by affi- transmitted to secretary of davit, if not served by an officer, shall be returned to the officer statiBChowLg taking the depositions, and then, with the depositions, shall be contest will sealed up and transmitted, by mail or by the hands of a sworn officer, to the Secretary of State, with an indorsement thereon, showing the nature of the papers, the names of the contesting parties, and the branch of the Legislature before which the contest is to be tried. SEC. 9. The Secretary of State shall deliver the same, un- se:. State shal' opened, to the presiding officer of the House iri which the con- pritig officer of that branch test is to be tried, on or before the second day of the session where contest of the Legislature, next after taking the depositions; and the presiding officer shall immediately give notice that such papers are in his possession. SEC. 10. Nothing herein contained shall be construed to Therightofncither branch to abridge the right of either branch of the Legislature to grant senhd for witess commissions, to take depositions, or to send for and examine abridged. any witness it may desire to hear on such trial. COUNTY OFFICERS. SEC. 11. The election of any person declared duly elected to For what ca"ses seats of county, any county office, may be contested by any elector of the coun- offlncer may be ty: First, For malconduct, fraud or corruption on the part of the judges of election in any township or of any of the boards of canvassers, or on the part of any member of either of those boards. Second, When the incumbent was not eligible to the office at the time of the election. Third, When the incumbent has been convicted of an infamous crime before the election, and the judgment has not been reversed, annulled, or set aside 508 ELECTIONS. [CH. 89. nor the incumbent pardoned at the time of the election. Fourth, When the incumbent has given or offered any elector or any judge, clerk or canvasser of the election, any bribe or reward, in money, property or thing of value, for the purpose of procuring his election. Fifth, When illegal votes have been received, or legal votes rejected at the polls, sufficient to change the result. Sixth, For any error or mistake in any of the boards of judges or canvassers, in counting or in declaring the result of the election, if the error or mistake would affect the result. Seventh, For any other cause (though not enumerated above) which shows that another was the legally elected person. Not unless such SEC. 12. The matter contained in the first, fifth and sixth eauses would hangsethe re causes of contest shall not be held sufficient to set aside the suit. election, unless such causes be found sufficient to change the result. SEC. 13. The court, for the trial of contested county elections, shall be thus constituted: The probate judge shall be the presiding officer, and the contestant and incumbent may each name a person, who shall be associated with him; but when the probate judge is one of the parties, the county or district attorney shall preside. hounty clperke SEC. 14. The county clerk shall be the clerk of this court, records. and shall keep all papers, and record the proceedings in the election book, in the manner similar to [the] record of the proceedings of the district court; but when the person who holds the office of county clerk is one of the parties, the probate judge shall appoint a clerk for the time being, whose appointment shall be recorded. Noticeshall be SEC. 15. The contestant shall file, in the office of the county given within twentydays. clerk, within twenty days after the day when the votes are canvassed, a written statement of his intention to contest the election, setting forth the name of the contestant, and that he is an elector of the county, the name of the incumbent, the office contested, the time of the election, and the particular causes of contest; which statement shall be verified by the affidavit of the contestant, or some elector of the county, that the causes set forth are true, as he verily believes. But before the probate judge, or, in case of his interest, the county attorney, is required to take jurisdiction of the contest, the conBondshallbe testant must file, with such judge or attorney a bond, with security, to be approved by said judge or attorney, and conditioned to pay all costs in case the election is confirmed, or the statement be dismissed, or the prosecution fails. CH, 89.] ELECTIONS. 509 SEc. 16. When the reception of illegal, or the rejection sfams of perV-sons shall be eta. legal votes is alleged as a cause of contest, the names of the tlgad who voed lpersons who so voted or whose votes were rejected, with the township where they voted, or offered to vote, shall be set forth in the statement. SEC. 17. The judge shall then issue a precept, containing aIf parties fail to nominate associ copy of the statement, with a requisition that the incumbentates,thejudge file, in the offce of the county clerk, a written nomination of one of the judges, as provided in section thirteen, within five days after service of the statement upon him; and, if either the contestant or incumbent fail to nominate, the probate judge shall appoint for him. SEC. 18. As soon as the judges are nominated, the probate Probate Judge shall fix a day judge shall fix a day for trial, not more than thirty nor less for trial. than twenty days from the notice contemplated in this section, which notice, addressed to the usual officer of the law, shall contain the names of the contestant and the incumbent, and of the judges named by each party, a brief statement of the causes of the contest, and the day of trial. SEc. 19. The notice shall be served on the incumbent within When notice shall be served. five days, and on the two nominated judges within fifteen days from the day it is issued. SEC. 20. The testimony may be oral or by depositions, and How testimony depositions may be taken on four days' notice, in the same manner, and for the causes, as in an action in the district court. SEC. 21. The probate judge may issue subpoenas for wit- Subpenas for - ~!~ witnesses. nesses, whether interested or not. SEc. 22. The proceedings shall be under the control and di- Court shall control the trial. rection of the court, and the trial may be postponed for good cause shown by affidavit. The terms of:such postponement are in the discretion of the court. SEC.- 23. The style and form of process, the officers by whom Style same as district court.] served, and manner of service of process and papers, and the fees of officers and witnesses, shall be the same as in the district court, so far as the nature of the case admits. The comrnmand to a witness may be to appear at, on, to testify in relation to a contested election, wherein A. B. is contestant and C. D. is irincumbent. SEC. 24. The trial of contested elections shall take place atContestschall take:place at the county seat,'nless adjourned to some other place within county seat the county,:by the concurrence of the court and the parties; and this court shall have all the powers incident to the district 33 510 ELECTIONS. [CH. 89. court, which may be necessary to the right -hearing, conduct and determination of the matter before it. May direct at- SEC. 25. The court may direct the attendance of the sheriff tendance of sheror a constable, when necessary. Witess, if not SEC. 26. It shall be lawful to require any person called as a questioned for witness, who voted at such election, to answer touching his qualifications as a voter; and, if he was not a qualified voter in the township or ward in which he voted, then to require him to answer for whom he voted; and, if the witness answers such questions, no part of his testimony shall be used against him in any criminal action. Judgment ofa SEC. 27. The court shall pronounce judgment, whether the court annuls a certlfcate. incumbent or any other person was duly elected; and the person so declared elected will be entitled to his certificate, upon qualification. If the judgment be against the incumbent, and he has received his certificate, the judgment annuls it. If the court finds that no person was duly elected, the judgment shall be, that the election be set aside. Fees of judges, SEC. 28. The nominated judges shall be entitled to receive two dollars per day, for the time occupied by the trial. Who shall pay SEC. 29. The contestant and the incumbent are liable to the the costs of contest. officers and witnesses for the costs made by them, respectively; but, if the election be confirmed, or the statement dismissed, or the prosecution fail, judgment shall be rendered against the contestant for costs; and, if the judgment be against the incumbent, or the election be set aside, the costs shall be against him. Execution may SEC. 30. The probate judge is authorized to issue execution issue against personal prop. to run against personal property, and a transcript filed and reerty. corded in the office of the district court, as provided in relation to transcripts from justices' courts, shall have the same effect as there provided, and execution may issue thereon against real or personal property. probateijudge. -SEC. 31. The probate judge shall have authority to carry into effect any order of the court after the adjournment thereof, by attachment or otherwise. TOWNSHIP OFFICERS. Contested ele- SEC. 32. Contested elections of township officers shall be tions of township officersshall tried before the county board of canvassers, in the same manbe tried, where. ner as is provided by law for contesting elections of county officers, so:far as the same is practicable. ,CH. 90'.] EQUALIZATION. 511 SEC. 33. The term incumbent, in this act, means the personWh~o s meant by whom the canvassers declare elected. SEc. 34. This act to take effect and be in force from and after its publication. Approved June 3, 1861. CHAPTER XC. (Acts of 1861. Chapter XXXV.) AN ACT to create a State Board of Equalization. Be it enacted by the.Legislature of the State of Kansas: SECTION 1. There shall be, and is hereby created, a State Board of equalization created. Board of Equalization, for the purpose of equalizing the amount of tax to be raised in this State, in each year, for State purposes, among the respective counties of this State. SEc. 2. Said board shall consist of 1the following officers, to- Whoshall constitute said wit: Secretary of State, Treasurer and Auditor of State, who board. shall assemble at the seat of government of this State, on the second Monday of September, annually, in each year, for the purpose mentioned in the last preceding section of this act. SEC. 3. They shall make, from the returns of the county Dutis of the board. clerk of each county, an abstract of the total amount of real Shall mak abestate in each county, the aggregate value of the same, and the atmount of propaverage value per acre of the same; also, the amount of personal property in each county, also, the value of all the real estate lying in all cities or villages in each county, the number of lots, and the average value per lot. SEC... 4. The said board shall ascertain whether the valuation The board shall see that the valof real estate in each county bears a just relation or proportion uation of real esrate bears the to the valuation in all the counties of the State; and, on such same proportion in each county. examination, they may increase or diminish the aggregate val- May increase or uation of real estate in any county, so much per centum as, in diminish the aggregate yaluetheir opinion, may be necessary to produce a just relationti~n between all the valuations of real estate in: the State; but, in no instance, shall they reduce the aggregate valuation of all the Shall not reduce....... the aggregate counties below the aggregate valuation as returned by the clerks valuation below........ that returned by of the several counties. the clerls. SEC. 5. The said board shall apportion the amount of State Shall apportion the amount of tax required: by law to be raised in the State among the several state tax. counties therein, in proportion to the valuation of the taxable property therein, for the year, as equalized by the said board. 512 EXECUTORS AND ADMINISTRATORS. [CH. 91. Shall make outif SEC. 6. The Secretary of State shall, immediately after such two certificates of the amounts apportionment, make out two certificates of the several amounts shall deliver one ascertained to be assessed upon the taxable property of each totheStatetreas- po rt th other tod county, for State purposes, and attest the same under his hand county clerk. and seal, one of which he shall deliver to the State Treasurer, and shall cause the other to be transmitted immediately to the county clerks of the several counties of the State; and the State Treasurer shall charge the amount of State taxes in each certificate, to the proper county. hen to take ef- SEC. 7. This act to take effect and be in force froln and after fect. its publication. Approved June 3, 1861. CHAPTER XCI.,(Acts of 1859. Chapter II.) AN ACT respecting Executors and Administrators, of their appointment and removal from office. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Letters testa- SECTION 1. The probate courts, and the clerks thereof in mentary and of administration, vacation, shall grant letters testamentary and of administration. ehom grand. t. SEC. 2. Letters testamentary, and of administration, shall be Whers letter granted in the county in which the mansion house or place of abode are to be granted. of the deceased is situated. If he had no mansion house or place of abode at the time of his death, and be possessed of lands, letters shall be granted in the county in:which the land, or a part thereof, lies. If the deceased had no mansion house or place of abode, and was not possessed of lands, letters may be granted in the county in which he died, or where the greater part of his estate may be.:If he died out of the Territory, having no mansion house, place of abode, or lands in this Territory, such letters may be granted in any county. trusted to pro-.e" SEC.:3. All orders, settlements, trials and other proceedings, bate court, where to be had. entrusted by this act to the probate court, shall be had or made in the county in which the letters testamentary, or of administration, were granted. aWh executortbe SEC. 4. No judge or clerk of any probate court, in his own administrator. county, or his deputy, and no person under twenty-one years of age, or of unsound mind, shall be executor or administrator; no married woman shall be executrix or administratrix, nor shall the executor of an executor,- in consequence thereof, be executor of the first testator. CH. 91.] EXECUTORS AND ADMINISTRATORS. 513 SEC. 5. Letters of administration shall be granted, first, to who entitled to the husband or wife, or to those who are entitled to distributionnext of kin. of the estate, or one or more of them, as the court, or clerk in vacation, shall believe will best manage and improve the estate. SEC. 6. If no such persons apply for such letters within sixty When letters may be granted days after the death of the deceased, letters may be granted to tootheripersonso any person whom the court, or clerk in vacation, shall consider most suitable. SEC. 7. The probate court, or clerk thereof in vacation, on citation peray be application of any person interested, may issue a citation to the ntitled; failure persons entitled to administration, calling on them to administer, a renunciation. and if they fail to take out letters within thirty days after the service of the citation, or if the persons entitled to preference, file their renunciation thereof, in writing, with the clerk of -the probate court, letters of administration shall be granted to the person next entitled thereto. SEC. 8. After probate of any will, letters testamentary shall Letters to ad. ministrators, be granted to the persons therein appointed executors. If a with willaxpart of the persons thus appointed refuse to act, or be disqualified, the letters shall be granted to the other persons appointed therein. If all such persons refuse to act, or be disqualified, letters of administration shall be granted to the person to whom administration would have been granted if there had been no will. SEc. 9. When there are two or more persons named co-exec- Executors, none to act except utors in any will, none shall have authority to act as such, or those who give bond. intermeddle, except those who give bond, unless otherwise provided in the will. SEc. 10. If the validity of a will be contested, or the exec- Letters of ad-' ministration to utor be a minor, or absent from the Territory, letters of admin- be grantedendents lite, &c., istration shall be granted during the time of such contest,incertain cases minority or absence, to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for, and pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act. SEC. 11. Every applicant for letters of administration at the Applicants for letters to make time of application, shall make an affidavit, stating, to the best affidavitof names and resiof his knowledge and belief, the names and places of residence dence of heirs, of the heirs of the deceased, and that the deceased died without a will, as he verily believes. SEC. 12. At the time that letters of administration are granted 514 EXECUTORS AND ADMr TRSTRATORS. [CL. 9I Administrators the administrator shall take, and subscribe an oath, that he will scribe an oath. make a true and perfect inventory of, and faithfully administer all the estate of the deceased, and pay the debts as far as the assets will extend, and account for and pay all assets which shall come to his possession or knowledge, according to law. Administrator SEC. 13. A similar oath, with such variations as the case de bonis non, pendente lite, may require, shall be taken by administrators of the goods &c., to take similar oath. remaining unadministered, and by administrators during the time of a contest about a will, or the minority or absence of an executor. ath ofadithnthe SEC. 14. Every administrator, with the will annexed, and will anneed. executor at the time letters are granted to him, shall take an oath that he will make a perfect inventory of the estate, and faithfully execute the last will of the testator, pay the debts and legacies as far as the assets will extend, render just accounts and faithfully perform all things required by law touching such executorship or administration. Bond of the ad- SEC. 15. The probate court, or the clerk thereof in vacation, ministrator. shall take a bond of the person to whom letters of administration are granted, with two or more sufficient securities, residents in the county, to the Territory of Kansas, in such amount as the court or clerk shall deem sufficient, not less than double the amount of the estate. Condition of the SEC. 16. The condition of such bond shall be as follows: bond. "' The condition of the above bond is, that if A. B., administrator of the estate of W. C., deceased, shall faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction, then the above bond to be void, otherwise to remain in full force." Bondofexecutor SEC. 17. A similar bond, with such variations as the case or administrator withdthe will -say require, shall be given by all executors (unless otherwise provided in the will) and administrators, with the will annexed, or of the goods remaining unadministered, and all administrators during the time of a contest about a will, or of the minority or absence of an executor. kWhoshallnotae SEC. 18. NO judge of probate, and no sheriff, clerk of a ty in bond of ex court, or deputy of either, and no attorney at law shall be taken ecutor or admin- e a istrator. aS security in any bond required to be taken by this act. Who shall beta- SEC. 19. The probate court, or clerk in vacation, shall take ken as security. special care to take as securities men who are solvent and suffi CH. 91.] EXECUTORS AND ADMINISTRATORS. 515 cient, and who are not bound in too many other bonds, and, to satisfy themselves, they may take testimony, or examine, on oath, the applicant, or persons offered as his securities, which testimony and oath shall be filed with or endorsed on the bond. SEC. 20. The clerk of the probate court shall record, in a well Bond to be re- corded, originals bound book kept for that purpose, all bonds given by executors filed; taken in vacation, preand administrators, and preserve the originals in regular files. sented to court. SEC. 21. All letters testamentary, and of administration, Letters to be recorded before deshall be recorded by the clerk of the probate court, in a well livered. bound book kept for that purpose, before they are delivered to the executor or administrator, and the clerk shall certify on the letters that they have; been recorded. SEc. 22. If any clerk deliver such letters without recording Penalty on clerk for failing to rethe same, he may be fined by the court, and shall forfeit to the cord letters before delivery. party injured double the damages occasioned by such default. SEc. 23. Copies of such letters, and copies of the record Clttferted copries oetterd and -re thereof, certified under the seal of the probate court, shall berd thereof to evidence. SEC. 24. All letters testamentary, issued to executors under Form of letters testamentary. the provisions of this act, may be in the following form: " County of, ss: The Territory of Kansas to all persons to whom these presents shall come, greeting: Know ye, that the last will and testament of A. B., deceased, hath, in due form of law been exhibited,proved and recorded, in the office of the clerk of the probate court, for county, a copy of which is hereunto annexed-; and inasmuch as it appears that C. D. has been appointed executor in, and by the said last will and testament, to execute the same, and to the end that the property of the testator may be preserved for those who shall appear to have a legal right or interest therein, and that the said last will bmay be executed according to the request of the testator, we do thereby authorize him, the said C. D., as such executor, to collect and secure, all and singular, the goods and chattels, rights and credits, which were of the said A. B. at the time of his death, in whosoever hands or possession the same may be found, and to- perform and fulfil all such duties as may be enjoined upon him by said will, so far as there shall be property, and in general to do and perform all other acts which are now or hereafter may be required of him by law. In testimony whereof, I, G. P., clerk of the probate court, in and for said county of —-, have hereunto signed my name, and affixed the seal of said court, this - day of -, A. D.,: 18-. G. P. clerk." 516 EXECUTORS AND ADMINISTRATORS. [CIIH. 91. Form of lettera SEC. 25. Letters of administration hereafter to be issued in tion. this Territory, may be in the following form: "County of.-.., ss: The Territory of Kansas to all persons to whom these presents shall come, greeting: Know ye, that whereas, A. B., late of the county of-, died intestate, as it is said, having, at the time of his death, property in this Territory which may be lost, destroyed or diminished in value, if speedy care be not taken of the same; to the end, therefore, that said property may be collected, preserved and disposed of according to law, we do hereby appoint C. D., administrator of all and singular, the goods and chattels, rights and credits, which were of the said A. B. at the time of his death, with full power and authority to secure and dispose of said property according to law, and collect all moneys due said deceased, and in general to do and perform all other acts and things which are or hereafter may be required of him by law. In testimony whereof, I, G. P., clerk of the probate court in and for the county of -, aforesaid, have hereunto signed my name, and affixed the seal of said court, this day of —, A. D., 18- G. P., clerk." Allletters testa- SEC. 26. In all cases where letters of administration, with mentary and of administration the will annexed, letters of administration de bonis non, to be issued in theabove forms. during minority or absence, shall hereafter be issued by the probate court, or the clerk thereof in vacation, the same shall be issued in conformity to the foregoing forms as near as may be, taking care to make the necessary variations, additions or omissions, to suit each particular case. Letters revoked SEC. 27. If, after letters of administration granted, a will on production of will. of the deceased be found and probate thereof granted, the letters shall be revoked, and letters testamentary or of administration, with the will annexed, shall be granted.,ettsfrillsidevoed SEC. 28. If a will be proved and letters thereon granted, ther letters and the will be afterwards set aside, the letters shall be revoked and other letters granted of the goods unadministered. soale, greoffem SEC. 29. If any executrix or administratrix marry, her husof hrletters. band shall not thereby acquire any interest in the effects of her testator or intestate, nor shall the administration thereby devolve upon him, but the marriage shall extinguish her powers and her letters be revoked. For what causes SEC. 30. If any executor or administrator become of unand how letters may be revoked. sound mind, or be convicted of any felony or other infamous crime, or become a habitual drunkard, or otherwise incapable CH. 91.] EXECUTORS AND ADMINISTRATORS. 517 or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate, or act so as to endanger any co-executor or co-administrator, the probate court, upon complaint in writing made by any person interested, supported by affidavit, and due notice given to the person complained of, shall hear the complaint, and if- they find it just, shall revoke the letters granted. SEC. 31. If any heir, legatee, creditor or other person inter- Heir, legatee, creditor or other ested in any estate, file in the probate court an affidavit, stating person, may apply for additionthat the affiant has sufficient cause to believe, and does believe, alsecurity, when that the security in the executor's or administrator's bond has, or is likely to become insolvent, or has died, or has removed from the Territory, or that the principal in such bond, has, or is likely to become insolvent, or is wasting the estate, or that the penalty of any such bond is insufficient, or that such bond has not been taken according to law, and shall have given the principal in such bond at least ten days' notice of the complaint, the court shall examine into the complaint. SEC. 32. If any person bound as security in the executor's Secuaity in bond may apply to be or administrator's bond, file in the probate court an affidavit rleased, when. stating that the affiant has sufficient cause to believe, and does believe, his co-security has died, or has, or is likely to become insolvent, or has removed from the Territory, or that the principal in such bond has, or is likely to become insolvent, or is wasting the estate, and shall have given to the principal in such bond at least ten day's notice of such complaint, the court shall examine into the complaint. SEC. 33. If the probate court find. the complaint mentioned When cout may order another in either of the two preceding sections to be just, it shallbondtobegiven. order another bond and sufficient security to be given. SEC. 34. Such additional bond, when given and approved, New bond to opshall discharge the former securities from any liabilitzy arising ehargIeffofrmer ~~IL-J — W LIVIIsecurities, &c. from any misconduct of the principal, after filing the same, and such former securities shall only be liable for such misconduct as happened prior to the giving of such new bond. SEC. 35. If such person fail to give such additional bond Failure to give new bond deemnand security within ten days after making such order, his let- ed a revocation of letters. ters shall thenceforth be deemed to be revoked, and his authority from that time cease. SEC, 36. It shall be the duty of the probate court, when- Court, when nec ever it shall appear necessary and proper, to order an executor der further yecurity to be given. or administrator to give other and further security, first giving 518 EXECUTORS AND ADMINISTRATORS. [CH. 91. such;executor or administrator at least five days' notice of such intended order, and if such executor or administrator Failure to com- shall fail to give such further security within tell days after ply deemed a revocation, making such order, -his letters shall thenceforth be deemed to be revoked, and his authority from that time cease. Rosignation and SEC. 37. If any executor or administrator publish for four surrender of let- ters, ow miade. weeks, in some newspaper in the county, a notice of his intention to apply to the probate court to resign his letters, and the court, on proof of stch publication, shall believe that he should be permitted to resign, it shall so order. Said publication of notice in the newspaper, upon application to the probate court for that purpose, may be dispensed with, and instead thereof the court may require said administrator to put ten written handbills in ten of the most public places in the county where he is conducting the business of his administration, at least twenty days before the term at which he intends to resign his administration.. TJcttoerslrren- SEC. 38. Such person shall then surrender his letters, his dered, expenses paLd by tppli- power from that time shall cease, and he shall pay the expenses of publication and all the proceedings on the application. oe-tiersof one SEC. 39. If there be more than one executor or adminisrendered, others trator of an estate, and the letters of part of them be revoked to proceed. or surrendered, or a part die, those who remain shall discharge all the duties required by law respecting the estate. Administration SEC. 40. If all the executors or administrators of an estate of goods unadsministeredwhen die or resign, or their letters be revoked, in cases not otherwise to be granted. provided bfor, letters of administration, of the goods remaining unadministered, shall be granted to those to whom administration would have been granted if the original letters had not been obtained, or the person obtaining them had renounced the administration, and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators. administror tor SEC. 41. If any administrator or executor die, resign, or administrator dietteresigre or his letters be revoked, he, or his legal representatives, shall couwot.o account for, pay and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real and personal property of every kind, and all rights, credits, deeds, evidences of debt, and papers of every kind, of the deceased, at such times and in such manner as the court shall order, on final' settlement with such executor or administrator, or his legal representatives. Ca. 91.] EXECUTORS AND ADMINISTRATORS. 519 SEC. 42. The succeeding administrator, or the remaining Who may proexecutor or administrator, may proceed at law against the de- delinquent and his security. linquent and his securities, or either of them, or against any other person possessed of any part of the estate. SEC. 43. If any executor or administrator fail to makeFrailingtomake settlement after either annual or final settlement, as required by law, and do citation, court may revoke letnot show good cause for such failure after citation; the probate ters. court shall order the executor or administrator to give notice when required, and to make such settlement, and may enforce obedience to such order by attachment, or may revoke his letters. SEC. 44. In all cases where citation or attachment may De Delinquent to pay costs of citaissuedl against any executor or administrator for failing to tionor attachsettle his accounts, such delinquent shall pay all costs incurred thereby. SEC. 45. The executor or administrator on the estate of any Executor or administrator of deceased member of a co-partnership shall include in the in- member of copartnership to ventory, which he is required by law to return to the probate make inventory and appraise court, the whole of the partnership estate, goods and chattels, property. rights and credits, appraised at its true value, as in other cases, but the appraisers shall carry out in the footing an amount equal only to the deceased's proportional part of the co-partnership interest. SEC. 46. The property thus appraised shall remain with the Property may be delivered to surexecutor or administrator, or'be delivered over, as the caseiving partner. Such partner to may be, to the surviving partner, who may be disposed to un- [ch,e 60o dertake the management thereof, agreeably to the conditions of a bond, which he shall be required to give to the Territory of Kansas, in such sum, and with such securities as is required in other cases of adminixstration. SEC. 47. The condition of such bond shall be, in substance, Condition of the as follows:'" The condition of the above bond is, that if A.b B., surviving partner of the late firm of, shall use due diligence and fidelity in closing the affairs of the late co-partnership, apply the property thereof towards the payment of the partnership debts, render an account, upon oath, to the probate court, whenever by it thereunto required, of all the partnership affairs, including the property owned by the late firm, and the debts due thereto, as well as what may have been paid by the survivor to wards the partnership debts, and what may still be due and owing therefor, and pay over, within two years, unless a longer time be allowed by the pro 520 EXECUTORS AND ADMINISTRATORS. [CH. 9l1 bate court, to the executor or administrator, the: excess, if any there be beyond satisfying the partnership debts, then the above bond to be void, otherwise to remain in fill force. Authority of SEC. 48. The probate court shall have the same authority probate court over survivor. to cite such survivor to account, and to adjudicate upon such account, as in the case of an ordinary administrator, and the parties interested shall have the like remedies, by means of such bond, for any misconduct or neglect of such survivor, as may be had against administrators. Survivor refus- SEC. 49. In case the surviving partner, having been duly ecustor or adinve cited for that pupose, shall neglect or refuse to give the bond bond and take required in the forty-sixth and forty-seventh sections of this possession of ia y n tatnership es- chapter, the executor or administrator on the estate of such deceased partner, in giving a bond, as provided in the following sections, shall forthwith take the whole partnership estate, goods and chattels, rights and credits, into his own possession, and shall be authorized to use the name of the survivor in collecting the debts due the late firm, if necessary; and shall, with the partnership property, pay the debts due from the late His duties. firm, with as much expedition as possible, and return or pay to the surviving partner his proportion of the excess, if there be any. To give fSurther SEC. 50. Before proceeding to administer upon such partbond; its sonditions. nership property, as provided in the preceding section, such executor or administrator shall be required by the probate court to give further bond, to its satisfaction, conditioned that he will faithfully execute that trust, with no unnecessary waste or expense, which bond may be enforced like other administration bonds. Survivor to ex- SEC. 51. Every surviving partner, on the demand of any hibit, and in certai,ases, tostur-.[executor or] administrator of a deceased partner, shall exship property. hibit to the appraisers, the partnership property belonging to the firm at the time of the death of such deceased partner, for appraisement; and in case the administration thereof shall devolve upon such executor or administrator, the said survivor shall surrender to him, on demand, all the property of such partnership, including their books and papers, and all necessary documents pertaining to the same, and shall afford him all reasonable information and facilities for the execution of his trust. ply, o'ay obe~ SEC. 52. Every surviving partner, who shall neglect or recited, fuse to comply with the provisions of the preceding section, CH. 91.] EXECUTORS AND ADMINISTRATORS. 521 mnay be cited for such neglect or refusal before the probate court, and unless he comply with such provision, or show sufficient excuse for his omission, the probate court may cormit Ponalty. him to the common jail of the county, there to remain until he consent to comply, or is discharged by due course of law. SEC. 53. When two or more persons are appointed execu- Twtors, clerk tors, the court, or clerk in vacation, may take a separate may take sepaohe court, o rate bond from bond with securities from each of them, or a joint bond with each, or joint securities from all of them. SEC. 54. Letters testamentary and of administration shall Letters test- mentary and of in no case be granted to a non-resident of this Territory; and administration not to be granted where an executor: or administrator shall become a. non-resi- to no-residents, dent, the probate court, having jurisdiction of the estate of the testator or intestate of such executor or administrator, shall revoke his letters. Of their Duties Refpecting Money and Pro2erty. SEc. 55. Every executor and administrator, immediately xeelutors and after receiving letters, shall collect and take into possession toak collct df the goods, chattels, money, books, papers and evidences of estate. debt, or of title to any real or personal estate, except the property reserved as the absolute property of the widow. SiE. 56.'He shall make an inventory of all the real andTo make andreturn inventory. personal estate of the deceased, describing the quantity, situation and title of the real estate, also the books and papers, the debts due, or to become due, to the deceased, the names of debtors, the date of the contract, the amount of interest then due thereon, Ithe rate of interest, and such further description as will render it a perfect inventory of the estate.SEc. 57. He shall annex to the inventory an affidavit, stat- Affidavit to be ing that it is a full inventory and description'of all the money, inventory. goods, chattels and estate, real and personal, books,. papers and evidences of debt and of title of the deceased, and of all debts due and becoming due, so far as he can ascertain them, except the property reserved as the absolute property of the widow, and that he was not indebted or bound in any contract to the deceased at the -time of his death, except as stated in the inventory. SEC. 58. The inventory with the affidavit, shall be filed in Inventory and the office of the clerk of the Probate Court within sixty days and where to be after the letters are granted. SEC. 59. If, after making the first inventory, any other real Additional into be made. 522 EXECUTORS AND ADMINISTRATORS. [CI. 91 or personal estate of the deceased come to his possession or knowledge, he shall file a similar additional inventory thereof. Witnesses shall Sc. 60. At the time of appointing an administrator, or of be appointed to accompany ex- granting letters testamentary to an executor, the court, or ecutor or administrator in open- clerk in vacation, shall name two respectable householders of ing and examining effects of de- the vicinity of the last abode of the deceased, who are disinceased, and to aid in aking terested and of no kin to the administrator or executor, as inventory. witnesses to accompany and aid the administrator or executor in opening and examining the papers and money of the deceased, and making an inventory thereof; and if they fail to attend, the court or clerk shall appoint others in their stead, so that two witnesses shall be present to attend the proceeding, before it shall be lawful for any executor or administrator to open or examine such papers or money, by virtue of his appointment. Theircompensa- SEC. 61. The Probate Court shall allow such witness a comtion. pensation for such duties, not exceeding that allowed to appraisers. Toopenano ex- SEC. 62. If any administrator or executor open or examine amine effects of deceased with- the papers or money of the deceased without the publicity and out witnesses, penalty for attestation provided in this act, he shall forfeit and pay, to the persons entitled to the estate, a sum- not exceeding five thousand dollars, to be recovered'before the Probate Court. Affidavitfiled SEC. 63. If the executor or administrator, or other person against persons concealingor, interested in any estate, file an affidavit in the Probate Court, embezzling effects, citation to stating that the affiant has good cause to believe, and does beissue. lieve, that any person has concealed or embezzled any goods, chattels, moneys, books, papers or evidences of debt of the deceased, the Probate Court may cite such person to appear before them, and compel such appearance by attachment, and examine him and other witnesses, on oath, for the discovery of the same. swerefuing tbe SEC. 64. If any such person refuses to answer proper interjail. mtted to rogatories, the court may commit him to jail until he answer or be discharged by due course of law. If party charged SEC. 65. If any person charged and cited as aforesaid shall and cited appear and answer, appear, and, in his answers to the interrogatories, deny the trial to be in a summary man- right of the executor or administrator to such goods, chattels, moneys, books, papers, or evidences of debt, the right thereof shall be tried by a jury, or if neither party require a jury, by the court, in a summary manner, and judgment shall be rendered according to the right, and for costs. CH. 91.] EXECUTORS AND ADMINISTRATORS. 523 SEC. 66. If any person be convicted of unlawfully detain- In"ase of coning such goods, chattels, money or effects, books, papers or' livemryof dffe-ts evidences of debt, the court may compel the deliverv thereof by attachment. SEC. 67. After having collected the personal estate, the ex- Estate to bl appraised, by ecutor or administrator shall cause the same to be appraised whom. by three disinterested householders of the county. SEC. 68, Before entering on their duties, the appraisers shall Affimdavit of appraisers. make an affidavit, stating that they are not interested, nor of kin to any person interested in the estate, as heir or devisee, and that they will to the best of their ability, view and appraise the, personal estate to them produced. SEC. 69. The appraisers shall view and appraise such prop- Duty of appraiserty, and make a list specifying each article appraised, its value, and total amount of the appraisement, which shall be signed by the appraisers, or two of them. SEC. 70. The appraisement and affidavits shall be filed in Appraisement, &c., when and the office of the clerk of the Probate Court, within sixty days where to be filed after letters granted. SEC. 71. Each appraiser shall receive friom the estate one compensationto dollar per day for his attendance. appraisers. SEC. 72. Every executor or administrator shall cause similar Additional appraisemeit, appraisements to be filed of all personal estate, which shallwbhen tobe made come to his possession after the first appraisement. SEC. 73. Inventories and appraisements may be given in evi- Inventories and appraisemeits, dence, but shall not be conclusive for or against any executor phowprr eeidonce. or administrator, but other evidence may be introduced to vary the effect thereof. SEC. 74. Within thirty days after letters are granted, the ex- When and how notice to crediecutorof [or] administrator shall publish, in some newspaper in tor shall bed published. the county, and if there be no newspaper published in the county, then in some newspaper of general circulation in the Territory, and publish therein for three weeks, a notice that letters testamentary, or of administration have been granted to him, stating the date and requiring all persons having claims against the estate, to exhibit them fobr allowance to the executor or administrator within one year after the date of the letters, or they may be precluded from any benefit of such estate; and that if such claims be not exhibited within three years from the date of the letters, they shall be forever debarred. SEC. 75. When an intestate has left no known heirs, the ad 524 EXECUTORS AND ADMINISTRATORS, [COH. 91. Whenand how ministrator shall also publish a notice for six weeks in some to advertise whe~n there hra newspaper, containing the name of the intestate, a description no known heirs. of his person, the time and place of his death, the place of his nativity, if known, and the appraised amount of his estate. Administrator SEC. 76. Executors and administrators shall collect all may collect ceipts, andv pr- money and debts of every kind due to the deceased, and give ecute and defendreceipts and discharges thereof, and shall commence and prosactions. ecute all actions which may be maintained and are necessary in the course of his administration, and defend all such as are brought against him. What acitons ex- SEC. 77. They shall prosecute and defend all actions comecutors, &c., may prosecnte and menced by or against the deceased, at the time of his death, defend. and which may have beeni prosecuted or maintained by or against such executor or administrator. What actions SEC. 78. For all wrongs done to the property, rights or inmay be maintained by and terests of another, for which an action might be maintained against executoraland admin against the wrong doer, such action may be brought by the person injured, or, after his death, by his executor or administrator against such wrong doer, and after his death, against his executors or administrators, in the same manner and with the like effect, in all respects as actions founded upon contracts. Not to extend to SEC. 79. The preceding section shall not extend to actions certain cases. for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. Debts due by ex- SEC. 80. All debts due by an administrator to his testator or ecutors, &c., to be assets. intestate, shall be considered as assets in his hands. Debtor appoint- SEC. 81. If any person appoint his debtor executor of his ed executor, his debt consideredwill, such appointment shall not discharge the debt, but it assets. shall be assets in his hands. Articles allowed SEC. 82. In addition to her portion of her deceased husband's widow in additionto dower, estate, the widow shall be allowed to keep absolutely, for the use of herself and family, all the wearing apparel of the family, her wheels, looms and other implements of industry; all yarn, cloth and clothing made up in the family for their own use; all grain, meat, vegetables, groceries, and other provisions on hanQrl, and provided and necessary for the subsistence of the widow and her family for twelve months, and as many beds, with bedding, as shall be necessary for herself and the family of the deceased residing with her, and under her con OH. 91.] EXECUTORS AND ADMINISTRATORS. 525 trol, of which an inventory shall be made by the executor or administrator, and filed in the Probate Court. SEc. 83. The widow shall apply for such property named in To be deducted from her dower the preceding section, before the same be distributed or sold, in personalit, and the property so delivered shall in no case be liable for the debts. payment of the debts of the deceased. SEC. 84. Every executor or administrator, after the apprais Sale of perishable property, ment, shall sell at public sale all goods and chattels of the de- how to be made. ceased that are liable to perish, be consumed or rendered worse by the keeping, except such as -are reserved by the widow, giving such credit as he may think best, and take bonds or notes with good security, of the purchaser. SEc. 85. If the perishable goods be not sufficient to pay the If inlfflment o pay debts, other debts, the executor or administrator shall, in the same man- personality tobo sold. ner, sell other personal estate, until the debts and legacies be ll paid; but specific legacies shall not be sold in any case, unless it be necessary for the payment of the debts. SEc. 86. Executors and administrators may assign the notes Bonds and notes may be assigned and bonds of the estate to creditors, legatees and distributees, to creditors, legatees and disin discharge of such an amount of their claims equal to the tributees. amount of such bond or note. SEC. 87. They shall give notice of the time and place of Notice of sale, how and when sale, for three weeks, in some newspaper in the county, or by given. handbills, put up in eight public places in the county where the sale is made. SEC. 88. If any testator directs his estate not to be sold, the Estate of testa. tor, when not to same shall be reserved, unless such sale be necessary for the be sold. payment of debts. SEC. 89. When there are no known heirs or legal represen- All the personal estate to be sold tatives, the administrator shall sell all the personal estate Of when there are no known heirs. the (leceased, within one year after administration is granted. SEC. 90. If any executor or administrator apply to the Pro- Personal estate bate Court for permission to sell the personal estate of the de- pate sale, when. ceased, or any part thereof, at private sale, and the court be satisfied that such sale would not be prejudicial to the persons interested in the estate, it may order such sale and prescribe the terms thereof. SEC. 91. In every public sale, the executor or administrator clerk to be emshall employ a competent clerk, not interested nor of kin to sale.at bl, any heir or devisee of the estate. SEC. 92. Such clerk shall keep a true account of the salemi dutie, made, make a list of sales, specifying each article sold, the 34 526 EXECUTORS AND ADMINISTRATORS. [Cn. 91. price and the name of the purchaser, and shall annex his affidavit to such list, stating that the same is a true account of the sales made by such executor or administrator, at the time specified. Sale bill, when SEC. 93. Such sale bill shall be filed by the executor or add wh d. ministrator, in the office of clerk of the Probate Court, within thirty days after the sale, and it shall be evidenced in the same manner and with like effect as inventories. Real estate leas- SEC. 94. Executors and administrators, under the direction ed by order of court. of the Probate Court, shall lease the real estate for any term not more than three years, and shall receive and recover the rents. Rlepairs on real SEC. 95. When any house, out building, fence or other imestate made by order of court. provements on the real estate require repairs, the Probate Court may, on the application of any person interested, order the executor or administrator to cause the necessary repairs to be made without prejudicing creditors. Inventories,&c, SEC. 96. At every term. the Probate Court shall examine filed; when to be examined by all inventories, appraisements and sale bills filed since the last probate court, term, to see if they have been made and filed according to law, and shall issue citations to compel all delinquents to comply with the law. Assistance in SEC. 97. If a person die, leaving horses or other stock that taking care of estate, when to require attention, crops ungathered, property so exposed as to be procured. be in danger of loss in value, or work in an unfinished state, so that the estate would suffer material loss from the want of care and additional labor, the executor or administrator may, until the meeting of the Probate Court, procure such indispensable labor to be performed on the most reasonable terms. Furtherassist- SEC. 98. The Probate Court, on the application of any perance when auheze, ow e son interested, may in such cases authorize further labor to be paid. performed, as the interest of the estate require, and all sums thus paid, if approved by the court, shall be allowed as expeuses of administration. Interest on SEC. 99. All interest received by executors or administradebts, when assets; whentobetors on debts due to the deceased, shall be assets in their paid by executor oradministrator hands, and if they lend the money of the deceased, or use it for their private purposes, they shall pay interest thereon to the estate. To be accounted SEC. 100. The probate court shall exercise an equitable for under the equitable col- control in making executors and administrators account for trol of the court. m - - interest accruing to the estate on account of money loaned CH. 91.] EXECUTORS AND ADMINISTRATORS. 527 by them belonging to the estate or otherwise, and for that purpose may take testimony, or examine the executor or administrator on oath. SEC. 101. Every executor or administrator, at the secondStatement on oath of money term after. the one at which he is required to make settleent, on hand, when to be made. shall render to the probate court a statement, on oath, of the amount of money of the estate actually on hand. SEC. 102. If, on the return of the inventory, or at any Disposition of money on hand, other time, it shall appear to the satisfaction of the probate whnd and how court, that there is a surplus of money in the hands of the executor or administrator, that will not be shortly required for the expenses of administration, or-payment of debts, it shall have discretionary power to order him to lend out the money on such terms, and for such time, as may be deemed best. SEC. 103. The probate court may at any time make such Orders for collection, sale and orders as the interest of the estate may require, for the speedy distribution, collection of debts, or the sale or distribution of personal property. SEC. 104. All executors and administrators may give re- Edxeciutrorsnd ceipts and discharges for money received by them on accountay gie r yvlLy ~~N~~~~lhv L~~~~lurvs. lruv nV~rrM J ~IVLL P~ceipts and disof the deceased; but if there be more than one executor oharges, efect administrator, a majority shall join in such receipt or discharge, or they shall be void. SEC. 105 If personal property shall be bound by the lien Ifoproperty, bound by lien of of an execution or executions, whether such execution or exe- execution, duty of executor or cutions shall have been levied or not at the time of the death administratorto of the testator or intestate, the executor or administrator shall, nevertheless, inventory, cause to be appraised, and sell the same as if no such lien existed, except that a separate inventory, appraisement, and sale bill of such property shall be made and returned. SEC. 106. The proceeds of the sale of such personal property How the proceeds of such shall be applied, under the direction of the probate court, in saledshall be apthe following manner: First, When there is but one execution, to the payment of such execution, and the residue, if any, shall be assets, to be administered according to law. Second, When there is more than one execution, the liens whereof are of even date, to the payment of such executions, and the residue, if any, shall be assets, to be administered according to law; but if such proceeds shall not be sufficient to pay the whole, then in proportion to their respective amounts. Third, 528 EXECUTORS AND ADMINISTRATORS. [0C. 91. When there is more than one execution, the liens whereof' are of uneven dates, and such proceeds shall not be sufficient to pay the whole, to the payment thereof according to their priority of lien. Preceding prce SEC. 107. The provisions of the two preceding sections Visions not to extend to cer- shall not be construed to deprive the widow of the benefit of tain cases. the eighty-third section of this chapter, nor to deprive the demands classed in. the first and second subdivisions of the one hundred and forty-third section of this chapter, of their precedence over all other demands against the estate of the deceased. ncoertain cases. SEC. 108. In all cases where any person shall die,, leaving only a certain portion of per- a widow or other family, the probate court has power, if in sonalestate to be sold. its opinion it will not be prejudicial to creditors, and will be advantageous to such widow or others entitled to distribution ii' the estate, to order that no more of the personal estate shall be sold than will be sufficient to pay the debts: Provided, the probate court shall take good and snfficient security that the property shall be forthcoming to answer the demand of any creditor or others concerned in the estate. Appralsement. SEc. 109. In the cases specified in the preceding section, guch property to be oleoft intpos- the executor or administrator shall maoke an inventory and SiOn of the widow or family, appraisement of the estate as in other cases; but he shall leave such personal property as is ordered not to be sold in possession of the widow or other fiamily, who shall use and enjoy the same until the probate court shall order sucth property to be administered. uspension of SEC. 110. If property is about to.be sold in the vacation of sales of such property may be the probate court, any judge of such probate court has power, ordered in vacation of court. upon the petition of the executor or administrator, or of any other person interested in the estate, to order the suspension of such sale until the next term of the probate court. In caseofinjury SEC. 111. In any case where the court has ordered that or waste to such property, the property shall not be sold, if it shall appear to thei probate court may resolndsuchorder. court that such property is likely to be injured or wasted, or that those interested therein would be benefitted thereby, such court shall order that such estate be forthwith administered; and, in such cases, the rights of all persons interested shall be the same as if the order, provided for in the one hundred and ninth section of this chapter, had not been made. court may con- SEC. 112. For good cause shown, the probate court may Uinue proceedings before them continue any matter or proceeding arising before it under this for good cause. act, on such terms as it may consider just. 'CH. 91.] EXECUTORS AND ADMINISTRATORS. 529 Of their Duties respecting the Sale of Real Estate. SEC. 113. The sale and conveyance of real estate under a Powerbywillto sell lands to be will shall be made by the acting executor or administrator, executed by with the will annexed, if no other person be appointed for that purpose by the will, or if such person fail to perform the trust, SEc. 1144. If any person die, having purchased real estate, Contracts for the and shall not have completed the payment, nor devised such lands. estate, nor provided for the payment by will, and the completion of such payment would be beneficial to the estate, and not injurious to creditors, the executor or administrator, by order of the probate court, may complete such payment out of the assets in his hands, and such estate shall be disposed of as other real estate. SEC. 115. If the court believe that, after the payment ofInterestoftesttdebts, there will not be sufficient to pay for such real estate, to be sold if assets are not sufthe court may order the executor or administrator to sell all ficient to fill the contract. the right, title, and interest of the deceased therein. SEC. 116. If such real estate has been purchased from indi- Court may order lands to be reliuviduals, the court may, if they believe it advantageous to the qushed if purestate, order the same to be relinquished to such individual on divid'als. the most advantageous terms that can be agreed upon. SEC. 117. If such real estate shall have been purchased If purchased from officer anfrom any officer authorized by law to sell school lands, the thorizedatoe so probate court may, in its discretion, order the same to be may berelinquished in tke relinquishedl; and, in such cases, the officer shall be authorized discretion of the court. to accept of such relinquishment, and surrender the obligation of the deceased. SEC. 118. If any person die, having mortgaged any real Courtmayorder'Zn~' ~~the redemption estate, or mortgaged or pledged any personal property, or ofnortgaged owning any equity of redemption, and shall not have devised the same, or provided for the redemption of the same by will, the probate court, upon the application of any person interested, may order the executor or administrator to redeemu such estate out of the personal assets, if it would be beneficial to the estate, and not injurious to the creditors. SEC. 119. If such redemption would injure the estate or Courtmayorder the equity of recreditors, or there would not be assets to redeem such estate demption to be sold. after the payment of debts, the court shall order all the right, title, and interest of the estate to such property to be sold at public sale. 580 EXECUTORS AND ADMINISTRATORS. [CIH. 9 1 Inquicasesofhen SEC. 120. In cases of relinquishment of the interest of the executor or ad- testator or intestate, under the provisions of the one hundred ministrator competent to make a deed, ef- and seventeenth and one hundred and eighteenth sections of feet thereof. this chapter, and in all cases of the sale of the interest of the testator or intestate, under the one hundred and sixteenth and one hundred and twentieth sections of this chapter, the executor or administrator shall be competent, by deed, to make such relinquishment, or to convey to the purchaser all the right, title, and interest the testator or intestate had in and to such real estate at the time of his death. If personal es- SEC. 121. If any person die, and not have personal estate tate insufficient to pay debts, pe- subfficient to pay his debts,. the executor or administrator shall tition to sell real estatet~befiledfile a petition to the probate court, stating the facts, and praying for the sale of the real estate, or so much thereof as will pay the debts. If real estate SEC. 122. If such real estate be bound by the lien of a bound by lien of judgment, to be judgment, the executor or administrator shall state that fact in stated in petition. his petition, the date and amount of the judgment, and tile name of the person in whose favor the same was rendered. Proceeds of sale SEC. 123. Tihe proceeds of the sale of such real estate shall to be applied to paYment of suchbe first applied to the payment of such judgment, and the judgment; re- t maindertosbe- residue, if any, shall become assets in the hands of the executor or administrator, to be administered according to law. If real estate SEC. 124. If such real estate be bound by the lien of bound by lien of several judg- several judgments, the executor or administrator shall state ments, to be stated in petition. that fact in his petition, the dates and amounts of such judgments, and the names of the persons in whose favor the same were rendered. Proceeds of such SEC. 125. The proceeds of the sale of such real estate shall sale to be applied to the payment be first applied to the payment of such judgments according of such judgments. to their priority of lien. ltesidue of pro- SEC. 126. The residue of such proceeds, if any, shall beceeds to become asset. come assets in the hands of the executor or administrator, to be administered according to law. judgmen of such SEC. 127. If the lien of such several judgments be of even even, procee,ds date, and the proceeds of such sale shall not be sufficient to how applied) d pay the whole, such proceeds shall be applied to the payment of such several judgments, in proportion to their respective amounts. ~?titionto be SEC. 128, The petition to be filed, according to the pro-.ecompanied by visions of the one hundred and twenty-first section of this Cai. 91.1 EXECUTORS AND ADMINISTRATORS. 531 chapter, shall be accompanied by a true account of his admin- tre accoulntof administration, istration, a list of debts due to and by the deceased, and&"o remaining unpaid, and an inventory of the real estate, and of the remaining personal estate, with its appraised value, and all the other assets in his hands, the whole to be verified by the affidavit of the executor or administrator. SlEC. 129. If such executor or administrator do not makeExecnutoror administrator failsuch application, any creditor or other person interested in ing to make such the estate may make such application, giving twenty days'.ersmay notice to the executor or administrator. SEC. 130. Every such executor or administrator, on or Duty ofexecutor before makbefore the first day of the term of the court at which he is ing such application. notified that such application will be made, shall file with the clerk of the court perfect accounts, lists, and inventories, made out and verified as those required to accompany a petition by himself. If such executor or administrator fail to. comply with this section, the court shall compel him to do so by attachment. SEC. 131. When such petition, and such accounts, lists, When such petition, accounts, and inventories shall be filed, the court shall order that all&c.,trefilled, court shall order persons interested in the estate be notified thereof, and that, notice to be givunless the contrary be shown, on the first day of the next term of the court, an order will be made for the sale of the whole, or so much of such real estate as will pay the debts of the deceased. Such notice shall be published for six weeks, When and how — N~~~ A UL I r*I published. in some newspaper in the county, or by ten handbills, to be put at ten public places in the county in which the land lies, at least twenty days before the term of the court at which any such order will be made, in the discretion of the probate court. SEC. 132. Upon proof of publication, the court shall hear Uppon proof of publiction, the testimony, and may, if necessary, examine all parties on court to hear testimony, and oath touchineg the application, and make an order for the sale if necessary order sale. of such real estate, or any part thereof, in this Territory, at public or private sale. SEC..133. If any executor or administrator, oJr other person Personal estate may be reserved interested in any estate, file a petition, setting forth the facts, nd real estate and describing the real and personal estate, and praying that the personal estate may be reserved, and real estate be sold for the payment of debts, the same steps shall be taken, and the same proceedings and publication had as above directed, upon a petition to sell real estate for the payment of debts, 532 EXECUTORS AND ADMINISTRATORS. [Cui. 91. and the court may order the whole or any part of the personal estate to be reserved; and the real estate, or any part of it, may be sold at public or private sale. teal estate to be SEC. 134. Before any executor or administrator shall sell appraised before,ale. any real estate, or any interest therein, by order of allny court, he shall have it appraised by three disinterested householders of the county in which it lies. Affidavit to be SEC. 135. Such appraisers shall make an affidavit that they made by appraeisers. a will, according to the best of their abilities, view and appraise the estate to them shown, and they shall view and appraise the same, and deliver to the executor or administrator a certificate thereof, under their hands. lotice of such- SEC. 136. In all sales of ireal estate made by any executor or ale of real estate to be given. administrator, he shall cause a notice, containing a particular description of the estate to be sold, and stating the time, place and terms of sale, to be published in some newspaper in the county for four weeks, and shall put up a copy of such notice in ten public places in the county in which the sale is to be made, twenty days before the sale. If the probate court shall think it advisable, and so order, the publication of such notices in the newspaper may be dispensed with. Where sales of SEC. 137. All public sales of real estate, made by order of real estate shall be made, and any court for the payment of debts, shall be made at the court how conducted. house door of the county in which such estate is situated, and shall be conducted openly by auction. private sale at SEC. 138. No real estate, sold for the payment of debts, shall essrthsn thrsee, be sold at private sale for less than three-fourths of its appraisehdallal eu- praised value, nor shall the executor or administrator, directly tor or administrator purchase. or indirectly, become the purchaser of such real estate. Report of sale, SEC. 139. At the next term of the probate court after such how made. sale, the executor or administrator shall make a full report of his proceedings, with the certificate of appraisement and a copy of the advertisement, which report shall be verified by affidavit, stating that he did not, directly or indirectly, purchase such real estate, or any part thereof, or any interest therein, and that he is not interested in the property sold, except as stated in the report. 3gport notap- SEC. 140. If such report and proceedings of the executor or proved, new ordertobemade. administrator be not approved by the court, his proceedings shall be void, and the court may order a new sale, upon which the same proceedings shall be had as upon the original order. Ded tobemade. SEC. 141. If such report be approved by the probate court, OC. 91.] EXECUTORS AND ADMINISTRATORS. 533 such sale shall be valid, and the executor or administrator sha execute, acknowledge and deliver to the purchaser, a deed reciting the order of sale, and the court by which it was made, the certificate of appraisement, the advertisement, the time and place of sale, the report of the proceedings, and the consideration, and conveying to the purchaser all: the right, title and interest which the deceased had in the same. SEC. 142. Such deed shall convey to the purchaser all the ffec. of deed. right, title and interest which the deceased had in such real estate at the time of his death, discharged from liability for his debts, and shall be evidence of the facts therein recited. SEC. 143. If any testator or intestate shall have entered into Contract for conveyance of a contract, in writing, for the conveyance of any real estate, real estate, how enforced. and shall not have executed the same in his lifetime, nor given power, by will, to execute the same, the other party, wishing a specific execution of -such contract, may file a petition to the probate court, setting forth the facts, and praying that an order may be made that the executor or administrator execute such contract specifically by executing to him a deed for the same. SEC. 144. Such petitioner shall annex to his petition an affi- Affdavit annexdavit to the truth thereof, and stating that no part of such con-to petition. tract has been satisfied, except as stated iu-lthe petition. -SEC. 145. A notice of such application, and a copy of the Notice served on executor. petition, shall be served on the executor or administrator twenty days before the first day of the term at which it is to be made. SEC. 146. If the court, after hearing all parties, believe that Court to order specific performspecific execution of such contract ought to be made, it shallanceofcontra.t, make an order that the executor or administrator execute such &. contract specifically, saving to infants, married women, persons of unsound mind, and persons absent from the United States, the term of five years after their disabilities are removed, to appear and file their bill in chancery, to set aside such order for fraud or otherwise. SEC. 147. When any order for the specific execution of a Upon sulchorder executor to execontract shall be made, the executor or administrator shall ex- cute deed. ecute and deliver to the petitioner a deed, and acknowledge it in open court, conveying the estate according to the order, and expressing therein the saving of the rights above named, according to the order, and stating the date of the order, and the court at which it was made. 534 EXECUTORS AND ADMINISTRATORS. [CII. 91 Effect of such SEC. 148. Such deed shall be as effectual as if it had been deed. executed by the deceased. Proeedtings b&y f SEC. 149. If any executor or administrator hold a bond, or iprecific perform- any other instrument of writing, on the testator or intestate, for the conveyance of any real estate, which shall not have been completed within the lifetime of such testator or intestate, nor power by will given to execute the same, the executor or' administrator shall proceed against his co-executor or coadministrator in the same manner as prescribed by this article, in other cases; but if there be no such co-executor or co-administrator, he shall file his petition as herein provided, and the court shall appoint some suitable person to appear. and manage the defence on the part of those jilnto stei, wh0o shall have all the powers and perfrm thes ame duties required of executors or..a mrist'raOlrs, inl such case, by this article. "'llestetoto'" e' SEc. 150. If, upon the settlement of the accounts of any executor or administrator, it appear that the personal estate is not sufficient to satisfy all demands established against such estate, the probate court may make such order as it may think necessary for the sale of the real estate for that purpose, and the sale shall be conducted, and the same proceedings had in relation thereto, as is provided in this chapter in relation to the sale of real estate, ifa the payment of debts upon the petition of the executor or administrator, creditor or other person interested. Of the allowance of Demands against Estates. Deandsagainst SEC. 151. All derands against the estate of any deceased estates classed. person shall be divided into the following classes: First, Funeral expenses. Second, Expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased. Third, Debts due the Territory. Fourth, Judgments rendered against the deceased in his lifetime; but if any such judgments shall be liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments, as are liens upon the real estate, shall be paid as provided in this chapter, without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section, shall have precedence of such judgments. Fifth, All demands, without regard to quality, which shall be legally exhibited against the estate within one year after the granting of the first letters on the CH. 91.] EXECUTORS AND ADMINISTRATORS. 535 estate. Sixth, All demands thus exhibited, after the end of one year and within two years after letters granted. Seventh, All demands thus exhibited, after the expiration of two years and within three years after granting of such letters. SEC. 152. All demands, not thus exhibited within three Afterthree years, demands years, shall be forever barred, saving to infants, persons of un- barred, &c. sound mind, imprisoned or absent from the United States, three years after the removal of their disabilities. SEC. 1]53. All actions pending against any person at the Suits against deceased persons, time of his death, which, by law, survive against the executor whenand how classed. or administrator, shall be considered demands legally exhibited against such estate, from the time such action shall be revived and classed accordingly. SEC. 154. All actions commenced against such executor or omnlasidrd1 administrator, after the death of the deceased, shall be consid -el-:bl'd hn~l ered demands legally exhibited against such estate, from the time of serving the original process on such executor or administrator. SEC. 1455. Any person may exhibit his demand against such Proceedings to establish deestate, by serving upon the executor or administrator a notice, mands, and from in writing, stating the nature and amount of his claim, with a ly exhibited. copy of the instrument of writing or account upon which the claim is founded) and such claim shall be considered legally exhibited from the time of serving such notice. SEC. 156. Every executor and administrator shall keep a Executors, &c., to keep a list of list of all demands thus exhibited, classing them, and make re- demands. turn thereof to the probate court every year, at the term at which he is to make settlement. SEC. 157. Any person having a demand against an estate, bemahiditoday may establish the same by the judgment or decree of some court, copy of court of record, in the ordinary course of proceeding, and ex- ited, &c. hibit a copy of such judgment or decree to the probate court. SEC. 158. The probate court shall have jurisdiction to hear Jurisdiction in allowing deand determine all demands against any estate, and a concise mld. entry of the order of allowance shall be made on the record of the court, which shall have the force and effect of a judgment. SEC. 159. No probate court shall allow any demand against Court not to allow demands any estate, when the estate is indebted to any claimant, after when estate is indebted to allowing all just credits and offsets, unless the claimant first claimant, unless, make oath in open court, or file an affidavit with such claim, stating to the best of his knowledge and belief, he has given 536 EXECUTORS AND ADMINISTRATORS. [CH. 91. credits to the estate for all payments and offsets to which it is entitled, and that the balance claimed is justly due. Not to allow de- SEC. 160. No probate court shall allow any demand against mands without oath or affidavit any estate, when the claimant is indebted to said estate, after of claimant. allowing all just credits and offsets, unless the claimant first make oath in open court, or file an affidavit with such claim, Natnre of afida-stating, to the best of his knowledge and belief, he has given credits to the estate for all payments and offsets to which it is entitled, and that his account or demand, as presented, is correctly stated; and the affidavit in this section and the preceding Demand to be one shall not be received as any evidence of the demand, but established. the same shall be established by competent legal testimony, before it is allowed or adjusted. Maygbe made by SEC. 161. The affid&*it or oath required by the two precedagent in certain GaseB- - ing sections may be made by an agent of the claimant, when such agent has had the management and transaction of the business out of which such demand originated, or when such agent has had the means of knowing, personally, the facts required to be sworn to by those sections. Written'notice SEC. 162. Any person desiring to establish a demand against containing copy of instrumetbe any estate, shall deliver to the executor or administrator, a given, written notice, containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next term of the probate court. Notice, when, SEC. 163. Such notice shall be served on the executor or how, and by whom served. administrator ten days before the beginning of such term of the court, and may be served by the party, his agent or attorney, or by any competent witness, who shall make affidavit to such service. May be waived. SEC. 164. The executor or administrator may appear in court and waive the service of any such notice. To determine SEC. 165. The probate court shall hear and determine all dedemands in a summary way. mands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence. Depositionthow SEC. 166. Any person may take depositions in support of amd when taken. his demand, at his own expense, if he first procure the written consent of the executor or administrator, and such depositions may be taken in the ordinary manner, at such time and place as may be agreed upon, and read in evidence in support of such demand. CH. 91.] EXECUTORS AND ADMINISTRATORS. 537 SEC. 167. If the demands do not exceed twenty dollars, or If the claim does if neither party require a jury, the court may decide on the ty dollars. validity of such demand. SEC. 168. If the demand exceed twenty dollars and either If the demand exceed twenty party require a jury, one shall be immediately summoned, and dollars. the trial shall be conducted in a summary manner, without the form of pleading; and when the demand is not due at the time of trial, the court or jury may adjust the same by rebating therefrom at the rate of six per cent. per annum from the time of trial until due. SEC. 169. Any executor or administrator may establish a When eecltor claims as credidemand against his testator or intestate, by proceeding against tor. his c- executor or co-administrator in the manner prescribed for other pcrsens; but if there be no co-executor or co-administrator, he shall file his claim and other papers, and the court shall appoint some suitable person to appear and manage the defense on the part of the estate. SEC. 170. When a demand shall be presented to the probate Who 8h,11 pay costs. court for allowance, if the demand be allowed, the estate shall pay the costs; if disallowed, the party presenting the claim shall pay the costs. SEC. 171. The clerk of the probate court shall keep an ab- Cler to keepa abstract. stract of all judgments of other courts filed, and of all demands established in the probate court against such estate, which shall show their amount, date, class, and to whom payable. SEC. 172. If any judgment of a court of record be filed in Deemdds to be the probate court, and when demands are allowed against any estate in the probate court, such court shall determine its class, and the clerk shall make an entry thereof in his abstract, and when thus classed, the executor or administrator may satisfy such demand according to such classification. SEC. 173. When any such demand has been allowed, the Amountband class to be euclerk shall endorse, on the back thereof, the amount alloweddorsed. thereon, and the class to which it belongs, and deliver the same to the demandant. SEC. 174. All demands against any estate shall be paid by In what order debts to be paid. the executor or administrator, as far as he has assets, in the order in which they are classed, and no demand of one class shall be paid until all previous classes be satisfied; and if there be not sufficient to pay the whole of any one class, such demands shall be paid in proportion to their- amounts. SEc. 175, If any person commence a suit of any kind, in Commalnm6Ient' ~~~~~~~~~~~~~~~~~~~~of suits, &~. 538 EXECUTORS AND ADMINISTRATORS. [CH. 91. any court, against an estate, within one year from the date of administration, he may recover judgment, but shall pay all costs. Shall appoint an SEC. 176. If any executor or administrator shall temporarily agent to act dur-r ing temporarY absent himself from this Territory, he shall appoint an agent, in writing, for whose acts such executor or administrator and his sureties shall be responsible, (and file such appointment in the office of the court having jurisdiction of his testator or intestate's estate,) to whom notice of demands against his testator or intestate's estate, as provided in this chapter, may be given; Incase of fail- and upon failure to appoint such agent, such notice may be ure. filed in the office of the court having jurisdiction of the estate. Effect of notice SEc. 177. Notice given to such agent, or filed, as aforesaid, te agent. among the papers relating to the estate against which the demand is claimed, shall be as effectual as if it had been given to the executor or administrator. In case of im- SEC. 178. If the executor or administrator shall within four proper allowance. months after any demand shall have been allowed, upon notice given as prescribed in the two preceding sections, file in the office of the court having jurisdiction of the estate, the affidavit of himself or some other credible person, stating that the affiant has good reason to believe, and does believe, that such demand has been improperly allowed, the court shall vacate such order of allowance, and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had not been granted. Of tfhe Settlement of their Accounts. Accounts and SEC. 179. The clerk of each probate court shall provide settlements to be recorded by well bound books, and enter therein the accounts and settleclerk. ments of all executors and administrators made in the court, in such manner as to form a complete record of all such accounts settled in that court. Annual settle- SEC. 180. Every executor and administrator shall exhibit a ment to be made. statement of the accounts of his administration for settlement, with proper vouchers, to the probate court, at its first term after the end of one year from the date of his letters, and at the corresponding term of such court every year thereafter, until the administration be completed. Clerk to eep a SEC. 181. The clerk of the probate court shall keep a docket, and enter therein a list of all executors and adminis CI. 91.] EXECUTORS AND ADMINISTRATORS. 5 39 trators who have not made final settlement of their accounts, the date of their letters, and the term at which they are required to make settlement. SEC. 182. The clerk shall put up in some conspicuous place List to be putrp by clerk. in his offce, thirty -days before each term, a list of the executors and administrators, whose settlements are required to be made at that term. SEC. 183. If any executor or administrator fail to present Faillre to nl.ke settlement, citasuch settlement, the clerk shall immediately issue a citation, tion to issue. to any county in the Territory, requiring him to present his accounts for settlement at the next term of the probate court, and to show cause why an attachment should not issue against him for not exhibiting his accounts at the term at which he, was required to settle. SEC. 184. If such citation be not served, the clerk shall Citation not served, alias to under the direction of the court, issue an alias citation, which issue. may be served, or may be published in some newspaper in this Territory, one month before the return thereof. SEC. 186. If, after such service or publication, no cause to Proceedings o~ court after setrthe contrary be shown, such executor or administrator mayvice. be fined by the probate court, not exceeding one hundred dollars, to the use of the county, and such executor or administrator shall be liable upon his bond for failing to settle. SEC. 186. The probate court may revoke the letters of such Revole letters of delinquent delinquent, and may issue attachment and other process to and attach. compel such settlement, directed to any county in the Territory, and in all such cases such delinquents shall pay costs. SEC. 187. When any executor or administrator shall pre-Accounts to be settled, what sent his account for settlement, the probate court shall settle charges and disbursements al1the same according to law, allow all reasonable charges for lowedthe expenses of the administration, funeral expenses, and all disbursements and appropriations made by order of the court, and a reasonable compensatian for the trouble and expenses of the executor or administrator. SEC. 188. Upon every settlement, the executor or admninis- When disbursements have been trator shall show that every claim for which disbursements made..have been made, has been allowed by the court according to law, or shall produce such proof of the demands as would enable the claimant lo recover it in a suit at law. SEC. 189. At every settlement, the court shall ascertain the On settlement, balance to be apamount of money of the estate which has come to the hands portioned among creditors, of such executor or administrator from all sources, and the 540 EXECUTORS AND ADMINISTRATORS. [CH. 91. amount of debts allowed against such estate; and if there be not sufficient to pay the whole of the debts and expenses of administration, the money remaining after paying the expenses of administration, shall be apportioned among the creditors, according to this act, and the court shall order that such exector or administrator pay the claims allowed by the court according to such apportionment, reserving apportionments made on claims which remain undecided, until a decision be had thereon. On eottlemoet, SEC. 190. The probate court, upon every settlement, shall iowy to proceed till clbtsare proceed in like manner till all the debts be paid, or the assets paid. exhausted; and if, upon such settlement, there shall be money enough to satisfy all demands of any one class legally exhibited against such estate, the court shall order the whole to be paid. Executions al- SEC. 191. If any executor or administrator fail to pay any lowed against estates, against claim thus ordered to be paid, according to the two preceding whom whoim issections, when demanded, the clerk of the probate court, on application of such creditor, and being satisfied that such demand has been made, shall issue execution for the amount ordered to be paid and costs, against the property, goods, chattels and real estate of such executor or administrator. {ot satisfied, or- SEC. 192. If any such execution be returned unsatisfied, der may issue gainst seo-ri- the creditor may sue out of the probate court an order against any one or more of the securities of such executor or administrator, referring to the bond, the order of payment, the execution and return, and requiring such security to show cause why judgment should not be rendered against him for the amount ordered to be paid and still unsatisfied. Order retlrned SEC. 193. Such order may be directed to, and served in any tserved, proceedings thereon. county in:this Territory, and if, upon the return thereof, good cause to the contrary be not shown, the court shall render judgment against such security for the amount unpaid, and costs, and award execution therefor. xotice of final SEC. 194. If any executor or administrator wish to make settlement, how published.o final settlement, he shall publish for four weeks, in some newspaper in this Territory, a notice to all creditors and others interested in the estate, that he intendcl to make final settlement:at tile next term of the court. Final settle- SEC. 195. If it appear to the court that such notice was ment, how conuenlloed, duly published, and that the estate of the deceased has been fully administered, the court shall maklse final settlement, which shall be conducted as annual settlements. CH. 91.] EXECUTORS AND ADMINISTRATORS. 541 SEC. 196. At his final settlement, the court shall give credit what debts to the executor or administrator, for debts which have been ventoryto be charged in the inventory as due to the estate, if the court be satisfied that such debt was not really due to the estate, or that it has been balanced or reduced by offsets in any court of competent jurisdiction, or that the debtor was insolvent, or that from any other cause it was impossible for the executor or administrator to have collected such claim by the exercise of due diligence. Of the Distribution of the Estates. SEC. 197. Executors and administrators shall not be com- -Whentobe made within one year. pelled to make distribution, or pay legacies, until one year after the date of the letters, unless-the legacies specified would be perishable, or subject to injury, if retained one year. SEC. 198. No executor or administrator shall be compelled Legacies, whea to be paid. to pay legacies or make distribution within three years after the date of his letters, unless ordered to do so by the court, until bond and security be given by the legatee or distributee to refund his due proportion of any debt which may afterwards be established against his estate, and the costs attending the recovery thereof. But the widow shall not be required to give such bond before she receive the property selected by her under this act. SEC. 199. If upon any settlement it appear that there is Payment of legacies, how made. sufficient money to satisfy all the demands against an estate, the court shall order the payment of legacies and distribution of shares, as in the case of debts, except that specific legacies shall be first satisfied. SEc. 200. If any personal property descend, and an equal Distribution division thereof can not be made in kind, the probate courtin kind, sale may order the sale of such personal property, (prescribing the o time, place, manner and terms of sale,) and cause the money to be distributed according to the rights of those entitled to distribution. SEc. 201. Each person entitled to distribution, not apply- Application to sell, how and ing therefor, shall be notified in writing of such application,whelgioan ten days before such order shall be made; or if such person do not reside in this Territory, a notice of such application shall be published in some newspaper in this Territory, four consecutive weeks before such order shall be made. SEC. 202. When such order for the sale of personal estate saleordeord, 35 542 EXECUTORS AND ADMINISTRATORS. [CH. 91. tributees to be shall be made by the court, it shall settle the claims of the disadjusted. tributees, and order the person selling such property to distribute the money arising therefrom according to the rights of each person. If distributee SEC. 203. If any distributee become a purchaser of such become purchaser, his receipt property, his receipt for the amount of his share shall be received in payment of an equal amount of the purchase money, and the court shall allow the amount of such receipt as so much distributed under the order of the court. diegabutees nd SEC. 204. If, after the payment of legacies or distributions, pelled to rfund. it becomes necessary that the same, or any part thereof, be refunded for the payment of-debts, the court, on application, shall apportion the same among the legatees or distributees, according to the amount received by them, except that specific legacies shall not be required to be refunded, unless the residue be insufficient to satisfy such debts. On failing to re. SEC. 205. If any legatee or distributee fail to refund, acfund, notice to be given. cording to such order, the court shall, on motion of the executor or administrator, ten days' notice in writing having been given to the legatee or distributee, enter judgment for the amount apportioned to him. May order ap- SEC. 206. The probate court, as occasion may require, may propriations for support of minor order such appropriations for the support of minor children children. of the deceased, not otherwise provided for, as will not prejudice the rights of creditors. Appropriation SEC. 207. Until the widow's portion be assigned, the court shall order such sum to be paid to her out of the rent of real estate, as shall be in proportion to her interest in the real estate. Court itay order SEC. 208. If, upon the return of the inventory and appraiseestate to be deliveredtowidow. ment, it appears to the court that the whole amount of the estate is not more than that to which the widow is by law entitled, without being subject to the payment of debts, and that there are no debts due the estate, or so small that they would not defray the expenses of collection and of administration, the probate court may, in its discretion, make an order that such estate be delivered to the widow, and that all further advertisements, settlements and other proceedings under said administration be dispensed with, unless further estate be discovered, or the court order the administration to be proceeded -with. SECo 209. If, upon final settlement, it appear that any lega CH. 91.] EXECUTORS AND ADMINISTRATORS. 543 tee or distributee is non-resident, or from any other cause is n finalo settle ment, money to not in a situation to receive his share, and give a discharge be loaned out therefor, or does not appear by himself, or agent, to receive the same, the probate court shall order the executor or admin istrator to lend out the money on good security, for such limited time as the court may direct, not exceeding one year. SEC. 210. In all cases when the legatee or distributee shall Iflegatee or dis tributee does not not appear within one year after final settlement by the exec- appear in one year. utor or administrator, and claim his share, the probate court shall order the same to be paid into the county treasury. SEC. 211 When any share shall be paid into the treasury, When such leg,. acy paid into the executor or administrator shall take from the treasurer du- Territorialtreasury. plicate receipts, one of which he shall retain, and file the other with the clerk of the probate court, ordering the share to be paid into the treasury, and the court shall credit the executor or administrator therewith. SEC. 212. When any legatee or distributee shall appear and Mode of obtain. claim any share paid into the treasury, the probate court be-ugch lega fore whom the final settlement was made, being first satisfied of his right, shall grant him a certificate, under its seal; and on presentation of the certficate to the treasurer, he shall pay him the amount. SEC. 213. If, after the expiration of one year after the final After one year property unsettlement, there should remain, in the hands of the executor claimed to be sold. or administrator, any personal property unclaimed by the legatee or distributee, the court shall order the same to be sold, and the proceeds paid into the county treasury; and the same may be drawn therefrom in the manner provided in the preceding section. SEC. 214. When administration shall be taken in this Ter- Non-resident's estate, how dis, ritory on the estate of any person who, at the time of his de- posed of. cease, was an inhabitant of any other state or country, his real estate found here, after the payment of his debts, shall be disposed of according to his last will, according to the- laws of this Territory, and his personal estate according to his last will, according to the laws of his domicile; and, if there should be no such will, his real estate shall descend according to the laws of this Territory, and his personal estate shall be distributed and disposed of, according to the laws of the state or country of which he was an inhabitant. SEC. 215. Upon the final settlement of such an estate, and Onfinal settleaent, residue, after the payment of all debts for which the same is liable in how disposed of. 544 EXECUTORS AND ADMINISTRATORS. [CH. 91. this Territory, the residue of the personal estate, if any, may be distributed and disposed of, in manner aforesaid, by the probate court in which the estate is settled, or it may be transmitted to the executor or administrator, if there be any, in the state or country where the deceased had his domicile, as the court, under the circumstances shall think best. Non-residents' SEc. 216. If such deceased person died insolvent, his estate estate how div hdod. found in this Territory shall, as far as practicable, be so disposed of, that all his creditors here and elsewhere may receive an equal share, in proportion to their respective debts. state not Teo be SEC. 217. To this end, his estate shall not be transmitted to ritory. the foreign executor or administrator, until his creditors, who are citizens of this Territory, shall have received their just proportions that would be due to them if the whole of the estate of the deceased, wherever found, were divided among all the said creditors in proportion to their respective debts, without preferring any one species of debt to another. Citizen creditors SEC. 218. In such case, no creditor, not being a citizen of this Territory, shall be paid out of the assets found here, until those who are citizens shall have received their just proportions as provided in the preceding section. Residue to other SEC. 218. If there be any residue after such payment to the erditors. citizens of this Territory, the same may be paid to any other creditors who shall duly have proved their debts here, in proportion to the amount due to each of them respectively. Not to receive SEC. 220. No one shall receive more than would be due more than due. to him if the whole estate were divided rateably among all the creditors. Any balance to SEC. 221. The balance, if any, may be transmitted to the be transmitted to foreign execu- foreign executor or administrator, or, if there be none such, it shall, after the expiration of three years from the appointment of the administrator, be distributed rateably among all the creditors, citizens and others, who shall have proved their debts in this Territory. Compensation of SEC. 222. Executors and administrators shall be allowed for their trouble not exceeding six per centum on the whole amount of personal estate, and on the money arising from the sale of lands, with such additional allowance for leasing real estate and collecting and preserving the estate, as the probate court shall deem reasonable, CH. 91.] EXECUTORS AND ADMINISTRATORS. 45 Of Proceedings against Executors, Administrators, and Securities. SEC. 223. If, upon the settlement of any executor or admin- Any creditor may suggest a istrator, there be not sufficient assets to pay all the demands devastavit, against the estate, any creditor may suggest that he has not made a just account of the assets in his hands, and apply for an inquiry into the same. SEC. 224. Upon such application, the court shall direct an Uponsuc application, court issue to be made up, whether there be waste or not, which shall to direct an isSue. be tried as demands against an estate. SEC..225. If no waste be found, the applicant shall pay the Costs. Judgment. H~ow procosts; but if waste be found, judgment shall be recorded in ceeds applied. favor of the applicant against such executor or administrator, of his own proper estate, for the amount wasted, and costs, and the money collected shall be applied to the payment of the debt due to the applicant, and the residue shall be apportioned among the creditors. SEC. 226. If it appear that such waste was committed wil- If waste is wilful and fraudufully and fraudulently, the applicant shall recover double the lent, applicant to receive double amount wasted, with costs, to be apportioned as aforesaid. SEC. 227. After final settlement of any estate found to be Suitonadministration bond a!insolvent, any creditor, or other person interested therein, may ter final settlement, when bring a suit on the administration bond, and assign and prove, brought and efas a breach of condition, any waste or mismanagement of the estate, and have judgment against the executor or administrator for the whole value of the assets wasted or mismanaged, as he could have done if they had been regularly accounted for, with costs. SEC. 228. Upon such judgment, execution may issue against Execution on judgment, the private estate of such executor or administrator, and his against whom and what estate settlement shall only be conclusive so far as he has applied the to issue assets pursuant to the appointment made by the court for the payment of debts. SEc. 229. The proceeds of all executions, on any judgments Proceeds of executions, how to thus recovered, shall be applied to the payment of the debt due be applied. to the person suing, and the residue shall be apportioned among the creditors. SEC. 230. The bond of any executor or administrator may Bond of an execlitor or adminbe sued on, at the instance of any party injured, in the name istrator may be sued on; suit of the Territory, to the use of such party, for the waste or how andby whom brought. mismanagement of the estate, or other breach of the condition 546 EXECUTORS AND ADMINISTRATORS. [CH. 91. of such bond, and the actual waste or damage shall be assessed thereon. Court, how to SEC. 231. The probate court, for disobedience to any order obedience of any made in pursuance of this act, may issue attachment, imprison order. the body, or proceed by sequestration of land and goods, as, fully as a court of chancery may do, and may issue their process for that purpose, directed to any county, and cause it to be served therein. O/ Appeals. Appsals, wwat SEC, 2320 Appeals shall be allowed from the decision of the probate court to the district court, in the following cases: First, On all demands against an estate exceeding ten dollars. Second, On all settlements of executors and administrators. Third, On all apportionments among creditors, legatees or distributees& Fourth, On all orders directing the payment of legacies, making distribution, or making allowances to the widow. Fifth, On all orders for the sale of personal estate, because distribution cannot be made in kind. Sixth, On all orders for the sale of real estate. Seventh, On judgments for waste. Eighth, On proceedings to recover balances escheated to the Territory or county. Ninth, On orders revoking letters testamentary, or of administration. Tenth, On orders making allowances for the expenses of administration. Eleventh, On orders for the specific execution of contracts. Twelfth, On orders compelling legatees or distributees to refund, and in all other cases where there shall be a final decision of any matter arising under the provisions of this act. Appeals, when SEC. 233. All appeals shall be taken during the term at to be taken. which the decision complained of, is made, or within ten days after the making of such decision. Notice of such appeal shall be given in open court and entered on the record, or by written notice to the opposite party. Application for SEC. 234. The applicant for such appeal, his agent or attorto be filed, &c. ney, shall file an affidavit that the appeal is not taken for the purpose of vexation or delay, but because the affiant believes that the appellant is aggrieved by the decision of the court. ApPlicant tofile SEC. 235. Every such appellant shall file in the court the bond. Its condition. bond of himself or some other person, in a sum and with secuExecutor or ad& ~~trdtorot rity approved by the court, conditioned that he will prosecute bond. the appeal, and pay all debts, damages and costs that may be adjudged against him. This act shall not be so construed as to Ci. 92.] EXEMPTIONS. 547 require any executor or administrator to enter into bond in order to entitle him to an appeal. SEC. 236. After such affidavit and bond have been filed, the Affidavit and bond filed, apappeal shall be granted, but shall not be a supersedeas in any peal to be grat other matter relating to the administrator of the estate, except upersedea. that from which the appeal is specially taken. SEc. 237. When such appeal is taken, the clerk shall trans- When appeal taken, clerk to mit to the clerk of the district court, a certified transcript of the tarinpit otra. record and proceedings relating to the cause, together with the original papers in his office relating thereto. SEC. 238. Upon the filing of such transcript and papers in Upon filing a transcript, court the office of the clerk of the district court, the court shall be shall be posseeeed of the cause possessed of the cause, and shall proceed to hear, try andand try it anew. determine the same anew, without regarding any error, defect or other imperfection, in the proceedings of the probate court. SEC. 239. The clerk of the district court shall certify a tran- Proceedings, &c, to be certified to script of the record and proceedings, and the original papers, the court - whence the apto the court whence the appeal was taken, who shall proceed pea was taken. according to the decision of the district court. This act to take effect and be in force from and after the first day of June next. Approved February 3, 1859. CHAPTER XCII. (Acts of 1859, Chapter LXVII.) AN ACT exempting certain Property from sale upon Execution or other process. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. A homestead, consisting of any quantity of land Eighty acres of land exempt. not exceeding eighty acres, for agricultural or horticultural [,se Constitution of Kansas, purposes, and the dwelling house thereon, and its appurtenances, Art 15 —9.] to be selected by the owner thereof, and not included in any incorporated town, city or village; or instead thereof, at the option of the owner, a quantity of land, not exceeding, in A lot and dwell ing house, value amount, one lot, being within an incorporated town, city or$i,oo0. village, and the dwelling house thereon, and its appurtenances, the whole not exceeding in value one thousand dollars, owned and occupied by any resident of this Territory, being the head of a family, shall not be subject to attachment, levy or sale upon execution, or any other process issuing out of any court within 548 EXEMPTIONS. [CH. 92. Widowan tihled this Territory. This section shall be deemed and construed to dren entitled to benefit. exempt such homestead, in the manner aforesaid, during the time it shall be occupied by the widow or minor child or children of any deceased person who was, when living, entitled to the benefit of this act. Exemption not SEC. 2. Such exemption shall not extend to any mortgage, to affect mort. l gage with con- or any instrument in the nature thereof, lawfully obtained, but sent of wife or for purchase such mortgage or other alienation or incumbrance of such land, money. by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same, unless such mortgage or other instrument shall be given to secure the payment of the purchase money, or some portion thereof. po levy being SEC. 3. Whenever any levy shall be made upon the lands or may be given to tenements of a householder, whose homestead has not been officer. selected and set apart, such householder, his wife, agent or attorney, may notify the officer, at the time of making such levy, of what he regards as his homestead, with a description thereof, and the remainder alone shall be subject to sale under such levy. If plaintiff di. SEC. 4. If the plaintiff in execution shall be dissatisfied with satisfied, ap. praiseeuent may the lands and tenements selected and set apart as aforesaid, the be had. matter shall be submitted to two appraisers, one to be selected by the plaintiff and the other by the defendant, his wife, agent or attorney, who shall determine whether such lands and tenements exceed in value the sum of one thousand dollars. If the appraisers, so chosen, cannot agree, they shall appoint a third person to decide between them. If they cannot agree in the choice of a third person, he shall be named by the officer executing the writ. When extent is SEC. 5. If the land, selected as a homestead, consists of a less than 2,500 sq. yairds, and lot containing twenty-five hundred square yards, or less, and $1,boo excess the appraisers shall certify to the officer that such lot, together may be sold, blow,.with the improvements thereon, exceeds, in value, the sum of one thousand dollars, the said officer may proceed to sell such excess, or the whole, at the option of the defendant in execution, in the manner provided in other cases for the sale of real Application of property under execution. In case the excess only is sold, then of such proceeds shall be applied to the satisfaction of the execution; and, in case the whole amount of the property is sold, one thousand dollars of the proceeds of such sale shall be paid to the defendant in execution, and the excess shall be applied to the satisfaction of the execution: Provided, That no bid shall be received for a less sum than one thousand dollars. CO. 92.] EXEMPTIONS. - 549 SEC. 6. In any case where the land selected and claimed as Proceedings when extent exa homestead shall exceed in extent twenty-five hundred square ceeds 2,500sq. yds., and exceeds yards, if the appraisers be of opinion that such land, together $1,000. with the dwelling house and its appurtenances, exceed in value the sum of one thousand dollars, they shall set apart a portion thereof, in a compact form, including the dwelling house, if possible, as the homestead; such homestead shall be, as near as may be, of the value of one thousand dollars, and the said appraisers shall cause the same to be surveyed. The expense Expense of curuVey chargeable of such survey shall be chargeable on the execution, and col- on execution. lected thereon. SEC. 7. After the survey shall have been made, the officer Sale of rematmaking the levy may sell the property levied upon and not included in the survey, as in cases of other sales of real estate under execution; and, in giving a deed for the same, he may Deed. describe it according to his original levy, excepting therefrom, by metes and bonds, according to the certificate of survey, the quantity set apart as aforesaid. SEc. 8. Before proceeding to act, the appraisers, mentioned Appraisers in this act, shall be sworn, by the officer, to do justice between the parties. Their decision shall be delivered to the officer, Award to be returned with exshall be returned, by him, with the execution, and shall be con- ecution. elusive between the parties and for the protection of the officer against all liability. If the value of the real estate or personal Wthenva~slldoe property, as the case may be, do not exceed the amount made costs paid by exempt by this act, the cost of the proceedings shall be paid by the plaintiff in execution, otherwise by the defendant. SEc. 9. Any person owning and occupying any house or land Occupants of rented premises not his own, and claiming said house as a homestead, shall be to be entitle to exemption. entitled to the exemption aforesaid. SEC. 10. Nothing in this act shall be construed as exempting Nothing exempt from sale for any real or personal estate from taxation or sale for taxes. taxes. SEC. 11. No property, hereinafter mentioned or represented, Personal propshall be liable to attachment, execution or sale, on any final erty exempt. process issued from any court in this Territory: First, The family bible. Second, Family pictures, school books or library and musical instruments for use of family. Third, A seat or pew in any house or place of public worship. Fourth, A lot in any burial ground. Fifth, All wearing apparel of the debtor and his family, all beds, bedsteads and bedding, kept and used by the debtor and his family, all stoves and appendages put up or kept for the use of the debtor and his family, all cooking utensils and all other household furniture, not herein enumerated, 550 EXEMPTIONS. [CH. 93. not exceeding five hundred dollars. Sixth, Three cows, ten swine, one yoke of oxen and one horse, or, in lieu of one yoke of oxen and one horse, a span of horses or mules; twenty sheep, and the wool from the same, either in the raw material or manufactured into yarn or cloth; the necessary food for all the stock mentioned in this section, for one years' support, either provided or growing, or both, as the debtor may choose; also, one wagon, cart or dray, one sleigh, two ploughs, one drag, and other farming utensils, including tackle for teams, not exceeding three hundred dollars in value. Seventh, The provisions for the debtor and his family, necessary for one year's support, either provided or growing, or both, and fuel necessary for one year. Eighth, The tools and instruments of any mechanic, minor or other person, used and kept for the purpose of carrying on his trade or business, not exceeding three hundred dollars in value, and, in addition thereto, stock in trade, not exceeding four hundred dollars in value; the.library and implements of any professional man; all of which articles, hereiibefore intended to be exempt, shall be chosen by the debtor, his agent, clerk or legal representative, as the case may be. Not to apply to SEC. 12. The provisions of this act shall not apply to any previous judg[Amendedtby legal process issued in pursuance of judgments obtained upon hby. 9,.]eaed contracts entered into prior to the taking effect of this act. SEC. 13. Nothing in this act shall be so construed as to exempt any property in this Territory from execution or attachment for clerk's, laborer's or mechanic's wages. SEC. 14. All laws inconsistent with the provisions of this act are hereby repealed. SEC. 15. This act to take effect and be in force from and after the first clay of June next. Approved February 7, 1859. CHAPTER XCilI. (Acts of 1860, Chapter LXV.) AN ACT to amend an act entitled " An Act Exempting certain Property from sale upon Execution or other Process," approved February the 11th, A. D. 1859. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That section twelve of the provisions of an act entitled "An Act excepting certain property from sale upon Ca. 94-95.] EXEMPTIONS-EXECUTIONS. 551 Execution or other process,'' approved February the 7th, A. D. 1859, be so amended as to read as follows, viz: " The provisions of this act shall apply to all legal process issued in pursuance of judgments obtained upon all contracts entered into both prior and subsequent to the taking effect of this act. SEC. 2. That said section twelve of the act to which this is Sec. 12 repealed. amendatory be and the same is hereby repealed. SEC. 3. This act to take effect and be in force firom and after the first day of May next. Approved February 27, 1860. CHAPTER XCIV. (Acts of 1860, Chapter LXVI.) AN ACT Amendatory to an act entitled i" An Act to Exempt certain Property from sale upon Execution or other Processes." Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SEcTION 1. That the twelfth section of the act to which this [See ch. 85.] Sec. 12 repealed is amendatory is hereby repealed. SEC. 2. This act to take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER XCV. (Acts of 1860, Chapter LXIV.) AN ACT Relating to Executions returned "Not satisfied." Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. When an execution shall have been placed in When execution is returned not the hands of an officer for collection, and the same shall be satisfied, on affidavit being filed returned not satisfied for want of goods, chattels, lands and orderof garnishment may be istenements sufficient to satisfy the same, if issued from a court ued. of record; or the same be returned for want of goods and chattels sufficient to satisfy the same, if issued by a justice of the peace, the judgment creditor may file an affidavit in the office of the clerk of such court, if the execution issue from a court of record, or with the justice of the peace, if issued by 552 FENCES. [CH. 96. a justice of the peace, setting forth that he has good cause to believe and does believe that the judgment debtor has debts owing him, (naming the person or persons owing him,) and that such clerk, or such justice, shall issue an order of garnishment, to be served as in cases of attachment, requiring such person to appear at the next term of the court, if issued from a court of record-if by a justice of the peace, before him, on a day to be named-to answer such questions as may be propounded him by the judgment creditor touching his indebtedness to such judgment debtor. Same. SEC. 2. That, if it shall be ascertained that such person or persons garnisheed shall be indebted to the judgment debtor, the same proceedings shall be thereafter had as in like cases of garnishment in proceedings in attachment. Notto conflict SEC. 3. That nothing in this act shall be construed to affect with code of civil proceedure. proceedings in aid of executions under the code of civil procedure. SEC. 4. This act to be in force from and after its passage. Approved February 15, 1860. CHAPTER XCVI. (Acts of 1860, Chapter LXIX.) AN ACT Legalizing Wire Fence. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: What consti- SECTION 1. That all fences composed of posts and wire, tutes a legal wire fence. shall be at least four and a half feet high. The posts shall be of the ordinary size for fencing purposes, and set in the ground two feet deep, and not over nine feet apart, with holes through the posts, not over fifteen inches apart to admit three separate strands of number nine fence wire, with rollers and levers, at suitalble distances, to strain and hold the wire straight and firm; and such fence shall be deemed a lawful and sufficient inclosure. Apply only to SEC. 2. This act shall apply only to those counties and certain counties. parts of counties included in the hog law, save Johnson county. SEC. 3. This act to take effect and be in force from and after its passage. Approved, February 24, 1860. CHr. 97.] FENCES. 553 CHAPTER XCVIL. (Acts of 1861, Chapter XXXViII.) AN ACT Providing for Division Fences. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That, where two or more persons shall havePersons having lands adjoining. lands adjoining, each of them shall make and maintain a just proportion of the division fence between them, except the owner or owners of either the adjoining lands shall choose to let such land lie open. SEC. 2. When a person shall inclose his land, he shallPersons shall build their pro either pay to the owner of the adjoining land a just propeor- portion offence. tion of the value, at that time, of any division fence that shall have been made by such adjoining owner, or he: shall build his proportion of such division fence. SEC. 3. If dispute arises between the owners of adjoining Disputesettled by freeholders. lands, concerning the value of such fence, to be maintained or made by either of them, such dispute shall be settled by two resident fireeholders of the township. SEC. 4. When any of the above mentioned matters shall be Whensubmittod each party shall submitted to freeholders, each party shall choose one; and, ifechoose one. either neglect, after eight days' notice, in writing, to make such choice, the other party may select both. SEC. 5. The freeholders shall examine the premises, andFreeholders examine premises hear the allegations of the parties. In case of their disagree- anOdhear allegations. nent, they shall select another freeholder to act with them, and the decision of any two shall be final upon the parties to Decision final. such dispute, and upon all parties holding under them. SEC. 6. The decision of the freeholders shall be reduced to Decisions reduced to writing, writing, shall contain a description of the fence, and of theand shall contain what, and proportion to be maintained by each, and shall be forthwith filed. filed in the office in which is kept the record of titles to lands within the county. SEC. 7. If any person, liable to contribute to the erection Ifperson liable of a separation or division fence, shall neglect or refuse tO retuse.g make and maintain his proportion of such fence, or shall permit the same to be out of repair, he shall not be allowed to ShlalI not mainhave and maintain any action for damages incurred, but shall be liable to pay to the party injured, all such damages as shall Liable to pay <1 damages. accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by two resident freeholders of the f554 FENCES. [CH. 97. To be appraised. township, to be selected as herein provided, and to be recovered, with costs of suit; which appraisement shall be reduced to writing and signed by the freeholders making the Shall be prima. same, but shall be only prima facie evidence of the amount of facie evidence. such damages. If neqlect after SEC. 8. If any such neglect or refusal shall be continued for ting. the period of one month after request, in writing, to make or repair such fence, the party injured may make or repair the same, at the expense of the party so neglecting or refusing, to be recovered from him, with costs of suit. Mayremove SEc. 9. If any person, who shall have made his part of a fence. division fence, shall be disposed to remove his fence and sufFirstgive noticefer his lands to lie open, he may do so by first giving forty days notice to the owner or occupant of the adjoining land, at any time between the first day of December in any year, and the first day of March following, but at no other time. Ifremovedwith- SEC. 10. If any such fence shall be removed without such out notice. notice, the party removing the same shall pay to the party injured, all such damages as he may sustain thereby, to be recovered with costs of suit. Diviresion fece SEC. 11. Whenever a division fence shall be injured or destroyed. stroyed by floods or other casualty, the person bound to make or repair such fence, or any part thereof, shall make or repair shall be liable the same, or his part thereof, immediately, and shall be liable for damages. e h for all damages that may accrue, from neglect to make such repairs. If refuse or neg- SEC. 12. If such person shall refuse or neglect to make or repair his part of such fence for the space of ten days after being requested, in writing, to make such repairs, by any Party injured party interested therein, the party injured may make or repair may repair. the same, at the expense of the party so refusing or neglecting, to be recovered from him, with costs of suit. Witnesses may SEC. 13. Witnesses may be examined by the freeholders, on be examined. all questions Submitted to them, under the provisions of this Power to issue act, and either of them shall have power to issue subpcenas subpoena. for, and to administer oaths to such witnesses. Freeholder shall SEC. 14. Whenever a freeholder shall be called upon to distake oath. charge any duty under the provisions of this act, he shall, before he enters upon the discharge of such duty, swear that he will impartially perform the same; and any one of such freeholders, after he shall have been so sworn before any officer authorized by law to administer oaths, shall be competent to CH. 98.] FERRIES. 555 administer a like oath to any other freeholder who may be associated with him. SEC. 15. No freeholder shall be compelled to render service under the provisions of this act until he shall have been paid, or have had secured to him, the sum of one dollar for each day necessarily spent in the discharge of his duty; nor shall any freeholder, who is a kin to either of the parties, or interested in the matter in dispute, be permitted to act under these provisions. SEC. 16. This act shall take effect and be in force from and after its publication. Approved May 13, 1861. CHAPTER XCVIII. (Acts of 1859. Chapter LXIX.) AN ACT regulating Ferries. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. No person shall keep a ferry, so as to demand Not to oe kept without license. pay thereat, without a license. SEC. 2. Any person may petition the tribunal transacting Application for license, how county business of the county for license to keep a ferry, and emade, &c. if said tribunal believes such ferry necessary for the accommodation of the public, and that the petitioner is a suitable person to keep the same, it shall order the clerk to issue a license upon the payment of the tax assessed in such order: Provided, That license shall not be granted to any ferry within the limits granted to any other ferry, previously, by legislative enactment. SEC. 3. Such tax shall not be less than ten dollars nor more Taxnotles than ten dollars. than five hundred dollars, to be paid to the use of the county. SEC. 4. Upon the production of the receipt of the county License to issue, treasurer for the tax to such clerk, he shall issue a license to when. keep a ferry at the place therein mentioned for one year. SEC. 5. Before the delivery of the license, such person shall Bond to by given —conditions. give bond to the Territory, with sufficient surety, approved by such clerk, in such sum as the said tribunal shall order, conditioned for the faithful performance of the duties required by law at such ferry, which bond shall be filed in the office of such clerk, 556 FERRIES. [CR. 98. ates of ferriage SEC. 6. The tribunal aforesaid shall fix the rate of ferriage nal~ at each ferry, and may at any time alter the same, having regard to the breadth and situation of the stretin and publicity of the ferry. No change in the rates of ferriage shall go into effect during the continuance of any license. Licenlse granted SEC. 7. The clerk of the tribunal aforesaid, in vacation, mlay in vacation. grant ferry licenses, assess the tax and fix the rates for the same, and exercise all the powers of said tribunal touching the same. Continue how SEC. 8. Such license shall continue until the end of the next Iong. term of said tribunal, and the tax shall be assessed in proportion to the time for which the license is granted; and in all other respects the clerk and county treasurer shall proceed as upon licenses granted by the said tribunal. Grood boat to be SPC. 9. Every ferryman shall keep at his ferry a good boat kept. or boats, in good repair, suitable to the wants, and sufficient hands to attend, on all occasions. Penalty for neg- SEC. 10. Every ferryman failing to give such due attention, shall, for every offence, forfeit five dollars; and for failure to keep each boat in good repair, shall forfeit thirty dollars to the county where the ferry is situated, and he shall be liable for all damages that any person may sustain thereby, to be recovered by action in any court having jurisdiction. Rates to be put SEC. 11. Every ferryman shall keep a list of the legal rates of ferriage, printed or written in a legible hand, constantly posted up at some public place at the ferry or ferry house. Penalty for fail- SEC. 12. If any ferryman fail to comply with the provisions of the preceding sections, he shall, for every such offence, forfeit not less than ten dollars to the county. Penalty forkeep. SEC. 13. If any person demand or receive pay for services out license, aS ferryman without a license, he shall forfeit to the county twenty dollars for every day he shall keep such ferry, or be imprisoned, not less than ten days nor more than thirty days, or be punished by both such fine and imprisonment, to be recovered by indictment in the court of the proper county. Liable to action. SEC. 14. Such ferries shall be further liable in an action at law for all damages that may accrue to the person licensed to keep such ferry. Penalties,how SEC. 15. Any penalties imposed by this act may be recovrecoered. erable before any court having jurisdiction, in the name of the county. CH. 98.] FERRIES. 557 SEC. 16. Upon the failure of any ferryman to perform any Switon boand when and how duty required by this act, the county attorney shall commence instituted. and prosecute an action on the bond given by the ferryman, and the recovery of any penalty shall be no bar to any action on such bond. SEO. 17. Every offence under this act shall be prosecuted Limitatioa. within one year. SEc. 18. If any ferryman fail to perform his duties, the said License may b tribunal may at any time revoke his license. revoked. SEC. 19. If any such tribunal believes that any ferry in the Liceno may b county is so little used as not to justify the payment of license, from tadx they may, in their discretion, give to the keeper of such ferry a license without the payment of any tax. SEC. 20. Such tribunal shall take bond and fix the rates as Tribunal to fix in other ferries, and no ferry shall be licensed on the same side tense not graied, when. of the river, and in the same county, within one mile of any ferry that shall there be already licensed. SEC. 21., If the master or commander of any steamboat shall Penalties on - 1 a. -. ~masters of boats land at the platform or known landing place of any public for interfering with the rights tbrry, and shall intentionally obstruct the passage of any ferry offerrymen. boat, or moor or unload against, over or upon the same, without the consent of the owner of such ferry, such master or owner of'such steamboat shall forfeit and pay to the legal possessor of such ferry landing fifty dollars for each offence, to be recovered by action of debt before a justice of the peace, and shall be liable to an action for damages, to be recovered before any court having competent jurisdiction. SEC. 22. Persons who have heretofore or may hereafter ob-Taximposedab tribunal to be tain from the Legislature the privilege of keeping a ferry, shall paid annually. pay annually to the clerk of the tribunal transacting county business such tax as said county tribunal may impose, not less than ten dollars nor more than five hundred, for the use of the county, and shall be subject to the same regulations as other ferries, and liable to the same penalties. SEC. 23. This act shall take effect and be in force from and after the first day of June next. Approved February 8, 1859. 86 558 FEES. [CII. 99. CHAPTER XCIX. (Acts of 1862.) AN ACT fixing the Fees of the Clerk of the Supreme Court, District Attorneys, County Officers, Justices of the Peace, Constables, Witnesses, Jurors, Referees, Appraisers, and Notaries Public. Be it enacted by the Legislature of the State of Kanscs: [Cl. 26-451.] SECTION 1. That all the persons and officers herein mentioned shall be entitled to receive, for their services, the fees and compensation herein allowed, and no other, except as may be hereafter otherwise provided by law. of clerk of SEC. 2. The clerk of the district court of each county shall be entitled to the following fees for his services: Filing any paper, five cents; entering appearance, each party, and docketing cause, twenty cents; issuing every writ, fifty cents; taking affidavit, twenty-five cents; approving bond, thirty cents; taking recognizance, twenty-five cents; administering oath, ten cents, entering issue joined, twenty cents; entering every order, motion, rule, application, settlement, reports, plea, or other matters, twenty cents; every entry on appearance docket other than docketing cause and entering appearance, ten cents; every continuance or discontinuance, fifteen cents; swearing and impanneling jury, fifty cents; trial by court or jury, fifteen cents; taking and recording verdict, fifteen cents; entering judgment, twenty-five cents; entering decree, seventy-five cents; entering judgment on docket, twenty-five cents; entering appeal, twenty-five cents; docketing execution, ten cents; entering return on execution per folio, fifteen cents for first folio, and ten cents each additional; taxing cost, fifty cents; entering satisfaction of record, twenty-five cents; certificate and seal, fifty cents; each entry on index, five cents; making any records necessary to be made, or copying the same, or any instrument, per folio, ten cents; arraigning prisoner and entering plea, twenty-five cents; certifying fees of juror,, ten cents; taxing and entering declaration of intention to become a citizen of the United States, and issuing certified copy of the same, one dollar; entering final admission of alien, and issuing certified copy of same, with seal, one dollar. reesofsheriff. SEC. 3. The sheriff of each county shall receive the following fees: Serving and returning any writ, process, or order, except as hereinafter provided, seventy-five cents for the first person-each additional person, twenty-five cents; serving a Cu. 99.] FEES. 5 9 subpoena for the first person named, fifty cents-each additional person, twenty-five cents; serving a notice, fifty cents; appraisal of property, one dollar; taking, approving, and returning any bond, fifty cents; making a levy under execution, seventy-five cents; commission on money collected by order, on all sums under five hundred dollars, three per cent.; on all sums over five hundred dollars and under one thousand dollars, two per cent.; all sums over one thousand dollars, one per cent.; on all moneys collected without sale, one half of the above rates; serving an attachment, one dollar; executing and acknowledging sheriff's deed, two dollars and fifty cents; summoning grand and petit jurors on regular pannel, forty cents each; summoning grand and petit jurors on special order of court, twenty-five cents; summoning talesmen, ten cents; for every mile actually and necessarily traveled in serving any writ, process, or order, and in summoning grand and petit jurors, ten cents; attending court, each day two dollars; bringing up prisoner on habeas corpus, one dollar; executing order of commitment, twenty five cents; bringing prisoner into court, and returning him under an order of court, twenty-five cents; making arrest and commitment as a peace officer, without a warrant, one dollar; boarding prisoner, per day, fifty cents; discharging prisoner from jail, twenty-five cents; serving a writ of replevin, one dollar; taking inventory of property, each day, one dollar and fifty cents; selling property, each day, one dollar; advertising, one dollar; each person returned non est, ten cents; serving an attachment or execution against a boat or vessel, such additional compensation for his trouble in taking care of the property as the court may deem proper. SEc. 4. The coroner of each county shall receive, for hold- Of coooler. ing an inquest, three dollars per day for each day necessarily and actually employed; and for all services performed by him in holding such inquest, the same fees as justice of the peace for like services in criminal cases; and for performing the duties of sheriff, the same fees as sheriff; and for every mile necessarily and actually traveled in the discharge of his official duty, ten cents. SEc. 5. The probate judge shall receive for docketing each Ofproba-ojudge cause, ten cents; for entering the appearance of parties, ten cents; for taking affidavit, twenty-five cents; for issuing summons -or other writ under the seal of the court, fifty cents; 560~FEES.[Cu. 99~ for entering order to advertise, twenty-five cents; for filing petition, answer, or any other paper necessary to complete the pleadings in any case, ten cents; for entering return of any writ, ten cents; for issuing subpoena, twenty-five cents; for swearing each witness, ten cents; for entering the attendance of each witness, ten cents; for entering the entire proceedings in the settlement of each case, twenty-five cents for first folio, and fifteen'cents each additional; for entering judgment on journal, twenty-five cents; for recording general verdict, fifteen cents; for entering order on journal, ten cents per folio; for transcribing judgmenits or orders on docket, ten cents; for entering satisfaction of judgment or order on record, twentyfive cents; for entering every special rule, twenty cents; for entering every continuance or discontinuance, fifteen cents; for entering a rule of reference, twenty cents; for giving a copy thereof tunder seal of the court, twenty-five cents; for entering notice of appeal, twenty-five cents; for making out copies of records in cases when required by either party or the law, ten cents per folio; for issuing execution, fifty cents; for docketing the same, ten cents; for issuing orders of sale, twenty-five cents for first folio, and ten cents each additional; for recording return on writs of execution and orders of sale, fifteen cents for first folio, and ten cents each additional; for certificate to which the seal of the court is attached, and not otherwise provided for, fifty cents; for probate and entry of will, one dollar; for issuing letters of administration or guar. dianship under seal, one dollar; for taking bond of executor, administrator, or guardian, fifty cents; for recording bonds, wills, inventories, sale bills, settlements, or rules of court, ordered to be furnished to executors, administrators, or guardians, ten cents per folio; for entering the appointment of appraisers of property, ten cents; for filing account and vouchers of any administrator, executor, or guardian for settlement, ten cents; for entering the same on minutes of the court, ten cents per folio; for entering order of settlement of the same, twenty cents; for examining partial or final settlement of executors, administrator, or guardian, fifty cents when there are not more than twenty vouchers, and two cents for every voucher over twenty; for issuing citation, fifty cents; for giving notice of time of settlements, ten cents; for hearing application in behalf of lunatic or idiot, one dollar; for all other services not herein provided for, the same fees as district clerk for like service. Ce. 99.] EES. 6'I Sm. 6,. The register of deeds shall receive for recording~fregiater~,deeds, mortgages, or other instruments of writing, for the first folio, twenty-five cents-each additional folio, ten cents; for certificate and seal, twenty-five cents; for filing paper and certificate of same, ten cents.; for copy of any deed or other paper, when required by any person or by law, ten cents per folio; for recording town plats of one hundred lots or less, five dollars, and fifty cents for each additional hundred; for search of records, fifteen cents; for each indexing, ten cents. SEC. 7. The district attorney shall receive from the treasury of district attorney. of the county in which his services have been rendered, on allry moneys collected for the county, less than one thousand dollars, five per cent., and two and a half per cent. on all sums over one thousand dollars; for drawing indictment for misdemeanor, if ordered by the grand jury, or when the party is recognized to court by a justice, two dollars and a half; drawing indictment for felony, five dollars; trial for felony or manslaughter, ten dollars; trial for murder, twenty dollars; nolle prosequi, three dollars, except when the nolle prosequi entered on account of informality, in which case there shall be no fee. No fee shall be allowed in any ease where the indictment is quashed. In civil and other eases not herein named, there shall be such fee as the court imay deem reasonable, and shall be certified to by the court; in cases before a magistrate, for murder, five dollars; for felony, three dollars. SEC. 8. The county commissioners shall receive from the county treasury three dollars per day for the time in which they are actually and necessarily employed, to be audiited and allowed by the county clerk, upon statement of account, verified by affidavit. SEC. 9. The county clerk shall receive from the county Of coue'yrk treasury, for clerking for board of county commissioners, and keeping record of their proceedings, two dollars for each day of their session; for certifying order of county board with seal, twentyv-five cents; for recording reports of county treasurer, or other papers recordable, ten cents per folio; for certified copy of any record containing one folio, twenty-five cents, and ten cents for each additional; for making out original tax duplicate, fifteen cents per folio; for each copy thereof, ten cents per folio; for every order drawn on county treasurer, and every certificate to pay money into the treasury, five cents; for filing and entering in a book each receipt for 5 62 FEES- Lc,. 99. money paid into the treasury, or other paper necessary to be s.eoc8. 8s-50.] filed, five cents; for making out abstract of elections and, certified copies thereof, ten cents per folio; for taking and approving bond, twenty-five cents; for issuing license, to be paid by the licensee, seventy-five cents; for transfer of land on tax duplicate, to be paid by the party requesting it, twentyfive cents; for making out tax deed and acknowledgment, one dollar, and for each additional parcel of land described therein, five cents, to be paid by purchaser; for drawing juries, fifty cents; for other services not herein mentioned, the same fees as are allowed to other officers for like. services. f assessor. SEC. 10. 10. The county assessor shall receive from the county [Seeo ch 6~ —12a.] treasury three dollars for each day actually and necessarily employed in his duties, to be audited and allowed by the county commissioners, upon an account verified by affidavit. But the county commissioners shall have power to cut down said account, if they deem it exhorbitant. OJfuivoyoro SEC. -1. The county surveyor shall receive three dollars per day for the time actually and necessarily employed in going to, and making a survey, and returning to his office; for copy of plat of land or certificate of survey, one dollar; making out complete report in all surveys made by authority' for county or township, one dollar; for recording surveys, ten cents per folio; chainman and axmen shall receive one dollar and fifty cents each per day. Ofrountysuper- SEC. 12. The county superintendent of public instruction intendent of pubc nstr,,- shall receive from the county treasury three dollars for each day actually and necessarily employed in his duties, to be audited and allowed by the county commissioners, upon a statement of account verified by affidavit. Of county treas- SEC. 13. That the county treasurer shall receive from the county treasury, for collecting taxes, for the first thousand dollars, six per cent.; for all over one thousand dollars, and less than two thousand dollars, five per cent.; for all over two thousand dollars, and less than three thousand dollars, four per cent.; for all over three and less than four thousand dollars, three per cent.; for all over four thousand and less than twenty thousand dollars, two per cent.; and one per cent. on any sum over twenty thousand dollars; for making distress and sale of goods and chattels for the payment of taxes, the same fees as are allowed to constables for making levy and sale of property on execution, traveling fees to be, CL. 99.] FEES. 563 computed from the seat of justice of the county to the place of making the distress; on all moneys received other than taxes, three per cent. But this act is not to be so construed as to allow said treasurer any fees for paying out and disbursing any money that he may receive as such treasurer. SEc. 14. Notaries Public shall receive for protest and record Of notaries pubof the same, fifty cents; for each notice of protest, fifty cents; for all other services, the same fees as are allowed to the clerk of the district court, for like services. SEc. 15. Each referee shall receive each day, two dollars; Ofreferees. traveling fees the same as are allowed to sheriffs; but this section shall not limit the right of parties to agree upon a higher rate of compensation for the referees in any case. SEC. 16. Each appraiser required by law shall receive fifty Of appraise. cents, and traveling fees the same as are allowed to sheriffs, and when required to serve more than one day in one case, two dollars for each day. SEC. 17. That justices of the peace shall receive for making Ofjustices,f th peace. every entry upon justice's docket required by law, and not herein otherwise provided, ten cents; for entering any order of dismissal, of adjournment, of continuance, of venire for jury or other order, of two folios or less, twenty-five cents, and ten cents for each additional folio; for entering any judgment or satisfaction or transfer of judgment, of two folios or less, twenty-five cents, and ten cents for each additional folio; all transcripts and copies at the rate of ten cents per folio; certificates, twenty-five cents; acknowledgements of deed or other instrument of writing, fifty cents; filing paper, ten cents; approving bond, twenty-five cents; administering each oath, ten cents; jury trial, fifty cents; trial by the court, fifty cents; transmitting papers, twenty-five cents; for issuing any writ, process or order, twenty-five cents; and all names included in one precipe, shall be put in one subpoena, unless the party otherwise request; rendering judgment of the court, twentyfive cents; affidavit, twenty-five cents; performing duties of coroner, same fees as coroner; marrying and making return, three dollars. SEC. 18. Constables shall receive for serving every writ, Ofccnstables. order, process, or notice, not herein otherwise provided for, when the same shall contain the name of but one person, twenty-five cents; for each additional person, fifteen cents; serving a subpcena on witness, twenty five cents; and for each addi 564 FEES. [ClH. 99. tional witness in same case, fifteen cents; appraisal and returns, fifty cents; taking and returning a bond, twenty-five cents; summoning a jury, fifty cents; attending on a jury, twenty-five cents; for each mile necessarily and actually traveled in the service and return of any writ, process, order, or notice, ten cents; but no constructive mileage shall be allowed; for committing to prison, twenty-five cents; bringing prisoner into court, by order, twenty-five cents; attending criminal examinations, two dollars for the first day, and one dollar for each subsequent day; for copy of summons or notice left at the place of abode, fifteen cents; on all money collected on execution four per cent.; for keeping property taken on replevin or attachment, a reasonable compensation, to be allowed by the court. of witnesses. SE. 19. Witnesses shall receive for attending before any court or grand jury, or before any judge, referee, or commissioner, one dollar per day each; for attending before any justice of the peace, fifty cents per day; for each mile necessarily and actually traveled, in going to and returning from the place of attendance, ten cents. of,u.ors. SEC, 20. Jurors shall be paid out of the county treasury, for attending before any court of record, one dollar and fifty cents for each day's attendance, and ten cents per mile necessarily and actually traveled in going to and returning from the place of attendance; each juror or witness sworn before any coroner or justice of the peace, or any inquest taken by him, one dollar; each juror sworn in a justice's court, to be advanced by the party demanding the same, and taxed to the party adjudged to pay the costs, fifty cents. OfolOerk of sl- SEC. 21. The clerk of the Supreme Court shall receive such ysrexe collrt. fees as shall from. time to time be allowed him by said court. Of the district SEC. 22. The fees of the district clerk and sheriff, in any'lork. criminal action, wherein the State fails to convict, or to collect the costs during the next vacation after sentence, shall be paid fees shall be out of the county treasury; but no fees shall be paid by the paid by the county duringi county during the pendency of the suit. pendency of suit,District cledk SEC. 23. The district clerk shall keep a record, in all cases, Ghanl keep a recd. p a rec- of the fees of the witnesses and jurors, for their attendance in the case. cliek of court SEC. 24. Within ten days after the adjournment of a court eha,11 return to the county of record, the clerk thereof shall return to the county ctezk a list of co7, &Ac. clerk, a list of all fees kept by him for witnesses and jurors, CH. 99.] FEES. 565 in criminal cases; the amount due each, and the name of the person to whom due; he shall also, within the same time, return to the county treasurer a list of the amount of money received by him as juror fees, and at the same time pay over such-money to the county treasurer. SEC. 25. When any costs or fee bill for services shall be al-Costsorfeebilis, to whom paid. lowed by a judge of the district court, or by any other officer or officers by this act authorized to allow the same, the amount so allowed shall be paid to the persons respectively entitled thereto. SEC. 26. The clerk of the several district courts in this State, Clerk to requie. security for costs in all civil cases, shall require security for costs of non-resi- ofnon-resideunt. dents of the county before they shall be required to perform any service for which fees are allowedl, but no officer shall be allowed to demand any fee until they are due, except as hereinafter provided. SEC. 27. Each officer herein named shall cause a list of his fees to be posted in his office, under penalty of three dollars for each day he shall neglect. SEc. 28. No officer serving any process shall be entitled to any fees for the same, unless he return, on such process the amount of his fees and the items thereof. SEc. 29. All fees and sums paid by either party for fees of All fees shall tb proved by affidawitnesses and other necessary expenses, in any civil action or vit. proceeding, shall be proved by the affidavit of the party, or of some person knowing the same to have been paid, and all such fees shall be taxed and collected from the party ordered or adjudged to pay the costs. SEC. 380. Any person liable for any costs or fees, shall be entitled to receive, or demand a certified bill of the same in which the items of service and the charges therefor, shall be specially stated. SEC. 31. It shall be the duty of every justice of the peace Duty of justices to tax the cost upon every criminal examination, or trial be- p fore him, in which the county is liable, and certify the same to the board of county commissioners. SEC. 32. It shall be the duty of the sheriff or other officer Duty of horiff. collecting costs on execution in this State, after retaining his own fees, to pay the residue of such costs so collected, to the court from which the execution issued, or the clerk thereof, and take a receipt therefor. SEc. 33. It shall be the duty of the Court, or Clerk receiv 566 FEES. [CH. 100. Duty of court or ing any costs, (as provided for in the twenty-sixth section of clerk receiving (f nu costs, this act,) to hold the same subject to the order of the person entitled thereto, and to pay the same over on request; and, if such fees shall not be called for within one year after having been received, the officer shall pay such fees into the county treasury and take a receipt therefor. SEC. 34. That no officer shall receive any fees for constructive services, or mileage in any case. SEc. 35. A folio shall consist of one hundred words, and two figures shall be counted as one word. Acts repealed. SEC. 36. An act entitled " An act regulating the fees of officers," approved February 12th, 1858; also, an act entitled'' An act regulating the fees of officers, jurors, and witnesses," approved February 11th, 1859; also, an act entitled "An act regulating fees of the clerks of the several district courts in this Territory, and for other purposes," approved February 27, 1860; also, an act entitled " An act regulating the fees of officers, jurors, and witnesses, and for other purposes," passed over the Governor's veto, February 2, 1861; also, an act entitled "An act fixing and regulating the fees of county officers, justices of the peace, and constables," approved June 4, 1861, and all other laws and parts of laws regulating the fees of county officers, district attorneys, justices of the peace, constables, notaries public, witnesses, jurors, referees, or appraisers, heretofore in force, are hereby repealed. SEC. 37. This act to be in force from and after its publication; and immediately upon its approval by the Governor, the Secretary shall cause it to be published in some newspaper published at the capital, which shall constitute such publication. Approved March 6, 1862. CHAPTER C. (Acts of 1862.) AN ACT regulating the rates of Printers' Fees for publishing legal advertisements and laws and to repeal an act entitled " An Act regulating the rates of Printers' Fees for publishing legal advertisements" approved June 3, 1861. Be it enacted by the Legislature of the State of i'ansas: isgel advertise- SECTION 1. That for publishing any legal notice or any order, ments. citation, summons, or any other proceeding or advertisement, CH. 101.] FIRES. 567 required by law to be published in any newspaper, the cost of publishing such advertisement shall not exceed the rate of one dollar per square of two hundred and twenty-five ems, for the Rates of publishing per first insertion, and fifty cents per square of two hundred and square. twenty-five ems, for each subsequent insertion. SEC. 2. All legal advertisements shall be published in a Legal advertisemerts shall be newspaper printed in the county in which the proceedings are published in commenced, if there be one; and if no newspaper be printed county. in such county, then such advertisement shall be published in some newspaper printed in the State having general circulation in such county. SEc. 3. All laws required to be published otherwise than in Lahws, how published. the statute before taking effect, shall be published in one issue of some newspaper printed in the State, and the price to be paid for such publication shall not exceed the rate of one dollar Price not to,xceed one dollar per one thousper one thousand ems. and em-s. SEC. 4. That an act entitled " an act regulating the rates of printers' fees for publishing legal advertisements," approved June 3, 1861, be and the same is hereby repealed. SEc. 5. That all laws passed at the present session of the Rates for publishinf laws. Legislature, and required to be published in some newspaper in the State, shall be paid for at the rates provided for in the third section of this act. SEC. 6. This act shall take effect and be in force from and after its publication in one issue of some newspaper printed in this State. Approved March 3, 1862. CHAPTER CI. (Chapter LXX. February 16, 1860.) AN ACT to Prevqnt the Firing of Woods, Marshes and Prairies. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. If any person shall willfully set on fire any Persons willfully firing prairies woods, marshes or prairies, so as thereby to occasion any dam- c., subject to fine and imprisage to any other person, such person shall, upon conviction onment. thereof,-pay a sum not exceeding five hundred dollars, nor less than fifty dollars, and be imprisoned in the county jail not more 568 FRAUDS AND PURJURIES. [CII. 102. than six months, nor less than ten days; one half of said fine shall go to the complainant, and the other half to the common school fund of the county in which the offence was committed; If fine not paid. and, in case of the neglect or refusal of any person so convicted to pay the fine above specified, he shall be. in addition to the imprisonment above imposed, confined in the county jail or territorial prison, one day for every dollar thereof, until said fine be discharged. Damage to other SEC. 2. If any person shall set on fire any woods, marshes person to be recovered in an or prairies, so as thereby to occasion any damage to any other person, such person shall make satisfaction for such damage to the party injured, to be recovered in an action. ayavfire his own SEC. 3. This act shall not extend to any person setting on farm in night time. fire, in the night time, anything on his own farm, as often as occasion may require, if done without intention to set on fire the adjacent woods, marshes or prairies, not occupied by such person. Perisons mayfire SEC. 4. Nothing herein contained shall be so construed as to against fire. prevent any person from firing against fire, so as to protect his or her property from being destroyed. Whoseduty to SEC. 5. It shall be the duty of all sheriffs, justices of the give information peace, constables and other sworn officers, to use all necessary means to convey information to the proper authorities of any violation of this act. SEc. 6. All other acts conflicting with this act is [are] hereby repealed. SEc. 7. This act to take effect and be in force from and after its passage. Approved February 16, 1860. CHAPTER CII. (Chapter LXXI. February 11, 1859.) AN ACT for the Prevention of Frauds and Perjuries. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas Deedsof trust SECTION 1. That all gifts and conveyances of goods and for own use void. chattels, made in trust to the use of the person or persons making the same, shall be and hereby are declared to be void and of no effect. SEC. 2. Every gift, grant or conveyance of lands, tenements, CH. 102.] FRAUDS AND PURJURIES. 569 hereditaments, rents, goods or chattels, and every bond, judg- Papersfr ade ment or execution, made or obtained with intent to defraud intent vo~id creditors of their just and lawful debts or damages, or to defraud, or to deceive the person or persons, who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect. SEC. 3. Where any loan of goods and chattels shall be pre- Goods loanedfor five years, proptended to have been made to any person with whom (or those erty of rpossession, unless resclaiming under him) possession shall have remained for theervationin writing and recordspace of five years, such goods and chattels, shall be deemeded. reord the property of the person having had such possession, unless a reservation of the right of such goods and chattels shall have been made to the lender, in writing, and such writing shall have been recorded within six months from the time of making such loan, in the register's office for the county, where one or both of the parties shall then have resided. SEC. 4. No leases, estates or interests, either of freehold or Leases not ltoger than ten term of years, or any uncertain interest of, in or out of lands,years. tenements or hereditaments, exceeding ten years in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized, by writing, or by actand operation of law. SEC. 5. No action shall be brought, whereby to charge the Actions not to be brought updefendant, upon any special promise, to answer for the debt, onverbal agreement, to be perdefault or miscarriage of another person, or to charge anyformed after ono year. executor or administrator, upon any special promise, to answer damages out of his own estate, or to charge any person, upon any agreement made upon consideration of marriage, or upon any contract, or sale of lands, tenements or hereditaments, or any interest in, or concerning them, or upon any agreement, that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be chargedunlessagreemert in writing. therewith, or some other person thereunto, by him or her law- mg fully authorized. SEC. 6. This act to take effect and be in force from and after the first day of June next. Approved February 11, 1859. 570 FUGITIVES FROM JUSTICE. [CH. 103. CHAPTER CIII. (Chapter LXXIII. February. 11, 1859.) AN ACT relative to Fugitives from other Territories or States. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: When Governor SECTION 1. Whenever the executive of any other State or to issue warrant. Territory, shall demand of the executive of this Territory any person as a fugitive from justice, and shall have complied with the requisites'of the act of Congress in that case made and provided, it shall be the duty of the executive of this Territory to issue his warrant, under the seal of the Territory, directed To WlOm mi-e,0-'Ato any sheriff, coroner, or other person whom he may think fit to entrust with the execution of such warrant. Wht shlln bhe SEC. 2. The warrant shall authorize the officer or person to set forth in the warrant, whom it is directed, to arrest the fugitive anywhere within the limits of this Territory, and convey him to any place therein named, and shall command all sheriffs, coroners, constables and other officers to whom the warrant may be shown, to aid and assist in the execution thereof. Warer ant now SEC. 3. Every warrant so issued, may be executed in any exeouted. part of the Territory, and the officer or person to whom it is Power and duty directed, shall have the same power to command assistance of officer. therein, and in receiving and conveying to the proper place any person duly arrested by virtue thereof, as sheriffs and other officers by law have in the execution of civil or criminal process directed to them, with like penalties on those who refuse their assistance. Prisonerl may e SEC. 4. The officer or person executing such warrant may, confined in jail, when. when necessary, confine the prisoner arrested by him, in the jail of any county through which he may pass in conveying such prisoner to the place commanded in the warrant, and the Keeper to re- keeper of such jail shall receive and safely keep such prisoner, eprisoner until the person having him in charge shall be ready to proceed on his route. Expenses, how SEC. 5. The expenses which may accrue under the foregoing pai d. sections of this act, being first ascertained to the satisfaction of the executive, shall, on his certificate, be allowed and paid out of the territorial treasury. Persons charged SEC. 6. When any person, within this Territory, shall be on the oath of another, fleeing charged, on the oath or affirmation of any credible witness, fiom another a State for crime, before any judge or justice of a court of record, or a justice of warrant to issue. 571 FUGITIVES FROM JUSTICE. [CII. 10O3. the peace, with the commission of any crime in any other State or Territory of the United States, and that he fled from justice, it shall be lawful for the judge or justice to issue his warrant for the apprehension of the party charged. SEc,. 7. If, upon examination, it shall appear to the judge or when ilprixon justice that the person charged is guilty of the crime alleged, ed or baled. he shall commit him to the jail of the county; or, if the offence is bailable, take bail for his appearance at the next term of the district court in the county. SEC. 8. The judge or justice shall proceed in the examin- Proceedingrs examination. tion in the same manner as is required when a person is brought before such officer charged with an offence against the laws of this Territory, and shall reduce the examination to writing, and make return thereof as in other cases, and shall, also, send a copy of the examination and proceedings to the Copy of eaaiin-l ation to be sent governor of this Territory, without delay. to the (overnor. SEc. 9. If, in the opinion of the governor, the examination Dnty of G(ov-erncontains sufficient evidence to warrant the finding an indict- or, ment, he shall forthwith notify the executive of the State or Territory in which the crime is alleged to have been committed, of the proceedings against the person arrested, and that he will be delivered on demand, without requiring a copy of an indictment to accompany the demand. SEC. 10. When a demand shall be made for the offender, the Offender to blet delivered upon governor shall forthwith issue his warrant, under the seal of the demand. Territory, to the sheriff' of the county wherein the party charged is committed or bailed, commanding him to surrender the accused to such messenger as shall be therein named, to be conveyed out of the Territory..SEc. 11. If the accused shall be at large, on bail or other- If on bail, sheriff authorized toe wise, it shall be lawful for the sheriff to arrest him forthwitharrest. anywhere within the Territory, and to surrender him agreeably to the command of the warrant. SEc. 12. In all cases where the party shall have been ad- District, court may discharge mitted to bail, and shall appear according to the condition of ordeliverc-I~~~~ ea~~~~cused, w hen. his recognizance, and he shall not have been demanded, the district court may discharge the cognizance or continue it, according to the circumstances of the case, such as distance of the place where the offence is alleged to have been committed, the time since the arrest, the nature of the evidence, and the like. SEC. 13. In no case shall the party be kept in prison or held To be kept in to bail beyond the end of the second term of the district court 572 FUNDS-SCHOOL AND UNIVERSITY. [CH. 104. after the arrest; and, if no demand is made for him within that time, he shall be discharged. Jorfnitzre of re- SEC. 14. When any such recognizance shall be forfeited, it shall enure to the benefit of the Territory. iProsecuty for SEC. 15. When a complaint shall be made against any persons as provided by this act, the judge or justice shall take from the prosecutor a bond to the clerk of the district court, with sufficient security to secure the payment of the costs and expenses which may accrue by occasion of the arrest and detention of the party charged, which bond shall be certified and returned, with the examination, to the office of the clerk of the district court. ost, collected, SEC. 16. Upon the determination of the proceedings in that how. court, the clerk may issue fee bills, which shall be served on the principal securities in the bond, by the sheriff, in the same manner as other fee bills; for which service the sheriff shall be allowed the same fees as for serving notices. Execution to is- SEC. 17. If the costs and charges are not paid on or before sue, when. the first dayv of the next term of the district court, nor any cause shown why they should not be paid, the clerk may issue execution for the same, against the parties on whom the fee bills were served. Clerk may sue SEC. 18. Nothing in the two preceding sections shall be conon bond for recovery of costs strued to prevent the clerk from instituting suit on such bond, and charges. for the recovery of the costs and charges. Penalty for re- SEC. 19. No person shall take or remove any fugitives from moving fugitiveU. this Territory, or do any act towards such removal, unless authorized to do so, pursuant to the provisions-of this act, and any person violating the provisions of this section shall forfeit and pay to the aggrieved party a sum not less than five hundred dollars. SEC. 20. This act to take effect and be in force from and after the first day of June next. Approved February 11, 1859. CHAPTER CIV. (Chapter XXXVIII. June 4, 1861) AN ACT to provide for the 3Management and Investment of the State School Fund and the University Fund. Be it enacted by the -Legislature of the State of Kansas: All school lands SECTION 1. The proceeds- of all lands that have been or may be now or hereafter C[. 104.] FUPNDS: SCHOOL AND UNIVERSITY. 573 granted by the United States to the State for the support of to be gra.nte, schools, and the five hundred thousand acres of land granted to ptall beho lrthe new States, under an act of Congress distributing the pro- fend. ceeds of public lands among the several States of the Union, mission.l approved September 4, A. D. 1841, and all estates of persons dying without heir or will, and such per cent. as may be granted by Congress on the sale of lands in this State, shall be the common property of the State, and shall be a perpetual school fund, which shall not be diminished, but the interest of which, together with all the rents of the lands, and such other means as the Legislature may provide, by tax or otherwise, shall be invariably appropriated, to the support of common schools. SEc. 2. All funds arising from the sale or rents of lands Ofuniversity lands and lands granted by the United States to the State, for the support of a for university State University, and all other grants, donations or bequests, [issiA.tcfAd. either by the State or individuals, for such purpose, shall remain a perpetual fund, to be called the University Fund, the interest of which shall be appropriated to the support of the State University. SEC. 3. The State Superintendent of Public Instruction, Sec- Whoconstitute a board of cornmretary of State and Attorney General, shall constitute a board missoners of school fund. of commissioners, for the management and investment of the State school funds and university fund; any two of said commissioners shall be a quorum. SEC. 4. The commisioners shall have the power, and it is Commissionero,ohave power to hereby made their duty, from time to time, to make loan make loans. any and all the moneys enumerated in the preceding sections, to the State of Kansas, or to citizens of said State, under such conditions as is hereinafter prescribed. SEC, 5. That, upon the application of an officer of the State, Commissioners' may invest authorized to effect a sale of State bonds, said commissioners schooylorunivermay invest the State school funds and the university funds in Kansas State bonds. the bonds of the State of Kansas, said bonds to bear interest at a rate not less than seven per cent. per annum, said commissioners buying said bonds at the cash rates of the New York stock exchange. SEC. 6. The commissioners may loan, to any citizen of the commissioners may loan to citiState, any sum not less than one hundred-nor greater than one zens. thousand dollars, for a term of years not to exceed five, at the legal rate of interest, the interest being computed from the date of loan to the first day of January next thereafter, and shall be payable in advance; and the interest on all mortgages, 37 574 FUNDS: SCHOOL AND UNIVERSITY. [CH. 104. interest payable for the loan of money, of the school funds and university fund, in advance. shall be computed from the first day of January of each year, and shall be payable in advance. Citizens borrow- SEC. 7. Any citizen of the State, borrowing money from the ing money shall give mortgage school or university funds, shall be required to secure the State onil real estate. by giving mortgage on real estate, in double the amount of the sum loaned; said real estate to be clear of all incumbrance. Mlust produce ti- SEC. 8. It shall be the duty of all persons applying for a tie papers and certificate of loan, to produce to said commissioners, for their inspection, register of deeds their title papers, showing a clear and valid title, in fee simple, without lien or incumbrance, for the property so offered in pledge, and not derived through any executor or administrator's sale, or sale on execution, and the certificate of the register of deeds of the county in which the land lies, showing that there is no conveyance of nor incumbrance on said land in that office. Such person shall, also, before he receives the money to be iustsmakeoath. loaned, make oath to the truth of an abstract of his title to said land, and that there is no incumbrance or better claim, in law or equity, that he knows or believes, upon or to said land. Applicant must SEC. 9. That, for the purpose of determining the value of the produce a certifi- 9 ate of assessed land to be mortgaged by a person applying for a loan, it shall value of his land be the duty of the applicant to produce, to the commissioners, a certificate from the clerk of the county in which the land is situated, of the assessed value of said land for taxation. Mortgages shall SEC. 10. The mortgages taken for loans, as aforesaid, shall be considered as of record, frombe considered as of record, from the date thereof, and shall date. have priority of all mortgages or conveyances not previously recorded, and of all liens not previously incurred, in the county Commnissioners where the land lies; and it shall be the duty of the commisgages recorded. sioners to have all such mortgages recorded with due diligence. The expense thereof shall be borne by the applicant for such loan, and be retained out of the money borrowed. Loans refunded SEC. 11. All loans refunded and all interest shall be paid and interest to e a be paid into into the State treasury, and the treasurer's receipt shall be State treasurys ad treceipts fledafiled with said commissioners, who shall give the payer a duplicate thereof, and make the proper entries on their books; and, Mortgage fully whenever the amount due on any mortgage shall be fully paid, paid, commis- ml sioners shall in- and the treasurer's receipt filed therefor, the said commissiondorse. ers shall indorse on the note and mortgage, that the same has been fully satisfied, and surrender such note and mortgage to the person entitled to the same; and, on production of the same, with the indorsement thereon, the register of deeds of :IC. 104.] FUNDS:: SCHOOL AND UNIVERSITY. 575 the proper county shall enter satisfaction upon the record thereof. SEC. 12. On failure to pay interest or principal when due, on o failure to pay interest or prinany such note or mortgage, the commissioners shall order the cipal when due, Attorney General to proceed to collect the same by suit, to be tto collecytgener conducted in the name of the board of commissioners of school funds, in accordance with the provisions of existing laws regulating the foreclosure of mortgages arnd sales of mortgaged premises; Provided, That, in such suits, when judgments are Judgment renrendered, no stay of execution shall be allowed. dered, no stay. SEC. 13. That all bonds of the State, and all notes and mort- Bonds and notes gages, given by citizens of the State for the loan of school and university funds, shall state that fact on their face; and said bonds, notes, mortgages, and all evidences of debt arising orBonds, notes and mortgages growing out of the management and investment of school andnot assignable. university funds, shall not be assignable or transferable, by indorsement or delivery, by said board of commissioners, and all such assignments or transfers are hereby declared to be void, Assignments and transfers and of- no effect. void. SEC. 14. All moneys belonging to the State school and uni- All school and university funds versity funds, shall be deposited with and paid to the State tobe deposited, Treasurer, and be subject to the order of the board of coMr-treasurer. missioners. SEC. 15. The said commissioners shall keep a record of all Commissioners shall keep a retheir proceedings, including a detailed statement of the condi- cord of all their tion of the State school and university funds under their control, showing amount of fund, how invested, to whom loaned, when due, how secured, interest and rents paid, and every other act in any manner connected with the management and investment of said funds; and the State Superintendent of Public Instruction shall make report to each regular session of the Legislature. SEC. 16. That the State Superintendent of Public Instruction Bonds. notes and other papers shall be the custodian of all books, papers, bonds, notes, mort- shall be kept by State superingages and evidences of debt, arising out of the managementtendent. and investment of the State school and university funds, by said board of commissioners. SEC. 17. Said board of commissioners shall receive such pay Compensatioe. for their services as may be prescribed by law. SEC. 18. This act to take effect and be in force from and after its publication. Approved June 4, 1861. 576:, ~~ —a~GAME-GUARDIANS AND WARIDS. [Cao 105-106. CHAPTER CV. (Chapter XXXIX, ]May 10, 1861.) AN ACT to provide for the Protection of Game.Be it enacted by the Legislature of the State of Kansas Shall not trap SECTION 1. That it shall be unlawful for any person or pergame between April and Sep- ons to shoot, kill or trap, within this State, any prairie chicktember. ens, quails, partridges, wild turkeys and deer, between the first days of April and September, of each year. Shall be finedi SECT 2. That any person convicted of violating this act, and pay costs of prosecution. shall be fined in a sum not exceeding five dollars, and shall, be liable for costs of prosecution. Justices shall SEC. 3. That justices of the peace shall have jurisdiction jrdtion of the offences under this act, and all proceedings shall be in the name of the State, and shall be regulated as other criminal proceedings of a minor character, before justices of the peace. Feines paid into SEC. 4. That all fines imposed utnder this act shall be paid treasury for the use of common to the justice before whom the proceedings are had, who shall9, within thirty days, pay the sarme into the county treasury, for the use of the commnon school fund of the county in which the offence shall have been committed. Twenty free- SEC. 5. That, whenever the county board of commissioners holders may render this law shall have received a petition from at least twenty freeholders inoperative. of such county, praying that this act be inoperative in such, county, they may, in their discretion, so proclaim; and, after the date of such proclamation, no provision of this act shall be in force for twelve months. When in force. SEC. 6. This act to be in force from and after its publication. Approved May 10, 1861. CHAPTER CVI. (Acts of 1859, Chapter LXXv.) AN ACT Concerning Guardians and Wards. Be it enacted by the Governor and Legiselative Assembly of the Territory of Kansas: atrher-guardian SECTION 1. The father is the natural guardian of the perof child; if fathof childdadth onS of his minor children. If he dies or is incapable of actmother the guar- dian. ing, the mother becomes the guardian. Guardian ap- SEC. 2. The natural and actual guardian of any [minor] pointed by will. By probate court child may, by will, appoint another guardian for such minor. has a family for which he provides, specifying by name one dffidhavi.e more persons, members of such family, and the place of their residence, is sufficient evidence thereof to authorize his discharge by the jailor. 644 JUSTICE OF THE PEACE IN CIVIL CASES. [CH. 121. oConstable liable SEC. 155. A constable is liable to the party in whose favor execution in cer- an execution issued to him, for the amount thereof, in the fol-. tain cases. lowing cases: First, Where he suffers thirty days to elapse without making a true return thereof to the justice, and paying to him or the party entitled, the money collected thereon by him. Second, When he willfully and carelessly omits to levy on property within thirty days, or, if the defendant be liable to be imprisoned, then to arrest and commit him to the jail of the county within thirty days. All sales shallbe SEC. 156. All property taken in execution under the proadvertised. visions of this act, shall be advertised for sale at four of the most public places within the township where such property was seized, at least ten days previous to the time appointed for such sale, which sale shall be held between the hours of ten o'clock, A. M., and four o'clock, P. -M., at the house or on the premises where such property was taken, or at one of the most public places within the township. Constables and SEC. 157. It shall not be lawful for any justice of the peace justices not allowed to pur who issued the execution, or for the constable holding the execution, to purchase, either directly or indirectly, any property Penalty. sold on such execution; and any justice or constable who shall offend against the provisions of this section, shall forfeit and pay for every such offence iany sum not exceeding one hundred dollars nor less than five dollars, to be recovered by civil action in the name of the Territory of Kansas, before any court having jurisdiction thereof, for the use of the county where such offence was committed; and shall, moreover, be liable to the action of the party injured thereby. Compensation SEC. 158. When any cattle or live stock shall be taken in for keeping of live stock. execution, it shall be the duty of the justice of the peace who issued the execution, or other justice charged with the duty of collecting the judgment whereon such execution issued, to allow the constable, for keeping of the same, a reasonable compensation, to be taxed and collected as other costs in the suit. Constable shall SEC. 159, When a constable shall levy on and sell any ma.ke return of property sold. goods and chattels, he shall mnake out and annex to his return to the execxution, in virtue of which such sale was made, a true inventory of all such property and of each article thereof, P. alty. and the price at:which the same was sold; and, for each and every neglect to return a true and accurate schedule or inventory of property sold, or remaining unsold for want of OCI. 121.] JUSTICE OF THE PEACE IN CIVIL CASES. 645 bidders, or other just cause, and, if sold, the price at which the same was sold, each and every constable guilty of such neglect shall forfeit and pay, on conviction thereof, any sum not exceeding one hundred dollars, to be recovered by action in the name of the Territory of Kansas, for the use of the party injured thereby, to be prosecuted before any court having cognizance thereof. SEC. 160. Where a constable shall have levied on any Property not sold, how disposgoods and chattels which remain unsold for want of bidders or ed of. other just cause, it shall be his duty to return with the execusion a schedule of all such goods and chattels; and the justice shall, unless otherwise directed by the. party for whom such execution issued, or his agent, immediately thereafter issue an order, thereby commanding any constable to whom the same may be directed or delivered, to expose such property to sale; which sale and the proceedings thereon shall be the same as if such property had been sold on the original execution. SEc. 161. Any constable having levied on goods and chat- Constable mna permit defendtels, of which the party against whom the execution issued to ant to retiln property levied retain the possession, is hereby authorized to take such se- on. curity for his own indemnity as he may require, that such property shall be delivered at the time and place appointed for the sale thereof. SEC. 162. In all cases where any lands may have been let, Landlords a{ll'~ tenants not afreserving rent in kind, and when the crops or emblements fected by saleof nland, when. growing or groxvn thereon shall be levied on or attached by virtue of any execution, attachment or other process against the landlord or tenant, the interest of such landlord or tenant, against whom such process was not issued, shall not be affected thereby; but the same may be sold, subject to the claim or interest of the landlord against whom such process did not issue. SEc. 163. In cases where the constable shall make it ap-J,,tices_,,,.yis sue further propear, to the satisfaction of the justice, that he has been css, wheln. deprived of an opportunity of levying an execution within the time prescribed by this act, or otherwise prevented from making the whole of the money therein required to be made, and shall make return, to the justice who issued the same, to that effect, such justice is hereby authorized and required to issue further process of execution for the amount or balance remaining unsatisfied, which shall be served and returned, in all respects, as other executions are under this act. 646 JUSTICE OF THE PEACE IN CIVIL CASES. [CH. 121. Constables, how SEC. 164. Constables shall be elected as provided by law, and shall continue in office until their successors are elected and qualified. Ta.ke oath. SEC. 165. Every constable, before lie enters upon the duties of his office, shall take an oath or affirmation, before a person authorized to administer the same, to support the Organic Act of this Territory, and faithfhlly to discharge his duties as constable during his continuance in office, according to the best of his skill and ability. uive undeta — SEc. 166. Every constable, within ten days after his eleching". tion, and before lhe shall take the oath of office, shall give an undertaking to the Territory of Kansas, in a sum not exceeding two thousand dollars nor less than five hundred dollars, with one or more sureties, resident in the proper township, Conditions. such as the supervisors thereof shall approve, conditioned fbr the safe keeping a-nd paying over, to the proper person or authority, all moneys which may be collected or received by him, or whlich may otherwise come into his office, and for the due, honest and faithful discharge and performance of. all and singular, his duties as such constable, according to law, during his continuance in office. Tro e filed. SEc. 167. When such undertakingi shall have been given to the satisfaction of the township supervisors, the township clerk shall nmake an entry of the same, and file the same in his office. Yacanlcy. SEC. 168. Whenever a vacancy shall occur in the office of constable, in any township, by death, removal, resignation or non-acceptance of the person elected, or where there shlall be a failure to elect, the township supervisors shall appoint a suitable person to fill such vacancy until. the next annual election for constable, and until a successor be elected and qualified. SEc. 169. The constable, as appointeod, shall take a like oath and give a like undertaking as is required in other cases of constables. alay appoint SEC. 170. A justice of the peace may appoint a constable special consta ble. or constables for a special purpose, either in civil or criminal cases, whenever such appointment may become necessary, in the following cases: Whlere there is no constable in the township; in the case of disability of one of the regular constables in the township; where the constable therein is a party to the suit; when, from the pressure of official business, the constables therein are not enabled to perform the duties required by CH. 121.] JUSTICE 0r THE PEACE IN CIVIL CASES. 647 the office. The justice making the appointment shall make a memorandum thereof on his docket, and shall require the person appointed to take an oath as required in other cases. SEC. 171. The person so appointed by the justice, after Authority, &-. taking such oath, shall have the same authority, be subject to the same penalties, and entitled to the samle fees as other constables. SEC. 172. Such justice shall stand as surety, and shall be Justices respon. sible for acts. in that character liable, le and his sureties, for any neglect of duty or any illegal proceedings onil the part of such constable, so by him appointed. SEC. 173. All constables shall be ministerial officers in Constables,iinisterial officers justices' courts in their respective counties, and civil and in the county criminal process may be executed by -them througlhout the county, under the restrictions and provisions of the law. SEc. 174. It shall be the duty of every constable to serve Duties. all warrants, writs, precepts, executions and other process to him directed and delivered, and, in all respects whatever, to do and perform all things pertaining to the office of constable. SEC. 175. In discharging their duties, constables mlayM ayl cytall aid of county. to their aid the power of the county, or such assistance as may be necessary. SEC. 176. It shall be the duty of every constable to make Shall milae s rturn of all produe return of all process to him directed and delivered, atthe cesses, &e. proper - office and on the proper return day thereof; or, if the judgment be docketed in the district court or appealed, upon which he has an execution, on notice, to return the execution, stating thereon such fact. SEC. 177. It shall be the duty of every constable, on the shall nototime of receiving and receipt of any writ or other process, (subpoenas excepted,) to execulting writ. note thereon the tinme of receiving the same; he shall, also, state in his return on the same the time and manner of executing it. SEC. 178. No constable shall make a return on any process Shall not make return of "not of "not found " as to any defendant, unless he shall have found" on writ, except when. been, once at least, at the usual place of residence of the defendant, if such defendant have any in the county. SEC. 179. It shall be the duty of every constable to appre- Shall apprhend hend, on view or warrant, and bring to justice all felons and disturbers and violators of the criminal laws of this Territory; to suppress all riots, affrays and unlawful assemblies 648 JUSTICE OF THE PEACE IN CIVIL CASES. [Cu. 121. which may come to his knowledge, and generally to keep the peace in his proper county. Authority over SEC. 180. In serving all process, either civil or criminal, county. and in doing his duties generally, when not otherwise restricted by law, the authority of a constable shall extend throughout the county ill which he may be appointed; and, in executing and serving process issued by a justice of the peace, he shall have and exercise the same authority and powers over goods and chattels and the persons of parties as is granted by law to a sheriff [or] coroner, under like process issued from courts of record. Committing SEC. 181. When it shall become the duty of the constable prisoner to jail. to take the body of any person to the jail of the county, he shall deliver to the sheriff or the jailor a certified copy of the execution, commitment or other process whereby he holds such person in custody, and return the original to the justice who issued the same, which copy shall be sufficient authority to the sheriff or jailor to keep the prisoner in jail until discharged by due course of law. Shall pay all SEC. 182. Constables shall pay over, to the party entitled money received byhimtowhom. thereto, all money received by them in their official capacity, if demand be made by such party, his agent or attorney, at any time before he returns the writ upon which he has received it; if not paid over by that time, he shall pay the same to the justice when he returns the writ. Penaltyfor fail- SEC. 183. Constables shall be liable to ten per cent. pening to make re. turn, &c. alty upon the amount of damages for which judgment may be entered against them for failing to make return, nmaking afalse return, or failing to pay over money by them collected or received in their official capacity; and such judgment must include, in addition to the damages and costs, the penalty herein provided. Codeof civil pro- SEC. 184. The provisions of the act entitled "'An act to cedure applicable, when. establish a Code of Civil Procedure," which are, in their nature, applicable to the jurisdiction and proceedings before justices, and in respect to which no special provision is made by statute, are applicable to the proceedings before justices of the peace. Justice shall SEC. 185. Every justice of the peace must keep a book keep a docket; entries. denominated a docket, which shall be furnished by the supervisors of the proper township, in which must be entered by him the proper title of every action in which the writ is served, or, when the parties voluntarily appear, the date of the writ, the CH. 121.] JUSTICE OF THIE PEACE IN CIVIL CASES. 649 time of its return, and, if an order to arrest the defendant or attach property was made, such fact must be stated, together with the affidavit upon which such order was made; the filing of the bill of particulars of either party and nature thereof, and, when not of too great length, the same [shall] be entered at length on the docket; which of the parties, if either of them, appear at the trial; every adjournment, stating upon whose application, whether on oath or consent, and to what time. When trial by jury is demanded, the demand must be stated and by whom made; the names of the jurors selected and the time appointed for the trial; the names of the jurors who appear and of those sworn; the names of all witnesses sworn and at whose request; the exceptions to the ruling of the justice on questions of law, taken by either party; the verdict of the jury and when received. If the jury disagree and are discharged, that fact must be stated. The judgment of the justice, specifying the items of costs included and the time when rendered; the issuing of the execution, and orders to sell when issued, and to whom the renewals thereof, if any, were made; the return and when made, and a statement of any money paid to the justice and by whom; the giving of a transcript to be filed in the clerk's office and when given; if appeal be taken, the undertaking and the time of entering into the same, and by which party taken; the satisfaction of the judgment and the time of satisfying the same. SEC. 186. The several particulars in the last section specified Same. must be entered under the title of the action to which they relate, and at the time when they occurred, except that the bill of exceptions in regard to the ruling on questions of law or evidence need not be entered until after the judgment, unless required by the justices or one of the parties. Such entries in a justice's docket, or a transcript thereof, certified by the justice or his successor in office, shall be evidence to prove the facts stated therein. SEC. 187. Each justice must keep an alphabetical index to hall keepan inhis docket, in which must be entered the names of the parties dex. to each judgment, with reference to the page of the entry. The names of the plaintiffs must be entered in the index, in the alphabetical order of the first letter of the family names. He shall number the cases progressively upon his docket, and he shall correspondingly number the cases in each case; he shallShll keep all papers in each keep the entire papers in each action together, and in packages action together. 650 JUSTICE OF THE PEACE IN CIVIL CASES. [CI. 121. of a proper and convenient size, and inll the order in which the cases are numbered on his docket. Every justice SEC. 188. It is the of the diepoasit SEC. 88. It is the duty of every justice, upon the expira(locket, papers tion of his term of office, to deposit with his successor his offs~ and files, &c, with his succes-cial docket, as well his own as those of his predecessors, which sor. may be in his custody, together with all files and papers, laws and statutes pertaining to his office, there to be kept as public records and property. If there be no successor elected and qualified, or, if the office becomes vacant by death, removal from the township or otherwise, before his successor is elected and qualified, the dockets and papers in the possession of such justice must be deposited with the nearest justice in the township, if any there be; and, if there be none, then with the nearest in the county, there to be kept until a successor shall be chosen and qualified, then to be delivered over to such successor on request. The justice re- SEC. 189. A justice receiving by succession or on deposit ceivir g them shll give re- any such docket, papers and laws, shall, if requested, give a receipt therefor to the person from whom he receives the same. Have power to SEC. 190. The justice with whom the docket of another may caketdecthaveifbe deposiited either during a vacancy or as the successor, is oame effect asif,,bypro'ad- hereby authorized, while having such docket legally in his possession, to issue execution on any judgment there entered and unsatisfied, and not docketed in the district court, in the same manner and with the same effect as the justice by whom the judgment was rendered might have done, to take bail in appeal, to issue certified transcripts of judgments on such docket, and proceed, in all cases, in like manner as if the same had been originally had or instituted before him. when two or SEC. 191.'When two or more justices are equally entitled to more justices are eutitled to ffice, be deemed the successor in office of a justice, the supervisors of how decided. the township shall designate which justice is to be deemed the successor of the justice going out of office or whose office has become vacant, and shall enter a certificate in the last docket of the justice going out of office or whose office is vacant, of their determination, before the same is delivered to such successor. in case of sick- SEC. 192. In case Of sickness or other disability or necessary absence of a justice at the time appointed for trial, another justice of the same township may, at his request, attend in his behalf, and shall, thereupon, become vested with the power, for the time being, of the justice before whom the summons was returnable. In that case, the proper entry of the proceeding CII. 121.] JUSTICE OF THE PEACE IN CIVIL CASES. 651 before the attending justice, subscribed by him, must be made in the docket of the justice before whom the writ was returnable. If the case be adjourned, the justice before whom the summons was returnable must resume jurisdiction. SEC. 193. The summons, execution and every other paper Prpes madeor issued must bee made or issued by a justice, must be filled up, without a blank, illed. to be filled by another; otherwise, it is void. SEC. 194. A justice, at the request of a party, and, on being May depiute a perison to serve a satisfied that it is expedient, may specially depute any discreetsummoons. person of suitable age, and not interested in the action, to serve a summons or execution, with or without an order to arrest the defendant or to attach property. Such cldputation must be in writing on the process. SEC. 195. The person so deputed has the authority of a con- Authority.(i stable in relation to the service, execution and return of such r process, and is subject to the same obligations, but there can be no fee for his services taxed in the bill of costs. SEC. 196. A justice may punish, as for a contempt, persons Acts punished as guilty of the following acts, and no others. Disorderly, con-for contempt. temptuous or insolent behavior toward the justice, tending to interrupt the due course of a trial or other judicial proceeding; willful resistance, in the presence of the justice, to the execution of a lawful order or process made or issued by him. SEc. 197. A warrant of arrest may be issued by such justice, May issue,yal'rant of arrest for on which the person so guilty may be arrested and broughtp eerslonsogilt.' before the justice, when an opportunity to be heard in his defence or excuse must be given. The justice may thereupon discharge him, or may convict him for the offence, and adjudge a punishment by fine or imprisonment, or both; such fine not to exceed twenty dollars, and such imprisonment ten days. SEC. 198. The conviction, specifying particularly the offence Conviction, oe., entered on dockand the judgment thereon, must be entered on his docket; aet. warrant of commitment to the jail of the county, until the fine be paid, or for the term of imprisonment. may then be issued. Such warrant must contain a transcript of the entry in the docket, and the same must be executed by any constable to whom it may be given and by the jailor of the county. SEC. 199. When a person, intending to bring an action before Non-residents to give security be.a justice of the peace, is a non-resident of the county in which ftre actieon i commened~4. he intends to commence such action, the,justice may, previous to his issuing process, require sucl person to give security for the costs of suit, which may be done by depositing a sum of 6352 JUSTICE OF THE PEACE IN CIVIL CASES. [CI. 111. money deemed by the justice to be sufficient to discharge the costs that may accrue in the action, or by giving an undertaking, with surety approved by the justice, payable to the adverse party, for the payment of all costs that may accrue in the action. If plaintiff after SEC. 200. If any plaintiff or plaintiffs, after commencing an commencing anl action shall re action before a justice in the county in which he or they reside, move out of the the county, sall for remove out of the county, the justice may require such plaintiff costs, or plaintiffs to deposit a sum of money equal to the costs that have accrued and that probably will accrue, or require, in place thereof, that such party give sufficient surety for all costs which have accrued or which may accrue in the action, and, in default to do either, shall enter a non-suit against the plaintiff or plaintiffs. ptionns founded SEC. 201. In all actions instituted before a justice of the sealed bilel,eo, peace, founded upon any bond, bill, promissory note or other to fils thereon ith justice. instrument of writing for the payment of a sum of money certain, upon which the whole amount of money therein promised Proceedings. is due, it shall be the duty of the plaintiff, his agent or attorney, to file said bond, bill, promissory note or other written evidence of indebtedness, upon which such suit is brought, with such justice of the peace, and, if upon trial, judgment shall be entered thereon in favor of the plaintiff, such bond, bill, promissory note or instrument of writing, shall be retained by the justice so rendering judgment, who shall indorse thereon the sum for which he shall have entered judgment: Provided, The same shall in no wise exceed one hundred dollars, and shall subscribe his name thereto. And, upon payment or tender of such judgment, together with the costs accruing thereon, it shall not be lawful for the plaintiff to institute any other suit or suits upon said bond, bill, promissory note or other instrument of writing, for the recovery of any further sum or sums, the payment of which is secured by the same bond, bill, promissory note or other written evidence of indebtedness: Provided, That when an appeal shall be taken from the judgment of such justice, it shall be his duty to deliver or transmit any bond, bill, promissory note or other written evidence produced before him on trial, to the clerk of the district court to which such cause shall have been appealed, on or before the second day of the term of the court next after taking such appeal: Provided, also, That nothing herein contained shall be construed to lessen or in arty wise affect the right which any creditor may now have CB. 122.] JUSTICE OF THE PEACE IN CIVIL CASES. 653 to demand from any justice of the peace any joint and several obligations for the purpose of prosecuting any party to said obligation, other than the party against whom judgment may have been rendered. SEC. 202. It shall not be lawful for any justice of the peace No justice Sha to purchase any judgment upon any docket in his possession, Judgment. and, for so doing, for every such offence, such justice shall forfeit and pay a sum not more than fifty dollars nor less than Penalty. ten dollars, to be recovered by an action before any court having jurisdiction thereof, and, when collected, shall be paid into the treasury of the township where such offence was committed. SEC. 203. The provisions of this act do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment and determination in all respects as if it had not been adopted. SEC. 204. This act to take effect and be in force from and after the first day of June next. Approved February 8, 1859. CHAPTER CXXII. (Chapter LXXIX. Acts of 1859.) AN ACT entitled "An Act to amend an Act entitled' An Act Regulating the Jurisdiction and Procedure before a Justice of the Peace, and the Duties of Constables in Civil Cases."' Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. Stock or interest owned by the defendant in any Stock or interet owned by defend~ company, and, also, debts due him and property of his in the ant may be ley. ted upon. hands of third persons may be levied upon in the manner provided for attaching the same, and the proceeding by garnishment shall be the same as nearly as practicable; but the earnings of the debtor for his personal services, at any time Earnings of within three months next preceding the issuing of the execu- able. tion, cannot be so applied, when it is made to appear, by the debtor's affidavit or otherwise, that such earnings are necessary for the maintenance of a family supported wholly or partly by his labor. SEC. 2. When, upon the return of process, or at any time changeofovea,., before the trial shall have been commenced, either party shall Lch. 121-7,1 file, with the justice of the peace before whom any cause is 42 654 JUSTICE OF THE PEACE. [CH. 123. instituted or trial is pending, an affidavit stating that he cannot, as he verily believes, have a fair and impartial trial before such justice, on account of bias or prejudice of the said justice against the said afilant, the trial of the case shall be changed to the next nearest justice of the peace, and the case shall be proceeded with as now provided by law. SEC. 3. This act to be in full force from and after its passage. Approved February 27, 1860. CHAPTER CXXIII. (chapter LXXXVI. Acts of 1860.) AN ACT to define the Duties of Justices of the Peace in Cases of Breach of the Peace. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Jurisdiction of SECTION 1. Justices of the peace may have jurisdiction of justices of the peace in cases ofall cases of simple assault and battery and affrays: Provided, assallt, C. however, That nothing herein contained shall be construed to extend to cases of assault and battery and affrays which, by any of the laws of this Territory, are punishable by imprisonment, or where the damages, alleged to have been sustained, exceed the sum of one hundred dollars: And provided, further, That nothing herein contained shall prevent a prosecution of such assault and battery or affray by indictments, in the courts of this Territory having criminal jurisdiction. Arrest and ex- SEC. 2. Said justices of the peace shall and they are hereby amination beifre justice of authorized and empowered to cause to be arrested any person peace. or persons charged with any offence against the peace or quiet of the county or neighborhood in which he may reside, for any assault and battery or affray, riots, row or unlawful assembly; and, if the said justice, on a full examination of the matter before him, shall find that the offence is such as would subject the person or persons thus charged to imprisonment or fine exceeding one hundred dollars, he shall require such person or persons to give bail for their appearance at the next term of the court for the county in which the offence was committed having criminal jurisdiction. Warrant, when SEC. 3. Whenever a complaint shall be made to a justice of hcuted. the peace, on the oath or affirmation of any person competent Cu. 123.] JUSTICE iOF THE PEACE. 655 to testify against the accused, that an assault, battery, affray or other breach of the peace has been or is about to be committed, the justice shall forthwith issue a warrant for the arrest of the offender, which warrant shall be executed by the sheriff of the county or constable of the township, or by some competent person specially deputed by the justice for that purpose. SEc. 4. If any justice of the peace shall have personalJustice shall isue warrant upknowledge that any of the offences mentioned in the last sec-on personal tion are:about to be commnitted, he shall issue his warrant and proceed as is directed in that section; and if any such offence is committed, threatened or attempted in his presence, he shall immediately arrest the offender or cause it to be done; and, for this purpose, no warrant or process shall be necessary, but the justice may summon to his assistance any sheriff, coroner or constable, and all other persons there present, whose duty it shall be to aid the justice in preserving the peace, arresting and securing the offenders, and all such as obstruct or prevent the justice or any of his assistants in the performance of their duty. SEC. 5. When any person shall be brought before a justice Justiceto har and determinae of the peace, under the provisions of this act, it shall be the causes. duty of the justice to hear and determine, in a summary mode, the complaint alleged against the defendant. SEC. 6. Upon good cause shown, the justice may postpone Potpo,,n,,u t:. the trial of the cause to a day certain, in which case he shall trial. require the defendant to enter into a recognizance, with suffi- Recognizance. cient security, conditioned that he will appear before the justice at the time and place appointed, then and there to answer the complaint alleged against him.. SEc. 7. If the defendant shall fail or refuse -to enter into re- Commitmen4 to cognizance, the justice shall commit him to the common jail ofjail. the county, there to remain until the day fixed for the trial of the complaint alleged against him. SEC. 8. In case of the breach of any recognizance entered Breach of reeogt into as aforesaid, the same shall be certified and returned toniance. the court having criminal jurisdiction, to be proceeded on according to law. SEc. 9. If, in the progress of any trial before a justice of When proceedthe peace under the provisions of this act, it shall appear that ingto beSnsthe accused ought to be put upon his trial for an offence not cognizable before a justice of the peace, the justice shall immediately stop all further proceedings before him, and proceed as 656 JUSTICE OF THE PEACE. [Cii. 123. in other criminal cases exclusively cognizable before the court having criminal jurisdiction. Attendance of SEC. 10. In all cases arising under this act, it shall be the injured party and witnesses duty of the justice of the peace, acting in the case, to summon enforced by attachment. the injured party, and all others whose testimony may be deemed material, as witnesses at the trial, and to enforce their attendance by attachment, if necessary. Jury of sixr. SEC. 11. All trials before a justice of the peace, under this act, shall be by a jury of six competent men, who, if they find Fine. the defendant guilty, shall assess the fine to be paid by him, which shall not be less than one dollar or more than one hundred dollars, according to the nature of the offence. Prosecutor's SEC. 12. When proceedings are commenced, under the proname entered on p docket. visions of this act, on the information or complaint of the injured party, his name shall be entered by the justice on his docket as prosecutor, and, if the defendant shall be discharged or acquitted, the costs shall be paid by the county. Upon conviction SEC. 13. In all cases of conviction, under the provisions of may be conmmitted,or execution this act, the justice shall enter judgment for the fine and costs iued. against the defendant, and may commit him until the judgment is satisfied, or issue execution on the judgment to the use of the county. Dicharge. SEC. 14. Any defendant, committed under the provisions of this act, may be discharged in the same manner as if he had been committed by the district court. Appeal. SEC. 15. Any person convicted under this act, may appeal to the court having criminal jurisdiction, if he shall, on the day of the rendition of the judgment, file an affidavit stating that he verily believes himself aggrieved by the verdict and judgment, and also enter into a recognizance, with sufficient securities, householders of the county, which recognizance shall be in the form and with the condition required in appeals from a justice of the peace in civil cases. atairnof appeal SEC. 16. All appeals, taken ten days or more before any term of the court having criminal jurisdiction of the county, shall be returned to that term; but, if taken within ten days next before the commencement of a term, shall be returnable to the second term. Upon appeal, SEC. 17. When an appeal is taken and perfected, according,ecognized. to this act, it shall be the duty of the justice to cause all material witnesses to enter into a recognizance, in the sum of fifty dollars each, conditioned for their appearance to testify in the CH. 12 3.] JUSTICE OF THE PEACE. 657 cause at the term to which the appeal is returnable, and shall, on or before the first day of such term, file in the office of the clerk of the court having criminal jurisdiction, a copy of the entries on his docket, with a copy of the process and affidavit of appeal, and the original recognizance of the defendant and witnesses, duly certified. SEC. 18. The clerk of the court having criminal jurisdiction Cause to be heard at return shall enter the cause on his docket, and, if the appeal be term on its n rregularly taken, the cause shall be heard on the merits at the return term, unless good cause be shown for a continuance, and the costs in both courts shall abide the event of the trial in the court having criminal jurisdiction. SEC. 19. All appeals may be taken -at any time within ten Appeal taken days after the day of trial before the justice. in ten days. SEC. 20. If the judgment of the justice shall be affirmed, or, Judgment J m,..... a..1affirmed carries upon a trial in the court having criminal jurisdiction, the de- costs in both fendant shall be convicted and any fine assessed, judgment urts shall be rendered for such fine and the costs in both courts, against the defendant and his securities. SEC. 21. If the judgment in the court having criminal juris- Execution in diction be not satisfied in thirty days after the rendition thirty days. thereof, execution nmay issue against the defendant and his securities for the fine and costs aforesaid, which shall be made out of the property of the defendant, if sufficient thereof be found; if not, then out of the property of said securities. SEC. 22. In all cases not specially provided for by this act, Proceedings, how regulated, the process and proceedings before the justice shall be governed by the laws regulating proceedings in justices' courts in civil cases. SEC. 23. Repealed Oh. 124-4 SEC. 24. Any justice of the peace, sheriff, coroner or con- egleetof duty, stable, who shall willfully neglect or refuse to perform any dutyw enjoined on him by this act, shall be deemed guilty of a misdemeanor in office, and shall be subject to a fine not exceeding fifty dollars. SEC. 25. Fines and penalties incurred under this act, in cases Fines, how ecovered. not otherwise provided, may be recovered before any justice of the peace by action. SEC. 26. When a trial, under the provisions of this act, shall Witnesses for continued trial, be continued by the justice, it shall not be necessary for the verbally notified justice to summon any witnesses who may be present at the continuance, but said justice shall verbally notify such witnesses 658 TUSTICE OF TlHE PEACE. [CN. 124, as either party may require, to attend before him to testify in the cause on the day set for trial, which verbal notice shall be as valid as a summons. SEC. 27. This act to take effect and be in force from and after the first day of June next. Approved February 10, 1859. CHAPTER CXXIV. (Acts of 1860, Chapter LXXX.) AN ACT to amend an act entitled " Ain Act to Define the Duties of Justices of the Peace in cases of Breach of the Peace," approved February 10, 1859. Constable to re- SECTION 1. Any constable, charged with the collection of turn execution and money col- fines under the provisions of the act to which this is an amendlected within thirty days. ment, shall return the execution to the justice, within thirty days from its date, and pay over to the justice the money collected thereon. Justice pay all SEC. 2. All fines imposed and collected by any justice, under fLnes hle collects to county treas-the provisions of this act or the act to which this is an amendurer, taking reeJpts for same. ment, shall be paid by him to. the treasurer of the county where the offence was committed, for the use of such county, within thirty days after the same shall have been collected; and. the justice shall take duplicate certificates therefor, one of which he shall deposit with the county clerk. If ustice fails SEc. 3. If any justice shall fail to pay over such moneys as to pay over. aforesaid, it shall be the duty of the treasurer of the proper county to prosecute such delinquent justice for the recovery of the same, together with the penalty of ten per centum thereon, in an action of debt, before any court having jurisdiction thereof. Section 23 re- SEC. 4. Section twenty-three of an act entitled " An act to pealed. [See ch. 123, Define the Duties of Justices of the Peace in Cases of Breach sec. 23.] of the Peace," is hereby repealed. SEC. 5. That this act to take effect and be in force from and after its passage. Approved February 27, 1860b( C1H. 125-126.] JUSTICE OF THE PEACE. 659 CHAPTER CXXV. (Session, 1862.) AN ACT conferring certain jurisdiction of Justices of the Peace, in the City and County of Leavenworth. Be it enacted by the Legislature of the State of Kansas: SECTION 1. It shall be lawful for any justice of the peace, in Any justice may receive the civil the county of Leavenworth, to whom the same may be deliv- donketofl.S. I Adams, late reered, to receive the civil docket and papers pertaining to the corder. same, of M. S. Adams, late recorder of the city of Leavenworth, and justice of the peace, and thereupon to issue execu-ay isue exe clutions thereon, tion on the judgments remaining unsatisfied on said docket, and do all other acts necessary to be done in the collection thereof, in the same manner and with the same authority as if said judgment bad been rendered by said justice; Provided, that the costs that may be collected thereon, shall be paid over Costs. to the persons who shall appear from the record to be entitled to receive them. SEC. 2. That, at the expiration of the term of office of said Shall deliver to sUncessor. justice, who shall receive the said docket, the said docket and papers shall be delivered to his successor in office, who shall be his successor in office for the purposes mentioned in this act. SEC. 3. This act to take effect and be in force from and after the time of its publication, and immediately after its approval by the Governor, the Secretary of State shall cause the same to be published twice in some daily paper published in Leavenworth county, which shall constitute such publication. Approved February 22, 1862. CHAPTER CXXVI. (Session, 1862.) AN ACT prescribing the number of Justices of the Peace in Easton township, Leavenworth county. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the number of Justices of the peace in Easton township, Leavenworth county, is hereby reduced to two. 660 JUSTICE OF THE PEACE. [Cu. 127-128. SEC. 2. That so much of an act entitled an act to increase the number of the justices of the peace, in certain townships, approved June 4th, 1861, as is in conflict with this act, is hereby repealed. SEC. 3. This act shall be in force from and after its passage. Approved March 1, 1862. CHAPTER CXXVII. (Session 1862.) AN ACT to increase the number of Justices of the Peace, in Blue Rapids and Vermillion Townships. Be it enacted by the Legislature of the State of -Kansas: SECTION 1. That the number- of justices of the peace, in Blue Rapids and Vermillion townships, county of Marshall, is hereby increased to three. SEC. 2. This act shall take effect and be in force from and after its passage. Approved March 5th, 1862. CHAPTER CXXVIII. (Session, 1862.) AN ACT to increase the number of Justices of the Peace in N3armiton Township, Bourbon County. Be it enacted by the Legislature of the State of Kansas: Election of ad- SECTION 1. That the number of justices of the peace, in ditional justices ofthe peace. Mariton township, Bourbon county, is hereby increased to three; and the legal voters of said township are hereby authorized, at their next regular election for township officers, to elect such additional justice of the peace, who shall hold his office until the regular election for township officers, on the fourth Monday of March, A. D. 1863, when three justices of the peace in said township shall be elected. SEC. 2. This act shall take effect and be in force from and after its passage. Approved March 5th, 1862. C(D. 129-130.] KANSAS VALLEY BANK —LAND. 661 CHAPTER CXXIX. (Session, 1862.) AN ACT to amend an act entitled "An act to incorporate the Kansas Valley Bank," approved February 19th, 1857. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That section (29) twenty-nine of an act entitled I,sue not to be above two hun" An act to incorporate the Kansas Valley Bank," approved dred per cent. of February 19th, 1857, be so amended as to read as follows: SEc. 29. The bills and notes issued by this Bank shall in no case exceed two hundred per cent. above the amount of the capital stock actually paid in, or three dollars of its paper for one dollar of the capital stock actually paid in gold and silver; and said notes shall not be of any intermediate denomination Denomination of notes. between one and two, two and three, three and five, five and ten, ten and twenty, twenty and fifty, or fifty and one hundred dollars. SEC. 2. This act shall take effect from its publication, and immediately upon its approval, the Secretary of State shall cause the same to be published in the "Daily State Record," which shall constitute such publication. I hereby certify that the above bill became a law March 2nd, 1862, without the approval of the Governor according to the provisions of Constitution, it having remained in his hands the required time without his returning it with his objections. J. W. ROBINSON, Secretary of State. CHAPTER CXXX. (Chapter LXXXV, February 15, 1860.) AN ACT to Establish a Legal Method by which to Subdivide a Section of Land, as surveyed by the United States Surveyors, into quarter sections. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That, in the sub-division of sections of land, as Methodofsubdividing land. surveyed by the United States surveyors, into quarter see- LSeech. 19 —9, tions, the following method shall be followed, to-wit: The surveyor shall proceed to connect the points of position of the monuments marked one-quarter S., commonly known as quar 662 LANDLORDS AND TENANTS. [CiH. 131. ter corner monuments, which are upon opposite sides of the section, by tracing a straight line from one to the other; he shall then ascertain the point of intersection of the two straight lines above mentioned, and the said point of intersection shall be the point of position of the corner, common to the four quarters of the section sub-divided. SEC. 2, All acts or parts of' acts inconsistent with this act are hereby repealed. SEC. 3. This act to take effect and be in force forom and after its passage. Approved February 15, 1860. CHAPTER CXXXI. (Chapter XLVI, Acts 1858.) AN ACT containing several Provisions regarding Landlords, Tenants, Lessors and Lessees. Be it enacted by thie Governor and Legislative Assembly of the Territory of Kansas: Estates at will, SECTION 1. That estates at will may be determined by one how determined. [See ch. 41-11.] month's notice in writing, delivered to the tenant. Tenancies atwill SEC. 2. A tenancy at will can not arise or be created witharise by all expresscontract. out an express contract; and all general tenancies, in which General, tesancies, when deem- the premises are occupied by the consent, either express or ed tenancies from year to constructive of the landlord, shall be deemed tenancies from year. [See ch. 41-10.] year to year. Tenancies from SEC. 3. All tenancies, from year to year, may be deyear to year, how determined. termined by at least three months' notice given to the tenant, [See ch. 41-11.] prior to the expiration of the year; and in all tenancies which, by agreement of the parties, express or implied, are from one period to another of less than three months' duration, a notice equal to the interval between such periods, shall be sufficient. If tenantrefuse SEC. 4. If a tenant at will, or from year to year, or for a to pay rent, ten ditys notice to shorter period, neglect or refuse to pay rent when due, ten quit shall determine the lease, days' notice to quit shall determine the lease, unless such rent be paid at the expiration of said ten days. When notice to SEC. 5. Where the time for the determination of a tenancy quit unnecessary is specified in the contract, or where a tenant at will commits waste, or in the case of a tenant at sufferance, and in any case where the relation of landlord and tenant does not exist, no notice to quit shall be necessary. COH. 131.] LANDLORDS AND TENANTS. 663 SEC. 6. Notice, as required in the preceding sections, may Notice, how be served on the tenant, or if he cannot be found, by delivering the same to some person of proper age and discretion, residing on the premises, having first made known to such person the contents thereof. SEC. 7. A conveyance of real estate. or of any interest A conv.yance of real estate valid therein, by a landlord shall be valid, without the attornment without the atof the tenant; but the payment of rent by the tenant, to the ant. grantor, at any time before notice of sale, given to said tenant, shall be good against the grantee. SEC. 8. The attornment of a tenant to a stranger shall be The attornment'b~ ~ of a tenant to a void, and shall not effect the possession of his landlord, unless stranger void. it be made with the consent of the landlord or pursuant to a judgment at law, or the order or decree of a court. SEC. 9. Sub-lessees shall have the same remedy upon the Remedy of sublessees. original covenant against the chief landlord, as they might have had against their immediate lessor. SEC. 10. Alienees of lessors and lessees of land shall have Of alienee of lessors and lessthe same legal remedies in relation to such lands as theirees. principal. SEC. 11. Rents from lands granted for life or lives, may be Rents1 of lands for life, how rerecovered as other rents. covered. SEC. 12. A person entitled to rents dependant on the life of Rents recooerable after death another, may recover arrears unpaid at the death of that other. of aparty. SEC. 13. Executors and administrators shall have the same Remedies and liabilities of exremedies to recover rents, and be subject to the same liabili- ecutors and adI;~~~~~ m~sninistrators. ties to pay them as their testator and intestates. SEC. 14. The occupant, without special contract of any Occupants without special conlands, shall be liable for the rent to any person entitled thereto. tract liable for rent. SEc. 15. If a joint tenant, or a tenant in common, or ten- ofjoint teDants, or tenants in ant in co-parcenary, have by consent, management of the oommon or in estate, and make with knowledge and without objection of coPrcenary. his co-tenant or co-parcener, shall contribute rateably thereto. SEc. 16. That a joint tenant, or tenant in common, or ten- Same. ant in co-parcenary, may maintain an action against his cotenant or co-parcener, or their personal representatives for receiving more than his just proportion. SEc. 17. That rents from lands are collected as other debts. Rents colleebts SEC. 18. That a person seized of an estate in remainder or [See cle 132-3.] A person seized reversion may maintain an action for waste or trespass, for of anestate in remainder or reinjury to the inheritance, notwithstanding an intervening es- versintain acttaon for liwaste or tate for life or years. trespass. 664 LAWS AND JOURNALS. [CI. 133. Laws repealed. SEC. 19. All laws and parts of laws inconsistent with the provisions of this act, are hereby repealed. SEC. 20. This act to be in force from and after its passage. Approved February 8, 1858. CHAPTER CXXXII. (Session 1862.) AN ACT in relation to Landlbrds and Tenants. Be it enacted by the Legislature of the State of Kansas: Rent due to be a SECTION 1. That any debt by note or account, created for lien on the crop rent of land and so specified, shall be a lien on the crop growing or made on the premises, in preference to all other debts from the date of the contract. Lien to continue SEC. 2. The lien shall continue for four months after the four months. debt becomes due, and until the termination of any suit commenced within that time for such rent. How enforced. SEC. 3. The lien may be enforced by original attachment [See c. 131-7.] issued on affidavit that the rent is due and unpaid, or by judgment at law againt the tenant, and execution to be levied on the crop in whosoever hands it may be. Liability of pur- SEC. 4. The person entitled to the rent may recover from chaser of crop, the purchaser of the crop, or any part of it, with notice of the lien, the value of the property, so that it does not exceed the rent and damages. SEC. 5. This act to take effect and be in force from and after its publication. Approved February 25, 1862. CHAPTER CXXXIII. (Sessson 1862.) AN ACT relating to the Publication and Distribution of the Laws in force at the close of the present Session of the Legislature. -Be it enacted by the Legislature of the State of fKansas: Duty of the Sec- SECTION 1. It shall be the duty of the Secretary of State, retary of State. immediately after the adjournment of the present session of the Legislature, to furnish to the printer having the contract for printing the laws for the current year: CE. 133.] LAWS AND JOURNALS. 665 First, A true copy of the Constitution of the United States. Second, The Treaty of Cession, whereby the French Republic ceded the Territory of Louisiana to the United States. Third, The Organic Act of the Territory of Kansas. Fourth, The Constitution of the State of Kansas. Fifth, The Act for the Admission of Kansas into the Union. Seventh, The following Laws, to-wit; Chapter 8, relating to acknowledgments, oaths and deposi- Ackowedgtions, approved February 27, 1860. Chapter 1, an act authorizing actions to be brought in cer- Actions. tain cases, approved February 8, 1859. Chapter 13, an act concerning apprentices, approved JanU- Apprentices. ary 31, 1859. Chapter 13, an act to regulate voluntary assignments with Assignments. a view to insolvency, approved February 27, 1860. Chapter 14, an act relating to attorneys at law, approved Attorneys. January 31, 1859. Chapter 2, an act providing for the election of district attorneys and defining their duties, approved June 4, 1861. Chapter 122, an act relating to the authentication of Stat- Authentication. utes, records, office papers, etc., approved February 28, 1859. Chapter 15, an act regulating actions against boats, ap-Boats. proved February 2, 1859. Chapter 20, an act respecting bonds, notes and bills of e- Bondsand notes. change, approved February 2, 1859. Chapter 3, an act to provide for the incorporation of ceie- Cemeteries. tery associations, approved June 4, 1861. Chapter 24, an act concerning plats of cities and towns,Plats. approved February 11, 1859. Chapter 25, an act to establish a code of civil procedure, Codecivil. approved February 11, 1859. Chapter 26, an act amendatory to an act to establish a code of civil procedure, approved February 10, 1859. Chapter 26, an act to amend an act entitled an act to establish a code of civil procedure, approved February 25, 1860. Chapter 27, an act to amend an act entitled an act to establish a code of civil procedure, approved February 27, 1860. Chapter 27, an act to establish a code of criminal procedure, Code criminal. approved February 9, 1859. Chapter 28, an act regulating crimes'and punishments of armes. crimes against the persons Of individuals, approved February 3, 1859. 6C6 LAWS AND JOURNALS. [CH. 133. Chapter 27, an act defining and providing for the punishment of certain crimes therein named, approved May 21, 1861. Commissioners. Chapter 29, an act providing for the appointment of' commissioners to take depositions in other Territories and States, approved February 7, 1859. Chapter 15, an act relating to master commissioners, became a law, May, 1861. Conveyances. Chapter 30, an act regulating conveyances, approved February 1, 1859. Contracts. Chapter 33, an act regulating contracts and promises, approved February 9, 1859. Chapter 34, an act making valid contracts for the sale of' improvements on public lands, approved February 9, 1859. Convicts. Chapter 35, an act respecting convicts, approved February 11, 1850. Convention. Chapter 17, an act providing for joint convention of the two Houses of the State Legislature, approved May 7, 1861. Academies. Chapter 36, an act to enable universities and other institutions, societies and companies to become bodies corporate, approved February 9, 1859. Counties and Chapter 28, an act relating to counties and county ofircers, county officers. approved February 25, 1860. New counties. Chapter 19, an act relating to the organization of new counties, approved June 4, 1861. Duties of county Chapter 49, an act respecting the duties of county and and township officers. township officers, approved February 27, 1860. Supreme court. Chapter 21, an act to organize and define the jurisdiction of the supreme court, approved May 21, 1861. Courts of justice Chapter 22, an act relating to the organization of courts of justice and their powers and duties, approved April 24, 1861. District court Chapter 23, an act regulating the terms of the district court in the several judicial districts, approved May 20, 1861. Clerk of courts. Chapter 24, an act defining the duties and prescribing the qualification of the clerks of the district courts, became a law May 18, 1861. Probate court. Chapter 25,an act to establish and define the jurisdiction of probate courts, approved June 3, 1861. Damages. Chapter 25, an act providing for the collection of damages in certain cases, approved February 9, 1858. Descent and di- Chapter 63, an act concerning descents and distributions, tributio. approved February 8, 1859. Divorce and al- Chapter 62, an act concerning divorce and alimony, apimony. roved February 27 1860. proved February 27, 1860. CH. 133.] LAWS AND JOURNALS. 667 Chapter 29, an act supplementary to an act concerning divorce and alimony, approved February 17, 1860); approved June 4, 1861. Chapter 63, an act relating to dower, approved FebruaryDower. 27, 1860. Chapter 91, an act to restrain dram shops and taverns andlDram shops. regulate the sale of intoxicating liquors, approved February 11, 1859. Chapter 28, an act regulating elections and to prescribe the Elections. qualifications of voters and to prevent illegal voting, approved, May 13, 1861. Chapter 31, an act to provide for the election of State, dis- State ofticers,&c. trict and other officers, approved May 21, 1861. Chapter 32, an act providing for the election of township Township ofi. officers, approved May 23, 1861. cers. Chapter 34, an act to prescribe the manner of contesting the Contested elections. election of State and county officers, members of the Legislature and other officers, approved June 3, 1861. Chapter 35, an act to create a State board of equalization, State board of approved June 3, 1861. equalization. Chapter 2, an act respecting executors and administrators, Executors and of their appointments and removal from office, approved February 3, 1859. Chapter 67, an act exempting certain property from sale Exemptions. on execution or other process, approved February 7, 1859. Chapter 65, an act to amend an act exempting certain property from sale on execution or other process, approved February 11, 1859; approved February 27, 1860. Chapter 66, an act amendatory to an act to exempt certain property from sale upon execution or other process, approved February 27, 1860. Chapter 64, an act relating to executions returned not satis- Execitions. fied, approved February 15, 1860. Chapter 69, an act legalizing wire fence, approved February Wile fence. 24, 1860. Chapter 37, an act providing for division fence, approved Division fesice. May 13, 1861. Chapter 69, an act regulating ferries, approved February Ferries. 8, 1859. Chapter 17, an act regulating the fees of officers, jurors and Fees. witnesses, and for other purposes, became a law Febru'ary 2, 1861. 668 LAWS AND JOURNALS. [CH. 133. Printer's fees. Chapter 36, an act regulating the rates of printers' fees for publishing legal advertisements, approved June 3, 1861. Prairie fires. Chapter 70, an act to prevent the firing of woods, marshes and prairies, approved February 16, 1860. Statute of frauds Chapter 71, an act for the prevention of frauds and perjuries, approved February 11, 1859. Fugitives. Chapter 73, an act in relation to fugitives from justice from other Territories and States, approved February 11, 1859. School fund. Chapter 38, an act to provide for the management and investment of the State School Fund, approved June 4, 1861. Game. Chapter 39, an act to provide for the protection of game, approved May 10, 1861. Guardians. Chapter 75, an:act qconcerning guardians and wards, approved February 8, 1859. Habeas corpus. Chapter 76, an act regulating proceedings on writs of habeas corpus, became a law June 1, 1859. Horses and Chapter 37, an act respecting horses and mules, approved February 9, 1858. Illegitimate Chapter 82, an act for the maintenance of illegitimate children. children, approved February 10, 1859. nuclosures. Chapter 78, an act regulating inclosures, approved February 11, 1859. Chapter 72, an act supplementary to an act regulating inclosures, approved February 11, 1859; approved February 2, 1860. Indians. Chapter 73, an act to restrain intercourse with the Indians, approved February 27, 1860. Chapter 74, an act making citizens of certain Indians in Kansas Territory, approved February 23, 1860. Interest. Chapter 75, an act regulating the interest of money, approved February 16, 1860. Invasion. Chapter 76, an act to prevent and punish armed invasion from or into this Territory, approved February 27, 1860. Jails. Chapter 83, an act concerning county jails, approved February 11, 1859. Jury. Chapter 84, an act providing for the selection and summoning of grand and petit jurors, approved February 11, 1859. Justice of the Chapter 86, an act to define the duties of justices of the peace. peace in cases of breaches of the peace, approved February 10, 1859. Chapter 87, an act regulating the jurisdiction of procedure before justices of the peace, and duties of constables in civil cases, approved February 8, 1859. CH. 133.] LAWS AND JOURNALS. 669 Chapter 79, an act entitled an act to amend an act regulating the jurisdiction and procedure before justices of the peace, and the duties of constables in civil cases, approved February 27, 1860. Chapter 80, an act [to] amend an act entitled an act to define the duties of justices of the peace in cases of breaches of peace, approved February 10, 1859; approved February 27, 1860. Chapter 26, an act relating to the organization of justices' Justices courts. courts and their powers and duties, approved May 22, 1861. The first two sections of chapter 121, an act adopting the Commonlaw. common law as the rule of action in this Territory, and regulating the authentication of Statutes and the taking effect thereof, approved February 11, 1859. Chapter 48, an act for the distribution of the Laws Distribution of Journals of the Legislature, approved June 4, 1861. laws. Chapter 46, an act regulating landlords and tenants, ap- Landlords and proved February 8, 1858. tenants. Chapter 85, an act to establish a legal method by which to Division of a divide a section of land, as surveyed by the United Statessatlon u. s surveyor, into quarter sections, approved February 15, 1860. Chapter 90, an act for securing liens to mechanics and others, Mechanics'liens (from and including section twenty-four,) approved February 3, 1859. Chapter 88, an act to create a lien in favor of mechanics and others, and to regulate the proceedings to enforce the collection of the same, approved February 27, 1860. Chapter 89, an act for the benefit of livery stable keepers, Livery stables. approved February 27, 1860. Chapter 92, an act concerning luinatics and habitual drunk- Lunatics and ards, approved February 8, 1859. drunkards. Chapter 93, an act in relation to marriages, approved Feb- Marriage. ruary 7, 1859. Chapter 94, an act to protect the rights of married women, Married women. and in relation to the liabilities incident to the marriage relation, approved February 7, 1859. Chapter 90, an act to amend an act entitled an act to protect the rights of married women, and in relation to the liabilities incident to marriage relation, approved February 18, 1860. Chapter 96, an act relating to minors, approved Februaryminor. 8, 1859. 43 670 LAWS AND JOURNALS. [CIE. 133, Militia. Chapter 49, an act to organize and discipline the militia, approved April 22, 1861. Chapter 50, an act supplementary to an act entitled an act to organize and discipline the militia, approved May 7, 1861. Mortgages. Chapter 97, an act to provide for the foreclosure of mortgages, approved February 11, 1859. Chapter 26, an act to regulate chattel mortgages and bills of sale of personal property, approved February 25, 1860. Mutilation of Chapter 72, an act to prevent the mutilation or alteration laws. of acts and bills, approved February 11, 1859. Notaries public Chapter 101, an act respecting notaries public, approved February 3, 1859. Nuisances. Chapter 53, an act to prevent nuisances, approved February 12, 1858. Oaths. Chapter 102, an act regulating oaths, and prescribing the form of oath of officers, approved February 7, 1859. Chapter 51, an act prescribing the form of oaths or affirmation and qualification of officers, privates, and musicians, approved May I0, 1861. Officers' duties. Chapter 58, an act defining the powers and duties of certain State officers, approved June 3, 1861. Partition. Chapter 92, an act to provide for the partition of real estate, approved February 23, 1860. Partners' es- Chapter 93, an act to facilitate the settlement of the estate tates. of deceased partners, approved February 24, 1860. Partnership. Chapter 94, an act for the formation of limited partnerships, approved February 27, 1860. Prison bounds. Chapter 96, an act to establish prison bounds, approved January 31, 1860.'risoners. Chapter 97, an act relating to the commitment of prisoners, approved February 24, 1860. State printing. Chapter 61, an act to provide for the State printing, altp proved May 15, 1861. Horses. Chapter 101, an act for the protection of horses and other animals, approved February 27, 1860. Unclaimed prop. Chapter 57, an act relative to the disposition of unclaimed erty. property, approved February 12, 1858. Iuo vwarranto. Chapter 106, an act concerning writs of quo warranto, approved February 10, 1859. aleofreales- Chapter 102, an act relating to sales of real property, approved February 27, 1860. Redemption of Chapter 65, an act to provide for the redemption of real real estate; e-. 133.] LAWS AND JOURNALS. 671 estate, sold under execution, order of sale, or other final process, approved June 4, 1861. Chapter 107, an act to recover public records, approved Public record. February 10, 1859. Chapter 104, an act defining the mode of laying out and Roadse establishing roads, approved February 27, 1860. Chapter 75, an act to establish the salaries of the Statesalaries. officers, justices of the supreme court, judges of the district court, and officers of the legislature, approved May 20, 1861. Chapter 76, an act for the regulation and support of common Schools. schools, approved -, 1861. Chapter 77, an act to promote medical science, approvedMedical science. May 7, 1861. Chapter 79, an act relating to settlers upon lands without Trespassing setany legal right thereto, approved June 4, 1861. tiers. Chapter 80, an act to authorize the formation of county Agricultural oand town agricultural and horticultural societies, approved cieties May 10, 1861. Chapter 120, an act concerning the construction of statutes, Construction on approved February 11, 1859. statutes. Chapter 82, an act to provide for the protection of stock stock from contagious diseases, approved May 1, 1861. Chapter 83, an act to regulate the taking up and posting of Strays strays, approved May 23, 1861. Chapter 112, an act to provide for the regulating of the run- Swine ning at large of swine, approved January 28, 1860. Chapter 113, an act supplemental and amendatory to an act to provide for the running at large of swine, approved January 28, 1860-approved February 24, 1860. Chapter 114, an act to provide for the assessment of taxes, Taxes. approved February 27, 1860. Chapter 116, an act relating to the. payment of taxes, approved February 27, 1860. Chapter 128, an act relating to township and townshiPTownshiprofaofficers, approved February 27, 1860. eors. Chapter 72, an act to regulate the entries and disposal Of Townsites. town sites, approved February 12, 1858. Chapter 80, an act providing for the incorporation of towns and villages, approved February 1, 1859. Chapter 90, an act prescribing the duties and liabilities Of Statetreasurer. the State treasurer, approved April 26, 1861. Chapter 91, an act to prevent and punish trespass on school Trespass on lands, approved June 4, 1861. school lands. 672 LAWS AND JOURNALS., [E. 183.. Trespasses. Chapter 128, an act to prevent certain trespasses, approved February 10, 1859. Trsts,. Chapter 73, an act concerning trusts and power, approved February 6, 1858. Vacancyinoffice Chapter 93, an act to provide for filling vacancies in the of county assessor. office of county assessor, approved June 4, 1861. Weights and Chapter 75, an act regulating weights and measures, approved February 12, 1858. Widows. Chapter 97, an act providing for the protection of widows and minor children, approved June 5, 1861. Chapter 98, an act for the relief of widows, approved May 20, 1861. wills. Chapter 131, an act regulating wills, approved February 9, 1859. Wool. Chapter 131, an act for the encouragement of wool growing, approved February 25, 1860. Provided, that if any of the above laws are repealed at the present session of the legislature, the same shall not be published. Laws of the SEC. 2. The secretary of State shall furnish to the printer, present session to be furnished as aforesaid, all laws of a general nature passed at the present printer. session of the legislature, and it shall be his duty to classify the same, and cause them to be inserted in their proper place, in connection with the laws, and in the manner provided in the first section of this act. What laws'shall SEC. 3. It shall not be lawful for the secretary of State to not be furnished furnish to the printer, for publication in this volume, any laws not; of a general nature, unless such law contain a clause that it shall not take effect until after its publication in the statute book. Index andar- SEC. 4. That F. G. Adams is hereby appointed a commisginal notes and references to de sioner, who shall, within thirty days after the adjournment of made. the present session of the legislature, make out'a full and complete index of the volume provided for in this act, with such marginal notes as may be necessary to a clear understanding of the contents of each section, and shall insert in'the margin, opposite each section repealed or amended, a statement setting forth that the section has been repealed or amended, as the case may be, and the number of the page on which the same is repealed or amended. Chapters to be SEC. 5. It shall be the duty of the secretary of State to numbered. cause the chapters in the volume, provided for in this act, to OH. 133.1 LAWS AND JOURNALS. 673 be numbered from chapter 1 up to such number as there may be chapters in said volume, and cause to be stated, within brackets, at the head of each chapter, the number of the chapter as originally published, and the year of its passage. SEC. 6. The secretary of State shall cause to be printed, at Certificate of secretary, &c. the end of each chapter, the time when such chapter became a law, omitting the name of the officers certifying to and approving of the same, except when such law is not approved by the governor, and becomes a law as prescribed by the constitution, and shall, at the end of the volume, cause to be printed his certificate, setting forth that he has carefully examined each and every law published in the volume, and that they are true copies of the enrolled laws in his office. SEC. 7. The secretary of State shall cause to be printed by Listofl laws not title, at the close of the volume of laws herein provided for, p the following laws, to wit: Chapter 32, an act more particularly to define the bounda- County boundaries. ries of the several counties in Kansas Territory, approved:-, 1857. Chapter 32, an act authorizing the council and House ofContempt. Representatives to punish for contempt and for other purposes, approved February 11, 1859. Chapter 79, an act providing for the incorporation of turn- Road compaies pike road companies, approved February 11, 1859. Chapter 24, an act to provide for the incorporation of build- Building loan ing loan associations, approved February 25, 1860. Chapter 21, an act to legalize certain official acts of notaries Notarial acts le. - galized. public, became a law February 2, 1861. Chapter 5, an act to prevent the payment of certain bonds Bonds repudiated. purporting to have been issued under the provisions of this act, entitled an act to provide for funding the indebtedness of the Territory, approved February 11, 1859; and certain warrants and certificates, purporting to have been drawn under the provisions of an act entitled an act to provide for the adjustment and payment of claims, approved February 7, 1859; and an act supplementary to an act entitled an act to provide for the payment of claims, approved February 11, 1859; and to prevent the issuing or putting into circulation any bank bills or notes, purporting to be a promise to pay money or currency, based upon any such bonds, became a law, without the approval of the governor, in 1861. Chapter 6, an act to authorize the negotiation of one hun- Borrow moneyj 674 LAWS AND JOUJRNALS [C. 133. to start thle tate dred and fifty thousand dollars of the bonds of the State of machinery. Kansas, to defray the current expenses of the State, became a law May 3, 1861. Chapter 7, an act supplementary to an act to authorize the negotiation of one hundred and fifty thousand dollars of the bonds of the State of Kansas, to defray the current expenses of the State, approved May 1, 1861. Locationofpub- Chapter 40, an act providing for the location of the lands Eic lands. granted by Congress to the State, approved June 3, 1861. Leasing Indian Chapter 42, an act providing for the leasing of lands belonging to the incompetent Wyandotte Indians, approved May 5, 1861. Sale ofsame. Chapter 41, an act providing for the levy, sale, and forfeiture of lands belonging to the incompetent Wyandotte Indians, approved February 7, 1861. War money. Chapter 53, an act to authorize the State of Kansas to borrow money to repel invasion, suppress insurrection, and to defend the State in time of war, approved May 8, 1861. Penitentiary Chapter 60, an act to provide for the appointment of come commission. nmissioners to locate a State penitentiary, and to define their duties, and fix their compensation, approved May 28, 1861. Railroads. Chapter 62, an act relating to all railroad companies, whose charters have not been declared forfeited, became a law June 24, 1861. Transfer of re. Chapter 64, an act to provide for the removal of the records cords of Territory to State. and papers of the courts of the late Territory of Kansas to the courts established by the constitution, became a law April 23, 1861. And shall head the chapter, "list of laws of a general nature not published in this volume." Number ofvol- SEc. 8. There shall be printed three thousand copies of the nimes to be printed. volume provided for in this act;. said volume to be bound inE leather, and shall be printed in royal octavo form, on good small pica type, the pages to be of the same size and form as those in the private laws of the year 1860. Distributionof SEC. 9.- The secretary of State shall dispose of and dis. the laws. tribute the volume of laws herein provided for, in the manner prescribed in section two of an act to provide for the distribution of the laws and journals of the legislature, approved June 4, 1861: Provided, that, in addition thereto, he shall cause to be deposited with the clerk of each county one copy for each fifty voters in the county, whose duty it shall be to offer the same for sale at such price as the secretary of State Cu. 134.] LAWS AND JOURNALS. 675 shall direct, (such price not to exceed the costs of the volume and transportation,) and account to and pay into the treasury of State all moneys received on books sold as aforesaid, on the first day of January, 1863, and return to the secretary of State all books, if any, on hand at that time. SEC. 10. The secretary of State, imnrediately after dis- Sale oflaws tributing the laws as herein provided, shall certify to the auditor the number of copies remaining in his office not disposed of, and the auditor shall charge to the account of the:said secretary the number of volumes thus certified to, at the price which the same may have cost, deposited in the secretary's office, and it shall be the duty of the secretary of State to sell the same to any person desiring to purchase, at the same price per volume as charged to him, and the money received therefor shall be paid into the- State treasury on the first day of each month, and credit shall be given therefor to the said secretary on the books of the auditor. If, at the expiration of two years, any copies of the volumes of laws provided for in this act, held for sale, shall remain unsold, the secretary of State may deposit the same in the State library, and the auditor shall give him credit for the number of volumes so deposited. SEC. 11. This act to take efect and be in force from and after its publication; and it is hereby made the duty of the secretary, immediately after the approval hereof, to cause the sane to be published once in the ";Topeka Daily State Record," which shall constitute such publication. Approved March 6, 1862. [For "Act to provide for taking effect of Laws," see Chapter 216.] CHAPTER CXXXIV. (Chapter XLVIII, June 1861.) AN ACT to provide for the distribution of the Laws and Journals of the Legislature. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the laws passed by the Legislature at each TLws andjournals, how bound session, shall be bound in leather, in one volume, and tlleand howmany copies. journals of the two Houses of the Legislature, in one volume. [see oh, 132-8,1 676 LAWS AND JOURNALS. [CE. 134. There shall be printed eighteen hundred copies of the laws and three hundred copies of the journals. How Secretary, SEC. 2. The Secretary of State shall dispose of the laws of State shall disposeof the passed at each session of the Legislature, immediately after laws. [Ch. 133-9.] their publication in volumes, as follows: First, He shall deposit thirty copies thereof in the State library, to be preserved therein, and retain one copy for the use of his office. Second, lIe shall distribute to the Governor, Lieutenant-Governor, Auditor, Treasurer, Attorney General, Adjutant General, State Superintendent of Public Instruction, each Justice of the Supreme Court, the clerk of the Supreme Court, each judge of the District Court in this State, the Secretary of State of the United States, the library of Congress, the judge of the dis-c trict court of the United States for the district of Kansas, the United States marshal and district attorney in this State, the clerk of the said last named court and to the library of the State University, one copy each. Third, To the Governor of each State and Territory of the United States, free of expense to the same, two copies, accompanied by a request for a similar communication to be made to the Auditor of this State of the laws of the respective States and Territories. Fourth, To the clerk of the board of county commissioners of each county, a sufficient number of copies of the laws, to be distributed by hlim to eachof the following officers in his county, allowing one for each, namely: the judge of the probate court, members of the Legislature, county or district attorneys, register of deeds, county superintendent of public instruction, clerk of the district court, county treasurer, sheriff, coroner and chairman of the board of county commissioners, justices of peace, town trustees, and said clerk of county commissioners shall retain one copy for his office. Fifth, Fifty copies shall be safely kept, by the Secretary of State, for the use of new counties and towns, as they shall become entitled to receive the same. Secretary of SEC. 3. The Secretary of State, immediately after receiving State shall certify number of the same, shall certify to the auditor the number of the copies volumes not disposed of. of the laws remaining in his office, not disposed of as hereinAuditor to before provided, and the auditor shall charge to the account charge; of the said Secretary, the number of volumes thus certified, at the price of two dollars each. It shall be the duty of the Secretary of Secretary of State to sell the same to any person desiring to State shall sell; purchase, at the price of two dollars per volume, and the mo Cii. 134.] LAWS AND JOURNALS. 677 ney received therefor he shall pay into the State treasury, on the first day of each month, and credit shall be given therefor, to the said Secretary, on the books of the auditor. If, at the expiration of two years, any copies of the laws, held for sale, Laws remaining shall remain unsold, the Secretary of State may deposit the unsold secretary may deposit in same ill the State library, and the auditor shall give him credit State library. Auditor give for the number of volumes so deposited. credit. SEC. 4. The Secretary of State shall dispose of the journals Secretary shall dispose of jourof each session of the Legislature immediately after publica- nals, how. tion in volumes, as follows: One copy to each State officer and members and officers of the Legislature; one copy to the Governor of each State and Territory, for the library thereof, and one copy to the library of Congress, two copies to the clerk of the board of county commissioners of each county, to be preserved in his office, and thirty copies to the State librarv, to be preserved therein; the remainder of the journals Shall keepl e"V~~~~~~~'.~~~~~~~~mainder. to be safely kept, by the Secretary of State, for the use of new counties, as they shall become entitled to receive the same. SEC. 5. All expenses iobr transporting the laws and journals Expenese for transporting, to the clerk of the board of county commissioners of anyhow paid. county, shall be paid out of the county treasury. SEc. 6. The copy of the laws delivered to any county orLaws delivenre'<~~~~'J' ~~~~~~~~to county andcl township officer, on account of any office held by him, shall townshipoll shall be stamphave stamped or written thereon, the name of the office held ed. by such person, and he shall, when lie ceases to hold such office, deliver over to his successor in office, all laws received Oficersshall deliver to successby him as such officer, and take the receipt of his successor or'. therefor, and deposit such receipt with the clerk of the board Deposit receipt. of county commissioners, and any person who shall neglect or Neglect or reoflle refuse to deliver over to his successor in office, all laws received by him as aforesaid, shall be liable to such successor in an action of replevin for the same, or for money had and received, to the fRll amount it should or would cost him to furnish himself with such laws, and costs of suit, which action shall, on request, be brought and prosecuted by the county or district attorney of the county; but no person, while he continues to hold any office which should entitle him [to hold] such laws, shall be required to return the same as aforesaid. SEC. 7. All acts or parts of acts inconsistent herewith, are Acts repealed. hereby repealed. 678 LAW-LIENS: MECHANICS'. [CH. 135-136o To take effect, SEC. 8. That this act shall take effect and be in force from when. and after its publication. Approved June 4, 1861. CHAPTER -CXXXV. (Chapter CXXI, Acts 1859.) AN ACT Adopting the Common Law as the'Rule of Action in this Territory and Regulating the Authentication of Statutes and the taking effect thereof. Be it enacted by the Governor and Legislcative Assembly of the Territory of Kansas: SEcTION 1. The commonf law of England and all statutes and CneotAinlaw acts of Parliament in aid thereof, made prior to the fourth year and certain British statutes of James the First, and which are of a general nature, not local are in force. to that kingdom and not repugnant to or inconsistent with the constitution of the United States and the act entitled 6' an act to organize the Territory of Nebraska and Kansas," or any statute law which may from time to time be made or passed by this or any subsequent Legislative Assembly:f the Territory of Kansas, shall be the rule of action and decision in this Territory, any law, custom or usage to the contrary notwithstanding. SEC. 2. Punishment, by virtue of the common law, shall, in Limitation of punishment,n-nO wise, be other than fine and imprisonment, and such fine de common law. shall [not exceed one hundred dollars, and such imprisonment shall not exceed six months; nor shall any of the British statutes for the punishment of crimes and misdemeanors be in force in this Territory. Approved February, 1859. CHAPTER CXXXVI. (Chapter XC, Laws of 1859.) AN ACT for Securing Liens to Mechanics and others. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: The first twenty-three sections of this act repealed February 27, 1860. Of certain Liens upon Personal Property. Lien of one1chan- SECTION 24. Whenever any person shall deliver, to any ics, &c., on personal property mechanic artisan or tradesmen, any materials or articles for in certain cases. CH. 136.] LIENS: MECHANICS'. 679 the purpose of constructing, in whole or in part, or completing any furniture, jewelry, implement, utensil, clothing or other article of value, such mechanic, artisan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and for any materials which he may have furnished in the construction or completion thereof, and may retain possession of the same until such charges are paid. SEC. 25. When any person shall deliver to any mechanic, Same. artisan or tradesman, any watch, clock, article of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such mechanic, artisan or tradesman, shall have a lien thereon, for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid. SEC. 26. In either of the cases mentioned in the two preced-W hen lien may be enforced. ing sections, if the owner of the property or materials so delivered, or the person entitled thereto, shall not, when such articles shall have been constructed, completed, altered, fitted or repaired and ready to be delivered to such owner or other person, and the charges thereon shall be due and payable, pay to such mechanic, artisan or tradesmen, the amount of such charges, the person having such lien may enforce the same as hereinafter provided. SEC. 27. The person having such lien may commence a suit Suit for recovery of charges. for the recovery of such charges by summons in the usual form, before any justice of the peace of the township in which he resides, or in any court, as the case may require, against the person liable for the payment thereof. SEc. 28. If such summons be returned personally servedProceedings in case sunimonS upon the defendant, the same proceedings shall thereupon be retlurned personhad, in all respects, as in other suits commenced by summons in which there is a personal service of process, and judgment shall be rendered in, such suit in like manner. SEC. 29. If the officer returns upon such summons that the Proceedings if defendant can. defendant cannot be found within his county, the same proceed- not be found. ings shall be thereupon had, in all respects, as near as may be, as in suits commenced by attachment in which there is not a personal service of a copy of the attachment upon the defendant, and judgment shall be rendered in such suit in like manner. SEc. 30. If the plaintiff recovers judgment in such suit, Effe~t of judgexeccution shall issue thereon in the same manner, and with the like effect, as upon judgments rendered in suits commenced 680 LIENS: MECHANICS'. [CI. 137. by attachment, and the property upon which the plaintiff holds such lien, or so much thereof as shall be sufficient to satisfy such execution, may be sold thereon in the same manner as if it had been seized and held upon an attachment in such suit. Enforcing liens SEC. 31. The provisions of this chapter concerning liens in other cases. upon personal property and enforcing the same, shall apply to all cases of personal property on which the bailee or keeper thereof has by law a lien for any keeping, feed, care or labor by him bestowed upon such property. Expenses of SEC. 32. If the property, upon which any such lien shall be keeping beasts, when to be an enforced as provided in this chapter, consists of horses, cattle, additional lien. sheep, swine or other beasts, and any expenses shall have been incurred by the person having such lien, after the same accrued, in keeping and taking care of such property, the amount of such expenses shall be an additional lien upon the property, and shall be computed and ascertained upon the trial or assessment of damages, and included in the judgment. Liens, &c., filed SEC. 33. All liens filed and proceedings commenced thereon before the passage of thisdact before the taking effect of this act shall not be affected thereby, not affected. but such lien and proceedings shall be disposed of the same as if this act had never been passed. SEC. 34. That all suits which have been commenced under the former act relating to liens of mechanics and others, before the probate courts or justices of the peace, be and the same are hereby legalized. SEC. 35. This act to take effect and be in force from and after the first day of June next. Approved February 3, 1859. CHAPTER CXXXVII. (Session of 1862.) AN ACT to create a Lien in favor of Mechanics and others, and to regulate the proceedings to enforce the collection of the same. Be it enacted by the Legislature of the State of CKansas A contractor, SECTION 1. Any person who shall under contract with the with owner of land, for build- owner of any tract of land, or lots, furnish materials, or pering shall have a lien upon the form labor for erecting, repairing, or altering, any building, or land. the appurtenances of any building, on such land, lot or lots, shall have a lien from the time of making such contract upon Hi. 137.] LIENS: MECHANICS'. 681 the whole tract of land, lot or lots, the building and appurtenances in the manner herein provided for the amount due to him for such labor or materials. SEC. 2. The lien shall extend to all work done, and materials L-en shall extend to work and furnished under the provisions of the contract, whether thematerials. kind or quality of the work, or materials, or amount to be paid be specified or not. SEC. 3. When any sum due by such contract shall remain ow.order of sale may be obunpaid after the same is payable, the creditor may, in a suitraleed upon petition filed in the district court of the county in which the land, lot or lots lie, obtain an order for the sale thereof, and for applying the proceeds of such sale to the discharge of his demnands, and the filing of the petition and precipe in the clerk's office, shall be deemed the commencement of the suit. SEC. 4. The petition shall contain a statement of the cause Petition,'sum-mons and servof action, with a description of the premises subject to the ice. lien; the summons shall be similar to, and served as in other cases; constructive service may be had as provided by law in other cases. Pleadings and motions may be made as in other cases. SEC. 5. Every person who has or claims any lien upon, or Who may be made defendants right or interest in or to, such building appurtenances, land, lot or lots, or any part thereof, by virtue of this act or otherwise, may be made a defendant in such suit, and have his rights adjudicated therein, and may in his answer state such lien, right or interest, and his doing so, shall be deemed the commencement of a suit. SEC. 6. Any person who has, or claims any such lien, right How persons not made parties or interest, who is not made a party in such suit, may become may become a party thereto by filing within thirty days after the com- parties. mencement of such suit, his petition therein against all other persons who are parties to such suit, and the defendant in such last named petition shall, upon summons being issued therein against him, answer the same, within thirty days after the return day of any summons issued in such suit with which they shall be served, or such last named petition shall be taken as true, and such person's rights stated in such last named petition, shall be adjudicated the same as though he had been made a defendant in such suit; and his filing such last named petition shall be deemed the commencement of a suit against such other persons upon and for the causes of action therein stated, and the plaintiff in such suit shall answer Aserin. so 682 LIENS: MECHANICS'. [CH. 137. such last named petition within thirty days after the same is filed. eow others may SEC. 7. That if any person has or claims any such lien, right be made parties by answer. or interest, who is not a party to such suit, any person party to the same may in their answers make him a defendant therein, and cause a summons to issue against him, which summons shall be in form as though issued at the suit of the original party plaintiff, and his lien, right or interest shall be stated and adjudicated the same as though he was one of the original defendants. Amenldments. SEC. 8. For the purpose of bringing all parties in interest before the court,- the court shall have power to permit amendments to any of the pleadings and to issue process at any time. Liens may be SEC. 9. Liens and rights acquired under this act may be asassigned, signed, subject to all the equities between the original parties; the assignees shall have the same remedy as the assignors would be entitled to. Proceeds to be SEC. 10. Upon the trial of causes under the provisions of this act, the court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of each sale to be made to them, according to their rights, and in proportion to their several amounts, so far as those are concerned between whom there is no preference. If owner fail on SEC. 11. When the owner of the land shall have failed to his part, contractor shall preform his part of tile contract, and by reason thereof the have judgment for what hehas other party shall without his own default have been prevented done. from performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly. When part may SEC. 12. If any part of the premises can be separated from be sold. the residue and sold without damage to the whole, and if the value thereof shall be sufficient to satisfy-all the claims proved in the cause, the court may order a sale of that part. Persons whose SEC. 13. Parties entitled to liens under the provisions of claims are not due maybemadethis act, whose claims are not due, or payable at the time parties. of the commencement of suit by any other party, shall be permitted to become parties to the suit, and their claims shall be allowed the same as though due, subject to a reduction of interest from the date of judgment to the time such claim would otherwise become due or payable, Cia. 137.] LIENS: MECHIIANICS'. 683 SEc. 14. If the person who procures work to be done, orwho deemed to be ownlers. material to be furnished, has an estate for life only or any other estate less than a fee simple, in the land, lot or lots on which tile work is done, or materials furnished, or if such land, lot or lots at the time of making the contract is mortgaged or under any other incumbrance, the person who procures the materials to be furnished or the work to be done, shall nevertheless be considered as the owner within the meaning of this act, to the extent of his right and interest in the premises, and the lien herein provided for shall bind his estate and interest therein in like manner as a mortgage would have done, and the creditor may cause the right of redemp- Creditors may cause right of tion, or whatever right or estate such owner had in the land redemption to be sold. at the time of making the contract, to be sold, and the proceeds of the sale applied according to the provisions of this act. SEC. 15. Suits may be instituted under the provisions of Legal representatives to be this act in favor of administrators or executors, and may be made parties. maintained against the representatives in interest of these against whom the cause of action accrued, and in suits instituted under the provisions of this act, the representative of any party who may die pending the suit, shall be made parties as though they were suit in chancery. SEC. 16. Upon proceedings under the provisions of this act Wihat questions' and facts niay parties claiming may contest each other's rights, as well with be ticd. respect to the amount due, as withl respect to their right to the benefit of the lien herein created, and upon all questions made by parties, the court shall require issues of law or fact to be formed, so as to bring about a speedy decision thereof. SEC. 17. No incumbrance upon the land, lot or lots, created Lien upon the building to take before or after the making of a contract under the provisions precedence of prior incurnof this act, shall operate upon the building erected or materi- brances opon the land. als furnished until after the lien in favor of the person doing the work or furnishing the materials shall have been adjusted, and upon questions arising between previous incumbrances and creditors; under the provisions of this act, the previous incumbrance shall be preferred to the extent of the value of the land without such building or appurtenances, and the court shall ascertain by jury or otherwise, as the case may require, what proportion of the proceeds of any sale shall be Court ay dytermine how paid to the several parties in interest., proceeds to be distriS. 18. arties i interest, within the meated.ning of this act, S.C. 18. Parties in interest, within the meaning of this act, 684 LIENS: MECHANICS'. [CH. 137. paortideeinned shall include all persons who may have any legal or equitable terest. claim to land or lots upon which a lien may be attempted to be enforced under the provisions of this act. How sub-con- SEC. 19. Any person who shall furnish any such materials tractor may sets bcefit of or perform any such labor under a sub-contract with the contractor, wishing to avail himself of the benefit of this act, Notice to owner. shall give notice in writing to such owner of his intention to furnish such materials or perform such labor, and the probable value thereof, and if, afterward, he furnish such materials or perform such labor, and the contractor does not pay such subSub-contractor's contractor for the same, such sub-contractor shall have a lien ale c to have for such labor and materials on such land, lot or lots from the same effect as that of contractor. same time and to the same extent and in the same manner not exceeding such probable value, nor exceeding the amount due or to come due from such owner to such contractor, on his contract at or after the time of the giving of such notice as the contractor has for his own labor and materials, and such'obeenforced sub-contractor shall file his statement, with a description of in same manner. the premises subject to his lien, verified by affidavit, and commence his suit therefor in the same manner and within the same time as other lien creditors, and shall have the same rights and remedy for the enforcement of the same as near as may be. Such owner may pay such sub-contractor the amount due him from such contractor for such labor and materials, and such owner, from the time of giving such notice, shall beOwner to be the come the debtor of such sub-contractor for the amount due debtor from date of notice served. such sub-contractor from the contractor for such labor and materials, not exceeding the amount for which such sub-conPayment to sub- tractor is entitled to a lien; and such payment to the amount,entrtoder sehll thereof shall be a defense against any action brought by such contractor, or his assignee, against such owner, and shall operate as a payment of so much of the amount due or to become due from such owner to such contractor or his assignee; that where more than one sub-contractor gives such notice, when the amount due from such owner to such contractor at the time of tile giving of the same shall be applied pro-rata toward the satisfaction of all their demands, and payment made to any sub-contractor shall not be divided or estimated in favor of any sub-contractor giving notice after such payment; Provided, that nothing herein contained shall be so construed as to prevent such sub-contractor, or his assignees, Actionupon"thefrom maintaining an action at law upon his contract and contract saved. CH. 137.] LIENS: MECHANICS'. 685 against such contractor in the same manner as if he had no lien for the security of his debt; and, Provided, further, That nothing herein-contained shall be construed to prevent such contractor fromn having his lien and recovering judgment for such labor and materials of such sub-contractor, unless such sub-contractor, or his assignee, shall have, by judgment and proceedings thereon or otherwise, received payment for the same of and from- such owner; the judgment in favor of such Judgment of sub-contractor sub-contractor, or his assignee, against such owner shall be to be preferred to that of consatisfied before the judgment in favor of his contractor against tractor. such owner is, and satisfaction of such judgment in favor of such sub-contractor shall be to that extent satisfaction of such judgment in favor of such contractor, if he shall have recovered judgment for such labor and materials of such subcontractor, and such judgment in favor of such contractor shall state how much thereof, if any, is embraced in the judg- Judgmont of contractor shall ment in favor of such sub-contractor against such owner and state what. such part thereof, if collected on execution issued on the judgment in favor of such contractor shall only be paid over to hinm by the sheriff or other officer collecting the same on the order of the court, such execution shall state how much What execution shall state. thereof is to be retained by the sheriff or such other officer to abide such order of the court. SEc. 20. All payments made by such owner, before he is Owner not liablo to sub-contractserved with such notice, shall be valid, and he shall only beoruntilwhen liable to the sub-contractor for the amount due from- him to the contractor at the time of the service of the notice, and no owner or proprietor of any building shall, except as provided in section thirteen hereof, by virtue of anything contained in this act, be bound to pay such contractor the value of any work or materials, or be subject to any' suit therefor, before the expiIation of the time for which credit for such work and materials may have been agreed upon between: the owner and contractor, if such contract for credit shall have -been made before the subcontractor shall have furnished any materials or performed any work or given such notice. SEC. 21. The lien given by this act, upon the land, lot orLien shall extend to fixtures lots includes all buildings and fixtures thereon, and permanent and permanent machinery. machinery connected therewith, and such lien shall be upon and against the same, as a part of such land, lot or lots, and such machinery, and any engine shall be deemed appurtenances within the meaning of this act. 44 686 LIENS: MECHANICS'. [CH. 137. Lien to extend SEC. 22. The benefits of this act and the lien given by the to bridges, fences, railroads, same are extended and given to any person who shall furnish any materials or perform any labor, for the construction, repairing or altering of any bridge, fence, railroad, or other work of internal improvement in the same manner as though the same were a building within the meaning of this act, and the lien extends to the whole work, bridge, fence, railroad or other internal improvement and the appurtenances thereof, together with all the real and personal property connected with such bridge, railroad, or other internal improvement. Issues may be SEC. 23. In all cases under the provisions of this act, where tried separately between such there are several claimants, the issues of law and fact or either, parties as shall be prepared. may be tried separately, and in no case shall the want of preparation for trial of one claim, delay the trial in respect to others; but trials shall be had upon issues between such parties as are prepared, without reference to issues between other parties, and when one creditor shall have obtained a verdict or judgment for the amount due him the court may order a sale of the premises on which the lien operates, or a part thereof so as to satisfy the judgment, provided that the court may for Courtmay delaygOOd cause shown, delay making any order of sale until all sale until rights of all parties in parties in interest shall be ascertained and their rights settled interest shall be ascertained. by the court. validity of in- SEC. 24. Creditors who file petitions under the provisions of cumbrances may be contested. this act may contest the validity of incumbrances as well in regard to amount as to their justice, and any incumbrance whether by mortgage, judgment or otherwise charged and shown to be fraudulent in respect to such creditor or in respect to creditors generally, may be set aside by the court, and the premises made subject to the claim of the creditor, freed and discharged from such fraudulent incumbrance. Chancery pow- SEC. 25. In proceedings under the provisions of this act, the ers conferred upon the courts in courts are vested with all the powers of courts of chancery, and,these cases. shall be governed by the rules of proceeding and decision in those courts, so far as that power may be necessary to carry into full and complete effect the provisions hereof, and so far as those rules of proceeding and decision are applicable to cases and questions presented for adjudication and decision. unit must be in- SEC. 26. No creditor shall be allowed to enforce the lien stituted in twelve months created under the provisions of this act as against, or to the prejudice of, any other creditor, or any incumbrance, or any subsequent purchaser, unless suit be instituted to enforce such CH. 137.] IENS': MECHANICS. 687 lien within twelve months from the completion of said building or appurtenances; nor unless the persons claiming such lien, or his assignee, shall file a statement verified by affidavit of the Lien mist be amount claimed and description of the premises claimed to be months. subject to such lien, in the office of Register of Deeds of such county within six months after the furnishing of the materials, or the completion of such building or appurtenances, for which the Register of Deeds shall receive such fees as are allowed by law in other cases; which fees shall be deemed a part of the costs in such suit, and shall be recovered as other costs by the person paying the same. SEc. 27. That nothing contained in this act shall be con- Nottoprevent the recovery of strued to prevent any person from recovering in such suit, such damages. damages as he may be entitled to, by reason of any breach of contract, and if any person is prevented from executing such contract, by the wrongful act or default of such owner, such person may in such suit recover just damages therefor, or the contract price, against such owner; such damages shall be assessed as damages, judgment rendered therefor, shall be a lien against the property of such owner, only as judgments in actions for debt, and executions may issue thereon in the same manner; if after the satisfaction of all liens and incumbrances there is still a surplus, then the same shall be applied to the satisfaction of such judgment for damages. SEC. 28. Nothing contained in this act shall be construed to Action at law not barred. prevent any creditor from maintaining an action at law, upon his contract in like manner as if he had no lien for the security of his debt. SEc. 29. If upon making sale of any premises under this act rxeuftonimbay the proceeds of such sale shall not be sufficient to pay the fter proceeds of claims of all parties according to their rights, the judgment hauted. shall be credited by the amount of such sale, or the sum apportioned to it, and execution may issue in favor of any creditors whose claim is not satisfied, for the balance due, as upon a judgment in actions of debt, and in cases of excess of sales on the amount of judgment such excess shall be paid to the owner of the land or to the person who may be entitled to the same under the direction of the Court. SEC. 30. The costs of proceeding under the provisions ofCosts, howadjustod. this act, as between creditors claiming liens and the person against whom the lien is intended to be enforced, shall abide the event of the suit; and the costs as between creditors aforesaid in contests relative to each other's claims, shall be subject s68 LIENS: MECHANICS'L [L 13T to the order of the Court, and the same rule shall prevail irn respect to costs growing out of proceedings against and between incumbrances, and other parties interested. Satisfaction. Sac. 31. Each and every person in favor of whom any such shall be filed within ten days lien has existed, after receiving satisfaction of his dcebt, or after after request. final judgment is rendered against him by a competent tribunal showing that nothing is due, [by] reason of such claim, shall at the, request of such owner, or any person interested in such land, lot, or lots, or who is interested in having the lien removed, or of his legal representative, file for record with such Register of Deeds, a certificate stating that said debt is, satisfied and said lien removed, which certificate shall be acknowledged in the same manner that deeds conveying real estate are required to be, and such certificate when filed and recorded shall forever release and discharge' said lien, and if any person having received such satisfaction, as aforesaid, by himself or attorney, or judgment having been rendered'against him, as aforesaid, shall not within ten days after request in writing, file such certificate so acknowledged, with such Register of Deeds, and pay for the filing and recording of the same, if such judgment was rendered against him, he'shall forfeit and pay any sum of Penalty. money, not less than twenty dollars nor more than one-half of the debt claimed as a lien, according to the circumstances of the case, to be recovered in a civil action as in other cases at law, if such judgment has not been rendered against the person or persons claiming the lien, then the person who requires such certificate to be filed, shall pay for the filing, and recording of the same, and such Register of Deeds shall be entitled to the Fees ofregister same fees, for filing and recording, such certificate and acof deeds. knowledgment, as for filing and recording a deed containing the same number of words. Acts repealed. SEC. 32. That the act of the Governor and Legislative Assembly of the Territory of Kansas, entitled < "An act to create a:lien in favor of mechanics and others," approved February 927th, 1860, be, and the same is hereby repealed; Provided, that all suits commenced, and rights vested or accrued under the same, or any former law, are hereby saved, and the same lien, rights, and remedy shall in all cases be had under any contract heretofore made, as though this act had not been passed. SEC. 33. This act shall take effect from and after its publication in the statute book. Approved March 4, 1862. CA 13'8-139.] LUNATICS AND DRUNKARtDS. ~89 CHAPTER CXXXVIII. (Chapter LXXXIX. February 27, 1860.) AN ACT for the Benefit of Livery Stable Keepers. Be it enacted by the Governor and 1egislative Assembly of the Territory of Kansas: SECTION 1. That all keepers of livery stables shall have a Stable keepers have lien on lien upon all stock fed or stalled by them, until the expenses stock fed or of keeping the same are paid, except wherein special contracts staled by then are made and entered into by and between the parties. SEC. 2. This act to be in full force and effect from and after its passage. Approved February 27, 1860. CHAPTER CXXXIX. (Chapter XCII, Acts of 1859.) lAN ACT concerning Lunatics and Habitual Drunkards. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas. SECTION 1. If information, in writing, be given to the probate When facts to be inquired into court that any person in their county is an idiot, lunatic or per- by jury..son of unsound mind, or an habitual drunkard, and incapable of managing his affairs, and praying that an inquiry thereinto be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury. SEC. 2. Such information may also be given, in the vacation In vacation, such informaof said court, to the judge thereof, in which event he shall call tonto be given a special term of the court for the purpose of holding an inquiry, whether the person mentioned in such information be of unsound mind or an habitual drunkard or not. SEC. 3. In proceedings under this act, the probate court may, rorsgn my be in its discretion,!cause the person alleged to be of unsound mind the court. or an habitual drunkard to be brought before the court. SEC. 4. Whenever any judge of the probate court, justice of ty ofertain the peace, sheriff, coroner or constable shall discover any person, to ingand doreresident of his county, to be of unsound mind or an habitual ards. drunkard, (as in the first section of this act mentioned,) it shall be his duty to make application to the probate court for the .690 LUNATICS AND DRINKARDS. [CH. 139 exercise of its jurisdiction, and thereupon the like proceedings shall be had as in the case of information by unofficial persons. court shall ap- SEC. 5. If it be found by the jury that the subject of the point a guardian inquiry is of unsound mind or an habitual drunkard, and inca-. pable of managing his or her affairs, the court shall appoint a guardian of the person and estate of such person. Costs, hew paid. SEC. 6. When any person shall be found to be insane or an habitual drunkard, according to the preceding provisions, the costs of the proceedings shall be paid out of his estate, or, if that be -insufficient, by the county. If personal- SEC. 7. If the person alleged to be insane or an habitual leged to be insao or a drunk- drunkard, shall be discharged, the costs shall be paid by the ard be discharged, costs, how person at whose instance the proceeding is had, unless said paid. person be an officer, acting officially, according to the provisions of this act, in which case the costs shall be paid by the county. Inquisitiod may SEC. 8. The court may, if just cause appears at any time be set aside, uring the term at which an inquisition is had, set the same aside and cause a new jury to be impanneled to inquire into the facts; but when two juries concur in any case, the verdict shall not be set aside. Guardian to Bn- Sme 9. Every guardian of a person of unsound mind or an der into bonad. habitual drunkard, before entering upon the duties assigned him, shall enter into bond to the Territory of Kansas, in such sum and with such security as the court shall approve, condiCondition there- tioned that he will take due and proper care of such insane of. person or habitual drunkard, and manage and administer his estate and effects to the best advantage according to law, and will faithfully do and perform all such other acts, matters and things touching his guardianship, as may be prescribed by law or enjoined on him by the order, sentence or decree of any court of competent jurisdiction. Now bond, &c. SEc. 10. The court may, at any time, require of any such guardian to give a new bond or additional security, as the circumstances of the case shall require, and if any order for that purpose be not complied with within a reasonable time, to be therein mentioned, the appointment of the guardian may be revoked and another appointed who will give the bond and security required. Bond, where de- SEC. 11. Every bond given by such guardian shall be deposposited. ited with the clerk of the court making the appointment, and a Copy to be evi- copy thereof, duly certified by the clerk, shall be evidence in dence. all respects as the original. CH. 139.] LUNATICS AND DRUNKARDS. 691 SEC. 12. It shall be the duty of every such guardian, within Notie tofa bea. thirty days after his appointment, to cause a notice thereof to published. be published, at such time and in such manner as the probate court shall order. SEC. 13. Every such guardian shall take charge of the person To take charge of insane person committed to his charge, and provide for his support and main- and provide for his support, &c. tenance as hereinafter directed. SEC. 14. It shall be his duty to collect and take into his To take into his possession goods possession the goods, chattels, moneys and effects, books and haettels,., of other evidences of debt, and all writings touching the estate, real and personal, of the person under his guardianship. SEC. 15. Within three months after his appointment such Shall makeout and file an inguardian shall make out and file, in the office of the clerk of the ventory of real and personal egprobate court by which he was appointed, a just and true tate, when, &c. inventory of the real and personal estate of his ward, stating the income and profits thereof, and the debts, credits and effects, so far as the same shall have come to the knowledge of such guardian. SEC. 16. Whenever any property belonging to such estate Additionalinshall be discovered after the filing any inventory, it shall be the duty of the guardian to file, as aforesaid, an additional inventory, containing a just and true account of the same from time to time, as the same shall be discovered. SEC. 17. All such inventories shall be made in the presence Inventories,how made and attestof and attested by two credible witnesses of the neighborhood, ed. and shall be verified by oath or affirmation of the guardian. SEC. 18. It shall be the duty of every such guardian to Duties ofguardian in prosecutprosecute and defend all actions instituted in behalf of or lng and defedagainst his ward, to collect all debts due or becoming due to lectingdbts,&c. his ward, and give acquittances and discharges therefor, and to adjust, settle and pay all demands due or becoming due from his ward, so far as his effects and estate will extend, as hereinafter provided. SEC. 19. Every probate court, by whom any insane personProbate court or habitual drunkard is committed to guardianship, may make straint, support ansfe dkeeping an order for the restraint, support and safe keeping of such ~f drunkard or person, for the management of his estate, for the support and maintenance of his family and education of his children, out ofm1naintp oonfo the proceeds of such estate; to set apart and reserve for the his family, &c. payment of debts, and to let, sell or mortgage any part of such estate, real or personal, wh6n necessary for the purposes above specified, 692 LUNATICS AND DRUNKARDS. [CH. 139. When personal SEc. 20. Whenever the personal estate of any such insane debts, p&y person or habitual drunkard shall be insufficient for the discharge of his debts, the maintenance of himself and his family, or the education of his children, it shall be the duty of the guardian to apply, by petition, to the court by which he was appointed, praying authority to mortgage, lease or sell the whole or so much of the real estate of such person as shall be necessary to supply the deficiency. What facts theo SEC. 21. The petition shall set forth the particulars of the petition shall contain. amount of the estate, real and personal, of such insane person or habitual drunkard, and of the debts by him owing, accompanied by a full, true and perfect account of the guardianship of the petitioner, showing the application of the funds which may have come to his hands. Onexamination, SEC. 22. If it appears to the court, upon examination of the court may order the mortgage, matter, that the personal estate is insufficient for the purposes sale or leasing, &c., of the real above mentioned, and that the property has been applied, as far estate. as the circumstances of the case rendered proper, the court shall make an order directing the mortgage, lease or sale of the whole or such part of the estate as may be necessary or proper. Time and terms SEC. 23. The court making such order shall direct the time of sale to be directed bythe and terms of sale, or, if a mortgage or lease be ordered, the court, &c. terms of such mortgage or lease, and the manner in which the proceeds shall be secured, and the income or produce thereof be appropriated. Noticeof sale SEc. 24. When a sale of real estate shall be ordered, the shall be given; Gwhatit shall guardian shall cause- notice of the time, place and terms of sale, Contain, how and where pub-together with a description of the property to be sold, to be lished. p published four weeks successively in some newspaper in or nearest to the county in which the premises to be sold are situated, and shall also put up like notices at six of the most public places in such county, six weeks before the day of sale. Lands sold and SEC. 25. Such guardian shall, at the time and place appointed report to be made. for the sale, sell such lands at public auction to the highest bidder, and make report of his proceedings to the court at the term next succeeding the sale. leportof guard. SEC. 26. The report shall be verified by the affidavit of the,an verified. guardian, which affidavit shall, also, state that such guardian did not, directly or indirectly, become the purchaser of the property sold, and that he was in no wise interested in the purchase thereof. CH. 139.] LUNATICS AND DRUNKARDS. 693 SEC. 27. If the court approved the proceedings, the guardian If report approvP ed, deed exeeushall execute a deed to the purchaser, reciting the order of sale, ted. and conveying to the purchaser all the estate, right, title and interest of such insane person to the estate sold. SEC. 28. If the report be disapproved, the court may set If disapproved, court may set aside the sale, and order all money paid to be refunded, and all aside ble,; order securities given to be canceled, and may renew the order of sale, as often as may be necessary, until the proceedings are approved. SEc. 29. When the court shall order a lease or mortgage of N~fdecoduec. any estate, no deed or instrument of writing shall be executed prove agreement for that purpose, until the court shall have approved the agreement made by the guardian under such order. SEC. 30. Every conveyance, mortgage, lease and assurance, Conveyance valid. made under the order of a probate court, pursuant to the provisions of this act, shall be as valid and effectual as if the same had been executed by such insane person or habitual drunkard when of sound memory and understanding or temperate. SEC. 31. Every guardian appointed under this act shall, once Guardian torender account and a year or oftener, if thereto required by the court appointing make settlment him, render to such court a just and true account of his guardianship, and make settlement thereof with such court. SEC. 32. No contract of any person found to be of unsound Gontractof ward not binding mind or an habitual drunkard, as hereinbefore specified, which without consent - -: u of guardian. shall be made without the consent of his guardian, shall be valid or binding, and such guardian may sue for and recover any Money disposed money or property which may have been sold or disposed of by covered. his ward- without his consent. SEC. 33. No such insane person or habitual drunkard shallaune perd~rsoom be held to bail, nor shall his body be taken in execution on- any held to bail or civil or criminal action. tion. SEC. 34. In all actions commenced against such insane person Suits against inor habitual drunkard, the process shall be served on his guardian; proeUseerved and, on judgment against such person or his guardian, as such, the execution shall be against his property only, and in no case against his body, nor against the body or estate of such guardian, unless he shall have rendered himself liable thereto, by false pleading or otherwise. SEC. 35. If any person shall allege, in writing, verified by Effect of reetoration to sanity or oath or affirmation, that any person declared to be of unsound temperate habits mind or an habitual drunkard has been restored to his right 694 LUNATICS AND DRUNKARDS. [CH. 13g9. mind or to temperate habits, the court by which the proceedings were had shall cause the facts to be inquired into by a jury. If resored to SEC. 36. If it shall be found that such person has been his right mind. restored to his right mind, he shall be discharged from care and custody, and the guardian shall immediately settle his accounts, and restore to such person all things remaining in his hands, belonging or appertaining to him. In case of death SEC. 37. In case of the death of any such insane person or of insane person or drunkard. habitual drunkard while under guardianship, the power of the guardian shall cease, and the estate shall descend and be distributed in the same manner as if such person had been of sound mind or temperate habits, and the guardian shall immediately settle his accounts, and deliver the estate and effects of his ward to his personal representatives. Courts have pow- SEC. 38. The several probate courts shall have power to er to remove guardian. remove such guardians, at any time, for neglect of duty, misconduct, or mismanagement, or disobedience to any lawful order, and appoint others. When removed SEC. 39. Whenever any such guardian shall be removed from he shall settle sis accounts, &. his trust, he shall immediately settle his accounts, and render to his successor the estate and effects of his ward. Probate court SEC. 40. The probate court shall have full power to control has power to control guardian, the guardian of any such insane person or habitual drunkard, in the management of the person and estate and the settlement of his accounts, and may enforce and carry into execution their orders, sentences and decrees, in the same manner as a court of chancery. When insane SEC. 41. If any person, by lunacy or otherwise, shall be person confined, duty of court furiously mad, or so far disordered in his mind as to endanger and guardian. his own person or the person or property of others, it shall be the duty of his or her guardian, or other person under whose care he or she may be, and who is bound to provide for bis or her support, to confine him or her in some suitable place until the next sitting of the probate court of the county, who shall make such order for the restraint, support and safe keeping of such person as the circumstances of the case shall require. If not confined, SEC. 42. If any such person, as in the last preceding section and no person has harge of i specified, shall not be confined by the person having charge of him, or there be no person having such charge, any judge of a court of record, or any two justices of the peace, may cause such insane person to be apprehended, and may employ any person to confine him or her, in some suitable place, until the Cii. 140.] MARRIAGE. 695 probate court shall make further order therein, as in the preceding section specified. SEC. 43. The expenses attending such confinement shall be Expeises, hlow 6 paid. paid by the guardian, out of his estate, or by the person bound to provide for and support such insane person, or the same shall be paid out of the county treasury. SEC. 44. In all cases of appropriations out of the county Appropriations treasury, for the support and maintenance or confinement of trrey l howi any insane person, the amount thereof may be recovered by the recoered. county from any person who, by law, is bound to provide for the support and maintenance of such person, if there be any of sufficient ability to pay the same. SEC. 45. This act to take effect and be in force from and after the first day of June next. Approved February 8, 1859. CHAPTER CXL. (Chap. XCIII. Acts of 1859.) AN ACT in relation to Marriage. Be it enacted by the Governor and -Legislative Assembly of the Territory of Kansas: SECTION 1. Marriage is considered, in law, a civil contract, oriagc a. civil to which the consent of the parties is essential. SEC. 2. All marriages between parents and children, includ.-e Mearraes tlato ing grand-parents and grand-children of every degree, between vb~n ottuous brothers and sisters of the one half as well as whole blood, and between uncles and nieces, aunts and nephews and first cousins, are declared to be incestous and absolutely void. This section shall extend to illegitimate as well as to legitimate children and relations. SEC. 3. Whoever shall contract marriage in fact, contrary to Pernalty for contracting or solthe prohibitions in the preceding section, and whoever shall emnizing marriage contrary to solemnize any such marriage shall be deemed guilty of a mis- preceding sec demeanor, and, upon conviction, shall be punished by fine or imprisonment, or both, at the discretion of the jury which shall try the cause; or, if the conviction be by confession, at the discretion of the court, the fine to be not less than one hundred nor more than one thousand dollars, and the imprisonment to be not less than three months nor more than five years. 696 MARRIAGE. [Cui. 140. Marriage con- SEC. 4. All marriages contracted without this Territory, tracted without this Territory. which would be valid by the laws of the country in which the same were contracted, shall be valid in all court and places within this Territory. Ceremony, by SEc. 5. Every judge and justice of the peace, clergyman or whom perform.ed. licensed preacher of the gospel, may perform the ceremony of marriage in the Territory. Penaltyforjoin- SEC. 6. No judge, justice of the peace, clergyman, preacher ing minors in marriage with- of the gospel or other person, shall join in marriage any male out consent of parents. under the age of twenty-one years, or female under the age of eighteen years, without the consent of their parents or guardian, under whose care and government such minor may be, and any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars.'Shall keep re- SEC. 7. Every person having authority to join others in marcord of all marriages. riage, shall keep a record of all marriages solemnized before Shall transmit him, and, within three months, transmit a certificate of every certificate of marriages. marriage, containing both christian and surname, to the clerk of the county in which such marriage took place, and any person refusing or neglecting to make such return within the above required time, shall forfeit for every offence the sum of one hundred dollars, to be recovered with costs by the county clerk for the use of the county. Clerk shall re- SEC. 8. The clerk shall record all such returns of marriages cord all marriage returns. in a book to be kept for that purpose, within one month after receiving the same, and shall be allowed for each entry of the Clerk's fees. same fifty cents, to be paid by the parties to the marriage. If Penalty for neg- any clerk shall neglect or refuse to record within the said time lect or refusal to record. any return to him made, he shall forfeit one hundred dollars, to be recovered, with costs, by any person who will prosecute for the same. Records, &c., to SEC. 9. The books of marriages, to be kept by the respective be evidence. clerks, and copies of entries therein certified by him under his official seal, shall be evidence in all courts. Penaltyformak- SEC. 10. That, if any person authorized to solemnize any ing false return. marriage shall willfully make a false return of any marriage or pretended marriage, to the clerk, or if the clerk shall willfully make a false record of any return of a marriage, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars, and by imprisonment not less than three months. CH. 141a] MARRIED WOMEN. 697 SEC. 11. This act to take effect and be in force from and after the first day of June next. Approved February 7, 1859. CHAPTER CXLI. (Chapter XCIV. Acts of 1859.) AN ACT to protect the Rights of 3Married Women, and in relation to the liabilities incident to the Marriage Relation. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. The property, -real and personal, which any Widowentitlod to certain prop~ woman in this Territory may own at the time of her marriage, erty. [Ch. 83-2, chl. and the rents, issues, profits or proceeds thereof, and any real, 21-1 ch. 0.] personal or mixed property, which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband, or liable for his debts. SEC. 2. Any married woman, while married, may bargain, Any married' vwoman may barsell and convey her personal and real property, and enter into gain, nell, conany contract in reference to the same, as if she were sole. SEC. 3. Any woman may, while married, sue and be sued in May sue and be all matters having relation to her property, in the same manner [4A.ended, ch. as if she were sole. SEC. 4. Any woman may, while married, make a will, but'ay m"ake a will -wone half of she shall not bequeath away from her husband more than one- band.ertY to hhalf of her property, both personal and real, without his consent in writing. SEC. 5. If any married woman die without will, one-half of If a married woman die without her separate property shall become and remain the absolutewil. property of her husband, the other half shall descend to and be divided equally between the children of such married woman. SEC. 6. Any married woman dying without will or issue, her If witlholnt will or issue. property shall become the absolute property of her said surviving husband. SEC. 7. Any married man dying without a will, one-half of If a married man die without his property, both personal and real, shall descend to and be- will come the absolute property of his surviving wife, the other half shall be equally divided among his children. 698 MARIRIED WOMEN. [OH. 141. If withoutwill SEC. 8. Any married man dying without will or issue, his or issue. whole property, both personal and real, shall become the absolute property of his surviving wife. Optional to ac- SEC. 9. In case any married man shall hereafter deprive his cept will. wife of over one-half of his property by will, it shall be optional with such married woman, after the death of her husband, to accept the conditions of such will, or one-half of his whole estate, both real and personal. Married woman SEC. 10. Any married woman may carry on any trade or mnay carry on any business,c. business, and perform any labor or services, on her sole and separate account, and the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property, and may be used and invested by her in her own name, and she may sue and be sued, as if sole, in regard to her trade, business, labor, services and earnings, and her property, acquired by her trade, business and services, and the proceeds thereof may be taken on any execution against her. Woman married SEC. 11. Any woman who shall have been married out of out of this T rritory. this Territory, shall, if her husband afterwards becomes a resident in this Territory, claim all the rights as to property, which she may have acquired by the laws of any other State, Territory or country, or which she may have acquired by virtue of any marriage contract or settlement, made out of this Territory. Marriage con- SEC. 12. Nothing in this act contained shall invalidate any tract now made,ot ivaliclate. marriage settlement or contract now made, or to be hereafter made. Debts of wifebe- SEC. 13. In all marriages hereafter contracted, the husband fore marriage. shall be liable for the debts and liabilities of the wife contracted before marriage, to the extent of the real and personal property he may receive with or through her, or derive from the sale or rent of her lands, and no further. Liabilities not SEC. 14. Such liability of the husband shall not be extinextinguished by death of wife. guished by the death of the wife. Judgment ren- SEC. 15. When any woman, against whom liability exists, shall marry, and has or acquires lands, judgment on such liability may be rendered against her and her husband jointly, to be levied on such lands only. Exeeution levied SEC. 16. When any judgment is rendered against a husband on lands of wife. and wife for the tort of the wife, execution on such judgment shall be first levied on the land of such wife, if she have any. CH. 142-143.] MARRIED WOMEN-MILITIA. 699 SEC. 17. That the separate deed of the husband shall convey no interest in the wife's lands, nor shall the separate deed of the wife convey any interest in the husband's lands. SEC. 18. This act to take effect and be in force from and after its passage. Approved February 7, 1859. CHAPTER CXLII. (Chapter XC. February 18, 1860.) AN ACT to amend an Act entitled "An Act to Protect the Rights of Married Women, and in relation to the Liabilities incident to the Marriage Relation." Be it enacted by the Governor and Legislative Assembly of the:Territory of Kansas: SECTIoN 1. That section third of the act to which this is an amendment shall be amended so as to read as follows: "Sec. 3. ued same as it Any woman may, while married, sue and be sued in all matters [eh. eia-.] having relation to her property, person or reputation, in the same manner as if she were sole." SEC. 2. This act shall take effect and be in force from and after its passage. Approved February 18, 1860. CHAPTER CXLIII. (Acts of 1861, Chapter XLIX.) AN ACT to Organize and Discipline the Militia. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That all able bodied white male citizens, between the age of twenty-one and forty-five years, except such as are exempted by the laws of the United States and of this State, shall be enrolled in the militia and perform military duty, in such manner, not incompatible with the Constitution and laws of the United States, as' hereinafter prescribed. EXEMPTIONS. SEC. 2. The following persons are absolutely exempted from enrollment in the militia of the State of Kansas: All persons Who shall bie e.x who are absolutely exempted from enrollment in the militia by Iemrt 700 MILITIA. [Cii. 143 the laws of the United States; officers who- have held or may hold, for a period of five years, commissions in the army or navy of the United States; officers who have held, for a period of five years, commissions in the militia of this State, or any other State in the United States; the superintendents, officers and assistants employed in or about either of the State hospitals, State alms-houses, State prisons, jails, or houses of correction, conductors and engine drivers of railroad trains; any person having conscientious scruples against bearing arms, and who shall, annually, on or before the first day of May, pay to the county treasurer the sum of five dollars; judges of the supreme and district courts, probate judges, sheriffs, constables and city marshals. MILITIA DIVISIONS. State divided into two divisions. SEC. 3. That the State shall be divided into two divisions, as [See ch. 144.] follows, viz: the country lying South of the Kansas river shall constitute the Southern division, and the country lying North or of said river shall constitute the Northern division. Governor shall be commander- SEC. 4. The Governor of the State shall be commander-inin chief. chief, and shall have power, by and with the consent of the Senate, to appoint one or more major generals for each division, and may supply any vacancy therein until the meeting of the Senate to confirm said appointment, and there shall be one or more brigadier generals for each division, to be chosen as hereinafter prescribed, BRIGADES. D)ivisions divided iato brig- SEC. 5. That the divisions aforesaid shall be divided into as many brigades as the commander-in-chief may think proper.'ENROLLMENTS. Assessors shallf SEC. 6. The county assessors shall, annually, and at the same persons liable to time they are engaged in taking the assessment or valuation of military duty. real and personal property, in their respective counties, include in their assessment roll the names of all persons in their counties liable to be enrolled as aforesaid, and place it in the office coulty clerk of the county clerk of their county; and it shall be the duty of shall return copy of enroll- such county clerk, annually, on or before the first day of Janment to adjutant Bgeneral. uary, to return an accurate copy of such records of enrollments, to the Adjutant General of the State, to be by him filed in the office, and an abstract of the aggregate number of persons so returned, shall be forwarded, by the Adjutant General of the State, to the War Department at Washington city, on or before Ci. 143.] MILITIA. 701 the first day of May of each year; and, if any assessor shall Penalty if ng. neglect or refuse to perform his duties as herein prescribed, he shall be., deemed guilty of a misdemeanor, and, on conviction thereof, before a court of competent jurisdiction, shall be fined in a sum not exceeding fifty dollars. All tavern keepers, hotel Persons shall give assessor inkeepers, boarding house keepers, and every master or mistress formation. of any dwelling house, shall, upon the application of any assessor, give information of the names of all persons residing or lodging in such house, liable to be enrolled, and all other proper information concerning such persons, as such assessors may demand. If any person, of whom any information is requested by any assessor, in order to enable him to comply with the provisions of this -act, shall refuse to give such information or shall give false information, he shall forfeit and pay not more than ten dollars for each offence; Wivy person who shall refuse Penalty for givto give his own name and proper information, when applied to mtion. by any assessor, or shall give false name and information, shall forfeit and pay a like sum; such penalties to be repovered in any court of competent jurisdiction, in the name of the State of Kansas; and it is hereby made the duty of the assessors to report the names of all persons who may incur any penalties in this section prescribed, to the commandant of the brigade in which they reside. All moneys thus collected shall be paid to iMoneys paid, where. the county treasurer for the use of the volunteer companies in said counties, which said sums shall be divided out equally among the same, annually, by the county boards of the several counties, and be paid over to said companies on the order of their captains, when the several companies, by vote, shall desire the same. The assessors shall be compensated for their Howassessors services in making enrollments required by this article, at the comensate same rate and in like manner as they are compensated for making the annual assessment of property. SEC. 7. That the militia thus enrolled shall be subject to Duty ofthe voPI unteer mailitia. perform no active military duty, save and except to execute the laws, to repel invasion and suppress insurrection, or to prevent invasion, riot or insurrection, and, in case of war. In such case and time, the commander-in-chief is hereby authorized to Commander4inchief may order-. order out, from time to time, for actual service, as many of the ovt militia.t militia thus enrolled as necessity may require, and to provide for the organization hereinafter prescribedfor the organization of the volunteer militia; Provided, That, in all such cases, the enrolled volunteer militia shall first be ordered into service, and when; 45 702 MILITIA. [CH. 143. Shallhae Pcrefin the field together, have precedence overthe militia enrolled as aforesaid, in all the posts of honor and of danger. The militia, while in actual service, shall be governed by the military laws of the State and the rules and articles of war of the United States; and, when any troops are in the field for the purpose aforesaid in this section, the senior ranking officer of the troops present, shall take command; Provided, That no person shall be eligible to a command in the militia of this State, who is not a citizen of this State and of the United States. VOLUNTEER MILITARY ORGANIZATION. Militia shall be SEC. 8. That the active militia of this State shall be comcomposed of volunteers. posed of volunteer companies already organized or which may hereafter be organized by the order of the commander-in-chief. The volunteer militia shal, in all cases of war, invasion, riot or insurrection, be the first military force ordered into the field. shall be first or- Volunteer companies shall consist of men between the ages of dered intofield. eighteen and forty-five; Provided, That no minor shall be enrolled as a member of any such volunteer company without the consent of his parents or- guardians, and that all volunteer companies now formed shall be returned. Whenever, accordHow many shall ing to the provisions of this act, forty men shall be enrolled as have right to select officers. members of a volunteer company of artillery, infantry, light infantry or rifle; or when thirty men shall have been enrolled as members of a volunteer company of cavalry or mounted rifles, they shall have a right to select three over officers and be recognized as a company under the provisions of this act, and when their officers are commissioned, shall be subject to military duty as herein prescribed. No such company shall be Shall notbeit increased to more than one hundred men, rank and file, and creased to more than one hun- whenever any company shall become reduced to less than dired. twenty members, it may be attached to another company or disbanded, by order of the commander-in-chief. COMPANIES TO BE NUMBERED. Companies shall SEC. 9. The several volunteer companies of cavalry, artillery, be umbred. infantry, light infantry and riflemen, in each brigade, shall be numbered by the proper commandant of brigade, and a record made of such numbers in his office, a certified copy thereof to be deposited in the Adjutant General's office; and, when they exist in sufficient numbers and are conveniently located for the purpose, shall be organized into battalions and regiments, and officered as herein provided for; and, in cases of the same des CI 1 43.] MILITIA. 703 cripfion of arms, the oldest organized uniform company, first Oldest shall commissioned, shall be senior in rank, and so on to the junior organized company, dating from the first commission issued to the officers of the companies. SEc. 10. That, whenever there are not less than three nor May beorganized into a batmore than six volunteer companies -of infantry, light.infantry talion. or rifle of any description, conveniently located for the' purpose, the commander-in-chief may organize such companies into a battalion,, under the command of a major, with all the staff officers necessary to a regiment or battalion; Provided, also, That, whenever there are over five and under eleven companies, of any one description, as above provided, conveniently located for the purpose, the commander-in-chief shall organize the same May be organized into a regi~ into a full regiment, commanded by one colonel, lieutenant ment. colonel and major, and a full staff; and, whenever there are ten companies, as heretofore provided, the commander-in-chief may organize them into battalions or'regiments, or both, if there are sufficient number of companies so to do; and, whenever there are not less than two nor more than four companies of artillery or cavalry, they may be organized as aforesaid —if artillery, into a battalion; if cavalry or mounted rifles, into a squadron-under the command of a major, with necessary staff officers; and whenever there are four or more companies of artillery or cavalry in any one brigade, the commander-in-chief shall organize them into regiments, and whenever there are over five companies of artillery or cavalry, them into regiments or battalions, or both, if there are sufficient number of companies, and may organize the cavalry into squadrons or regiments, or both, as he may think proper, being governed by the number of companies of any one description. OFFICERS'TO MAKE RETURNS. SEc. 11. That every commandant of a volunteer company comandants shall make re shall make a return of all non-commissioned officers, musicians turns. and privates under his command, belonging to his company, and all the arms and accoutrements belonging thereto, to the commandant of his regiment, squadron or battalion; but, if his company does not form a part of any such organization, then he shall make return to the Adjutant General, on or before the first day of November of each year. The generals of divisions, of brigades and commandants of regiments, battalions and.squadrons, as the case may be, shall report to the Adjutant To whom report shall be made. 704 MILITIA. [Ca. 143. General, annually, on or before the first day of December, the full strength of their volunteer commands, the number of officers, &c., all arms and accoutrements belonging to the same, the state of efficiency of their commands; and all such returns shall be preserved by the Adjutant General, in a book of records [to be provided] for that purpose, and an abstract thereof showing the number of uniform volunteer militia or active milShall be forwar- itary of the State, shall, by him, be forwarded to the War Deded to war department. partmeint at Washington City, at the same time that the returns of the uniformed or enrolled militia are forwarded, as heretofore provided. VOLUNTEER COMPANIES HELD TO [DUTY] FIVE YEARSOffice shall be SEC. 12. Every non-commissioned officer and soldier, of any held fie years. volunteer company, shall be held to duty therein for five years, unless some absolute disability shall occur after forming such company, or shall be discharged by a vote of- the company orn good cause shown; and every such person, after the expiration of said term, and every commissioned offier, after serving a similar term in conformity to the provisions of this act, shall be Officer shall re- entitled to a certificate of such; and, such certificate shall be ceive certificate at expiration of given to all such persons under the rank of brigadier general, term of office.. by generals of brigade, and to all other officers, by commandants of divisions, and the holders of such certificates shall be exempt from military duty in time of peace; and all members of volunteer companies now organized, or who shall hereafter organize under the provisions of this act, shall, while a member of such company, be exempt from serving on juries; shall be exempt from all poll tax which have now or may hereafter be Penalty for levied in this State; Provided, That, if any officer or person granting illegal certificate. shall knowingly grant any illegal certificate under the provisions of this act, he shall be deemed guilty of a misdemeanor, and subject to a penalty, in amount, not less than ten nor more than one hundred dollars for each offence, to be collected before any court having competent jurisdiction, and when collected, to be paid into the military fund of the county where the offence was committed. CONSTITUTION AND BY-LAWS. Constitution and SEC. 13. Each volunteer company organized under the pro-by, -laws. l.visions of this act may adopt such constitution and by-laws as a majority of all the members of such companies may approve, Ci. 143.] MILITIA. 705 which shall be binding on all who sign the same, and when any -fines are assessed by reason of any infraction of such constitution and by-laws, such company may have process in any competent court of jurisdiction, in the name of the State, for the use of such company, and prosecute to final judgment and exe- Fines ad prosecution all such fines and penalties provided for by such consti- cutions tution and by-laws; Provided, That in no instance shall the State pay any costs of such prosecutions. SEc. 14. That all military commissions hereafter issued, ex- Commissions expire, when. cept the commissions of staff officers, shall expire in two years from the date thereof; Provided, That any officer holding a commission under the provisions of this act, who may be rechosen to the same office, shall retain the same rank as he was entitled to under his former commission; Provided, also, That nothing in this act shall be so construed as to disqualify any staff officer, or any officer of the line, from holding a commission after he may arrive at the age of forty-five years; and, Provided, further, That every officer who shall remove out of the bounds of his command, or who shall be absent from his command more than six months, without leave of' the corn- Officersshallnot manding officer of his brigade, shall be considered as having~ abseint six vacated his office, and a new election shall be had forthwith Newelectionto to fill such vacancy; Provided, That nothing in this act shall'nacncy. be so construed or understood as to prevent any appointed officer from being removed from his office whenever, in the opinion of the officer appointing him, he shall deem it advisable to remove him. UNIFORM. SEc. 15. That the uniform of all companies now organized Uniform; comor hereafter to be organized under the provisions of this act, panyshallselect shall be such as the officers of companies may select; Provided, however, That, if one-third of the members of any company shall be displeased with the selection, the matter shall be brought, by the whole company, through some one appointed for the purpose, to the notice of the commander-inchief, who shall have the power to adopt or reject said uniform, as to him may seem proper; Provided, further, That companies now organized may retain their present uniform; Provided also, That every commlssioned officer shall, within one month from the time he receives his commission, uniform himself in full, and every member of a cornpany shall, within 706 MILITIA. [Cm. 143 two months from the time he attaches himself to his comlpany, Shallprocure procure the uniform of the same; and, if any such officer or uniform. private shall, within the time specified, fail to procure said uniform, he shall be mulcted in fine not more than fifty dollars, by the commander in-chief, to be recovered in the manner provided in this act, whenever the failure to obtain said uniform by said officer and men is, by the affidavit of any-one interested in the matter, brought to the notice of the commander-in-chief. NEW COMPANIES. General officers SEC. 16. Any major-general or brigadier-general, whenever may commission competent per- he may think proper, may commission any one competent for son to raise new companies. the work, to raise a new company or companies; Provided, that any such officer, issuing such order, may designate the limits within which said company or companies are to be raised. fhat is exema t SEC. 17. All military equipments, accoutrements, arms and and execution. military paraphernalia, and any horse or horses which. may be kept for military purposes, shall be exempt from all taxation, and all execution and levy on all civil process whatever; Provided, That this section shall apply only to members of volunteer companies, except in cases of actual war, and when the general militia are ordered to the field, when it shall apply to them also. FINES... in fto attend mueglect SEC. 18. Every non-commissioned officer, musician and private, who shall refuse to appear full armed and equipped, ol0 any day of muster provided for in this act, shall, for every such refusal or neglect, pay the sum of one dollar for each company muster, and five dollars for each brigade or encampment muster. ASSESSMENT OF FINES BY COMPANY OFFICERS. make outlist of SEC. 19. It shall be the duty of the commander of each be finentsd.to volunteer company, together with the commissioned officers of his company, within ten days after each days company's muster. required by this act; Provided, Such delinquent, in their opinion, should be fined, to make out a list of such delinquents, particularly noting the fines therein assessed on such members of his company, and for what cause, a copy of which list shall forthwith be returned to some justice of the CAi. 143.] MILITIA. 707 peace within the proper county; such justice shall, on receiving such lists forthwith issue a summons against such delinquent named in such list, naming a day, not more than eight days nor less than three, from the date of said summons, in which the defendant soh:i appear, at the place named in such summons, before such justice, and defend; and, in default Of Judgment rendered in name of an appearance in person, or by agent or attorney, and a show- State. ing of a legal defense, such justice shall render a judgment, in thuname of the State, for the use of such company, for the amount shown by such list to have been assessed against such delinquent, and the commandant of the company shall call the commissioned officers of his company together within five days after each company muster, for the purpose of assessing the aforesaid fines, Provided, That all persons feeling them- Right to appeal. selves aggrieved by the decision of such justice, shall have the right to appeal, as in other cases; all such fines to be paid over to the county treasurer, and to go into the military fund of the county. SEC. 20. That the following shall be the amount of fines to what hhall,eo the lines irmbe imposed upon all general officers: Lieutenant-colonels, ma-posed. jors, captains, lieutenants and non-commissioned staff officers, for refusing or neglecting to discharge any of the duties enjoined on them by the provisions of this act, and for refusing to obey any order of their superior officers, which fine or penalty shall apply to all commissioned staff officers of the same rank of other commissioned officers who have violated the provisions of this act, shall be dealt with as other officers; a fine on any non-commissioned staff orfcer to be not less than three dollars nor more than thirty dollars; a fine on any lieutenant to be not less than four dollars nor more than forty dollars; a fine on any captain to be not less than five dollars nor more than fifty dollars; a fine on. any major to be not less than eight nor more than eighty dollars; a fine on any lieutcnant-colonal to be not less than nine nor more than ninety dollars; a fine on any colonel to be not less than ten nor more than one hundred dollars; all of said fines to be assessed or imposed by a brigade court or court martial, as the case may be, and to be collected as herein provided for. Hereafter, all and any fines imposed upon any commissioned staff officer,. under the provisions of this act, shall be collected before any justice of the peace in whose township such delinquent may reside, and all such shall be brought in the name of the State 708 MILITIA, [Cif. 143 of Kansas, to be distributed equally between the companies forming such brigade; the said sum to'be paid, for their use,into the county treasuries of several counties wherein said companies reside, and to go into the military funds of the several counties for the above named purpose. MILITARY FUND. A military fund SEC. 21. There is hereby created in each county, a military is created. fund, for the purpose of fostering the volunteer companies of the State, and to that end, the power of levying a tax, per capita, on each and every member of the enrolled militia of said county, is hereby conferred on the county boards of the several counties; Provided, That the amount annually collected shall not exceed two dollars per capity; that, when thus collected, it shall remain in the treasurer's office, safely kept for the use of the volunteer militia of said counties, wherein the tax may be levied, and for no other purpose; that, whenever the said county boards shall receive information, deemed reliable by them, that any volunteer company or companies, in their respective counties, are in need of any munitions of war, or any thing else necessary to their equipment, and effectiveness as a military company, it shall be their duty to issue an order to this effect, to the several treasurers, commanding them to collect or cause to be collected, by the sheriffs of said counties, the tax above mentioned; Provided, also, That the said treasurer or sheriff shall, before proceeding to Treasurer shall collect the same, give to the said counties a bond, with one or give bond, more good and snfficient sureties, to be by the county attorney approved, in any rtasonable sum they may require, conditioned that said treasurer or sheriff, as the case may be, will pay over all sums of money into the treasuries aforesaid, they may thus collect. FINES FOR DISTURBING MUSTER. Commanding SEC. 22. If any non-commissioned officer, musician, private, officer may order persorsputun- bystander or inspector, at any officer, regimental, squadron, battalion or company muster or parade, or at any meeting of officers authorized or required by this act, shall molest any officer or soldier when on dutv, the commanding officer may order or require such person or persons to be put under guard during the time of parade; and any officer or soldier appointed as guard or placed upon duty as sentinel, at any muster, parade or encampment, held under the provisions of this Cm. 143.] MILITIA. 709 act, is hereby authoriied and required to discharge that duty, maintain his post and guard the lines to protect the muster, parade or encampment, by using such force as will be necessary and sufficient to effect the same. FINES AND CIVIL AUTHORITIES. SEC. 23. That, in all cases where fines or penalties are in- Records received as prima facie curred, in accordance with the provisions of this act, the evidece. records of such company, regiment, brigade or court martial, shall be received as prima facie evidence; Provided, That, in all cases, that the defendant on trial may prove, in evidence, any irregularities in the assessing of such fines, or any other lawful matter of defence, not reacting back of the organization of such company or the enrollment of defendant. COSTS-HOW PAID. SEC. 24. All costs made by virtue of any suit brought to costsshallbe paid from mililrecover fines of any description, where the State fails, shall be tary fund. paid out of the military funds of the several counties. POWER OF SHERIFFS AND MAYORS IN RIOTS,. ROUTS AND UNLAWFUL ASSEMBLIES. SEc. 25. That, in case of riots, routs, unlawful assemblies, In case of riot, insurrections or popular outbreaks of an unlawful character, duty of sheriff. if any commandant of a volunteer company, squadron, battalion, regiment, brigade or division, shall refuse to appear with such force, at the time and place that the sheriff of the county, or mayor of the city, shall direct, such officer shall be fined in any sum not exceeding one hundred dollars nor less than ten dollars, on complaint of such sheriff or mayor, before any court having competent jurisdiction; or any non-commissioned officer, musician or private, who refuses or neglects to turn out and appear immediately on being notified by any proper officer of his brigade, shall be fined in any sum not Shallbefined. exceeding ten dollars, to be collected as herein provided; the aforesaid fines, when collected, to go into the military fund of the counties wherein the same is collected; Provided, That in all cases of demand or requisition for a military force, by the sheriff or mayor, it shall be by application to the superior commissioned officer in rank, at the time present in said city, town or county where such service is required. COMMANDANTS TO CALL OUT TROOPS. SEc. 26. Commandants of divisions, brigades; regiments, Commandants 710 3BILITIA. [CHI. 143.. tnry call out squadrons and companies shall have power and are hereby requiredl to call out their respective conmands for the purpose mentioned in the preceding section, and to the assistance of the civil authorities in the execution of all laws, State or Federal, when called upon so to do by the proper authorities. PAY, WHEN UNDER ORDER OF CIVIL AUTHORITIES. Pay when under SEC. 27. All commissioned and non-commissioned officers order. of volunteer companies, musicians and privates of the same, shall receive one dollar and fity cents per night, or two dollars and a half when serving under the order of a sheriff of their county, to be paid out of the county treasury; and when When to be paid under the order of mayors of cities and towns, to be paid out Out of county treasury; of the city and town treasuries. CAMP EQUIPAGE AND COLORS. Shall be furnish- SEC. 28. Every volunteer company and every field officer, equ2iptge and shall be furnished with camp equipage, and every volunteer colors. company, regimeit, squadron and battalion, shall, when in actual service, be furnished with suitable colors, to be paid for out of the military fund of the several counties. ARMY REGULATIONS. Shall be gov- SEC. 29. All parades, musters and encampments, held under erned by army regulations. the provisions of this act, and all court martials shall be governed, as near as may be, by the rules and regulations of the army of the United States. The rules and articles of war of the army of the United States, are hereby adopted, so far as applicable, and all offenders, in time of war, shall be adjudged by them and tried by them. RESIGNATIONS. Commander-in- SEC. 30. For good cause shown, the commander-in-chief may chief may accept resignations. accept the resignation of any commissioned officer. NUMBER OF OFFICERS. Commissioned SEC. 31. There shall be attached to each division of the officers. militia of this State, when organized, one major general; to each brigade, one brigadier general; to each regiment of volunteer militia, one colonel, one lieutenant colonel and one major, to each battalion of artillery, infantry, light infantry or riflemen; and to each squadron of cavalry volunteer militia, there shall be one major; and to each company of volunteer militia there cH. 143.] mMIITIA. 711,shall be one captain, one first lieutenant, one second lieutenant and one third lieutenant, and one ensign, four sergeants, four corporals, and, with the exception of cavalry companies, there shall be one fifer and two drummers, but all cavalry companies to have one or more buglers; Provided, That, whenever the proper commandants of the several A#fisions, brigades, regiments, squadrons, battalions or companies, shall not be present at any muster, drill or parade, the highest officer in rank, who is present, shall take command and be commandant of the same for the time being; and, if two officers of the same rank are present, the oldest in appointment or commission shall take command. STAFF OFFICERS. SEC. 32. There shall be attached to the commander-in-chief Staff officers and to the several divisions, brigades, regiments, squadrons and battalions, the following staff officers, to wit: the staff of the commander-in-chief to consist of one adjutant general who shall be inspector general, one quarter master general, one paymaster general, two or more aids-de-camp, as emergencies may require, one engineer in chief and one judge advocate general, who shall be appointed by the commander-in-chief. To each division there shall be one division inspector, who shall discharge the duties of assistant adjutant, two aids-de-camp, one assistant engineer in chief and one assistant judge advocate general, to be appointed by the commander of divisions, subject to the approval of the commander-in-chief. To each brigade, there shall be one brigade major to serve as brigade inspector, two aids-de-camp, one brigade quarter master, one brigade engineer, one brigade judge advocate, one brigade surgeon and one brigade chaplain, to be appointed by the brigadier generals of brigades. To each regiment or battalion of infantry, artillery, rifle or light infantry, there may be one chaplain, and there shall be one adjutant, one quarter master, one surgeon, one surgeon's mate, one sergeant major, one quarter master's sergeant, one drum major, and one fife major,'to be appointed by the commandant of such regiment or battalion; and it shall be the duty of the drum major to examine and report to the commandants of regiments or battalions, upon all instruments of music which may be purchased for the use of such regiments or battalions, and no such instruments shall be paid for unless they meet the approval of the same. To each regiment or bat 712 MILITIA. [CH. 143. talion of cavalry, there shall be one adjutant, one quarter master, one paymaster, one surgeon, one surgeon's mate, one quarter master's sergeant, one sergeant major and two regimental or squadron buglers, which shall be appointed by the commandant of such reiment or squadron. ELECTION OF OFFICERS. Elections, how SEC. 33. The officers of the line of the militia shall be elected conducted. as follows: Brigadier generals, by the written votes of the feld officers of the respective brigades and commanders of brigade companies; field officers of the regiments and battalions, by the written votes of the captains and subalterns of the companies of the respective regiments of battalions; captains and subalterns of companies, by the written votes of the non-commissioned officers and privates of the respective companies. RANK OF STAFF OFFICERS. How officers SEC. 34. The staff officers herein enumerated shall rank as shall rank. follows, viz.: The quarter master general, adjutant general, inspector general or brigadier general; the paymaster general, engineer in chief, judge advocate general and aids-de-camp to the commander-in-chief of colonels; the division inspectors, division engineers, division judge advocate and division quarter master or lieutenant colonel; the aids-de-camp to major generals or majors, the brigade inspectors, brigade engineers, brigade judge advocate or major; the brigade quarter master and aidsde-camp to brigadier generals, chaplains and surgeons, or captains, company ensigns, adjutants, quarter masters, paymasters, surgeons' mates of regiments, battalions and squadrons, or lieutenants; and all other regimental, battalion or squadron, staff or non-commissioned officers. Staff officers of SEC. 35. That all staff officers of the rank of lieutenant and rank of lieutenant and upwards upwards, shall be commissioned as other officers, and (except shall be commis- sioned. chaplain) shall attend meetings of the divisions, brigades, regiments, squadrons or battalions, and shall obey all other orders legally given by the proper officer commanding the corps to which they belong, and every commissioned officer (except appointed) shall be removed from office only by court martial. PABLIC ARMS TO BE KEPT BY THE QUARTER MASTER GENERAL' Quartermaster SEC. 36. All the public arms, ammunition, accoutrements, general shall keep all public camp equipage and military stores, belonging to any division of arms. the militia of this State, shall be under the care and superinten Cu. 143.] MILITIA. 713 dency of the quarter master general, who shall have power to employ suitable persons to clean and repair any arms or article that may require it, and certify any just and reasonable account which may be rendered for cleaning and repairing, and for transporting such arms and military stores to any place where they may be ordered by the commander-in-chief of divisions, which account, thus certified, shlall be allowed by the Auditor of State, and paid as other accounts against the State are paid; Account allowed and such assistant quarter master general shall receipt for all Statoe.r articles delivered to his charge, and account for the same at any time when called on to do so by the commander-in-chief. DISCIPLINE, TRAININGS, INSPECTION AND CAMP DUTY. SEC. 37. The system of discipline and field exercise ordered Shall observe the army discito be observed by the army of the United States in the different pline. corps, or such other system as may hereafter be directed for the tnilitia by the laws of the United States, shall be observed by the militia. SEC. 38. The commander of every volunteer regiment, bat- Shll annually order drill, talion and detached company, may annually order out the commissioned and non-commissioned officers under his command, for elementary drill, two separate days, between the middle of May and the middle of July, at such place as he deems most convenient; and if the place of any such officer in a company is vacant, the commander thereof shall detail from the privates under his command a sufficient number to make up the deficiency. Every person unnecessarily neglecting to attend at the time and place appointed for such drill, shall forfeit, to the use,of his regiment, battalion or company, three dollars, to be recovered as prescribed in this act. SEc. 89. Unless the com mander-in-chief prescribes the time, Encampments, how ordered. place and manner of assembling the troops, faoi the purpose declared in this section, eachecommander of division shall annually order an encampment of his division, by brigades or regiments, at some time between the middle of July and the middle of October. The orders for encampment, by brigade, shall be promulgated in the brigade thirty days before the time appointed for the encampment; the orders for encampment, by regiment, shall be promulgated in the regiment twenty days before such time. The place, and if no time is designated by the commander of division, the time of encampment shall be designated by the commander of the troops to be assembled, and regard shall 714 MILITIA. [CiH. 143. always be had to the convenience, proximity and accomrnmodation of troops to be assembled; but no ground shall be occupied for an encampment, in time of peace, without the consent of the owner thereof. E ncampment SEC. 40. Each encampment shall last three days. The troops shall last three days. shall be inspected, reviewed and thoroughly exercised as companies, battalions or brigades, in the whole routine of camp and field duty. Every non-commissioned officer and private, holden by law to do military duty in a company, and unnecessarily neglecting to appear at the time and place appointed for enshallforfeitfive campment, shall forfeit five dollars, to be recovered in the dollars. manner prescribed in this act. oll made dur- SEC. 41. Each company roll shall be made during the time of ing encampment encampment, under the supervision and in presence of a regimental or commissioned staff officer, to be designated by the commanding officer of the regiment or battalion to which the company is attached. Each division, brigade, regiment and How rank. battalion, shall, in the field, rank according to its number, the lowest number having the highest rank. Companies in a regiment or battalion shall form according to the rank of the officers present commanding them; and, when distinct corps parade, join or do duty together, the senior officer present shall command. Unoffcered com- SEC. 42. When a company destitute of commissioned officers panies, how supplied. parades with other troops, the officer in command shall detail one or more commissioned officers present to command it, unless the officer detailed by the commander of the regiment to command it is present. Who shall in- SEC. 43. The brigade majors and inspectors shall attend the annual encampments of the regiments and battalions in their brigades while encamped separately, and while they are under arms, inspect their arms, ammunition and accoutrements, superintend their exercises and maneuvers,-and introduce the system of military discipline required by law and by orders received from time to time from the commander-in-chief. May drill in SEC. 44. By permission of the officer in chief command, and camp by permission. of their own immediate superiors, officers, privates and musicians, may drill and maneuver in camp, in undress uniform or fatigue dress, and mounted officers may discharge their duties on foot. May fix bounds SEC. 45. Every commanding officer, when on duty, may asof parade. certain and fix necessary bounds and limits to his parade, (not Cm. 143.] MILITIA. 71 5 including a road, so as to prevent passing) within which no spectator- shall enter without leave from such commanding officer. Whoever intrudes within the limits of the parade, after May, arest withl. in limits. being forbidden, may be confined under guard during the time of parade, or a. shorter time, at the discretion of the commanding officer, and.whoever resists a sentry who attempts to put him or keep him out of such limits, may be arrested by order of the commanding officer and carried before a court or magistrate, to be examined or tried upon complaint for such assault, or disturbance, or breach of peace. SEC. 46. No officer or soldier shall be holden to perform mili- Wheha.equired to do draty. tary duty, except in case of invasion, insurrection, riot or tumult, made or threatened, or in obedience to the orders of the commander-in-chief, on a day appointed for a meeting in the town in which he resides, for the election of Governor, Lieutenant Governor, Senators, Electors of President or Vice President of the United States, or Representatives to Congress, or the State Legislature; and an officer parading his company or ordering it to parade contrary to the provisions of this section, shall, besides being liable to a court martial, forfeit not less than fifty court miartitatl. nor more than three hundred dollars. SEC. 47. The commander-in-chief may order out any portion of the militia for escort and other duties. The commander of companies or corps so ordered out, shall present their accounts for necessary music to the quarter-master general, who shall pay the same out of the money of the State in his hands. SEC. 48. Nothing herein contained shall be construed to Companies may drill, &c. prevent any company from meeting for the purpose of drill, ihneral or other escort, or voluntary service, nor to impairl the obligation arising under constitutional articles of agreement adopted by the company, so far as regards the members who have signed the same, unless they are repugnant to law. All fines, penalties, and assessments incurred by officers orHownfiesmay be recovered. soldiers of such company, under such constitutional articles of agreement, signed by them, and approved by the commanderin-chief, may, in addition to any other remedy thereon, be recovered in the manner herein prescribed. SEC. 49. Every non-commissioned officer or private WhO Shallappear with same arms appears at a parade or drill, required by law, deficient in any as State flrnisharms furnished him by the State, or with such arms unserviceable or in -bad condition, shall forfeit one dollar, and every such officer or private, so appearing deficient in any article of 716 MILITIA. [CC. 143. equipment or ammunition furnished to o' required of him by law or general order, or with such equipment or ammunition of had quality or condition, shall forfeit fifty cents, to be recovered as herein prescribed. Contempt, how SEC. 50. A soldier behaving with contempt toward an punished. officer, or conducting in a disorderly manner, inciting or joining in a tumult or riot, or being guilty of unmilitary conduct, disobedience of orders, or neglect of duty, when under arms or on duty, shall forfeit rot less than' five nor more than twenty dollars, to be recovered as herein prescribed. Penalty for quit- SEC. 51.. A soldier quitting his guard, section, or platoon, ting guard. or company, shall forfeit not less than two nor more than ten dollars. May be pnt.in SEC. 52. For any offence mentioned in the preceding secguard. tion,- the delinquent may be put and kept under guard by the commander of the company, regiment, or of the field, for a time not extending beyond the term of service for which he is then, ordered. A non-commissioned officer, for an offence mentioned in this chapter, or for disobedience of order, or unmilitary conduct at a regimental or battalionr parade, may, besides incurring the fine prescribed, be reduced to the ranks by the commander of his regiment or battalion, and at any other parade, by such commander, with the advice of his company commander. Shall be fined. SEC. 53. Soldiers in companies without officers, when ordered out to be trained and disciplined, shall, for absence, deficiency, misconduct, or neglect, be liable to the fines prescribed for offences in other companies, to be recovered upon the complaint of the officer detailed, substantially as prescribed by this act. Shall drill every SEC. 54. It shall be the duty of commanders of volunteer month. companies to order out their companies once every month, equipped for drill. If any such commander shall fail to do as prescribed in this section. he shall forfeit the sum of five dollars, to be recovered, for the use of.the company, as prescribed in this act. ARMORIES. Armories shall SEC. 55. The mayor and council of any city or town, whenbe provided for companies, ever any volunteer militia company may be formed within its limits, shall provide a commodious and substantial armory or armories for their use; and whenever any volunteer militia OC. 143.] MILITIA. 717 companies shall be formed outside of the limits of any city or town, it shall be the duty of the county board of the counties in which said companies may be formed, to provide an armory or armories for their use: Provided, that the number necessary for use of such company or companies shall be left to the discretion of said mayor and council, and to said county board. PENALTY OF DETAINING ARMS. SEC. 56. If any person or persons shall be found guilty of Penalty for detaining arms. selling or disposing of any arms, accouterments, or any canmp equipage belonging to the State of Kansas, every person so offending, or being guilty of such act, shall forfeit and pay over, for every musket, sword, saber, pistol, cannon, or other article belonging to the war department of this State, double the contract price for such article, as estimated at or by the ordnance department at Washington, with costs of suit; or if any person shall be found guilty of holding or secreting, hiding or detaining, or refusing to give up or deliver any of the arms or camp equipage as aforesaid, shall pay double the contract price, with costs of suit: Proivided, that any and all persons who have a legal right to hold and keep any of the articles named in this section, shall not be liable by this act. Persons claiming to have a legal right to hold any of the articles named in this section, on demand of the proper officer, shall show a written authority, signed by the quarter-master general, or commandants of divisions, brigades, regiments, squadrons, or battalions. All penalties collected under this section, to be collected as provided in this act. ARRESTS. SEc. 57. On complaint of a commissioned officer, made in Howarrestsmay be ordered. writing to a superior officer, touching the conduct of any officer, such superior shall, if he think the complainit a sufficient one for an arrest, cause the officer against whom such complaint is made to be arrested; and when any officer is arrested as aforesaid, the officer whose duty it is to arrest shall notify the officer arrested, in writing, that he is suspended from command until acquitted from such arrest, stating the ground of arrest and place of trial. UNIFORMS OF OFFICERS. SEC. 58. Officers of the line and staff shall provide them- Uniforms selves with such uniform, complete, as the commander-in-chief 46 718 MILITIA. [CH. 144. prescribes, subject to such restrictions, limitations, and alterations as he may order, and every such officer deficient therein, shall forfeit the sum of five dollars, to be recovered as provided in this act. MEDICAL DEPARTMENT. SEC. 59. The commander-inbchief, whenever, in his opinion, it becomes necessary, may organize the medical department of the militia of the State of Kansas. IMMEDIATE ORGANIZATION. mhall inmledi- SEC. 60. Immediately on the passage of this act, it shall be ately organize. the duty of the commander-in-chief to take such steps as his sound discretion may dictate, to perfect the rapid organization of the militia of this State, as provided for herein; and it shall be the duty of the auditor of State to audit all accounts for expenses accrued in perfecting such organization, whenever properly presented with the vouchers of the commanaerin-chief, that said accounts are just, and ought to be paid; Auditor may and it shall be the duty of the auditor to draw his warrants draw warrant. on the treasurer for the payment of the same, and the treasurer shall pay the same out of any money appropriated for that purpose. When and how SEc. 61. This act to take effect and be ill force from its pubto take effect. lication, and after it receives the signature of the governor, the secretary of State shall have the same published forthwith, at least one time in the " Daily State Record," which shall be deemed a sufficient publication. Approved April 22, 1861. I hereby certify that the above became a law by publication in the "Topeka State Record," April 23, 1861. J. W. ROBINSON, Secretary of State. CHAPTER CXLIV. (Acts of 1861, Chapter L.) AN ACT supplementary to an act entitled "An act to Organize and Discipline the Militia." Be it enacted by the Legislature of the State of Kansas: Northern and SECTION 1. That the counties of Davis, Dickinson, Was southern divisS ions of State baunsee, Saline, and all counties north and west of them, be and are hereby attached to the northern division, and all CH. 145.] MILITIA. 719 counties south of the aforesaid counties, and Wyandotte and Shawnee, are hereby attached to the southern division, for military purposes. SEC. 2. That this act to take effect and be in force from and When to take effect. after its publication. Approved May 7, 1861. CHAPTER CXLV. (Acts of M1U2.) AN ACT for the Auditing of the Expenses of the State Militia during the year 1861. Be it enacted by the Legislature of the State of Kansas SECTION 1. The colonels of all militia regiments, or parts colonels. of regiments, in actual service during the year 1861, shall cause to be made out, by the captains of the various companies under their commands, the muster-rolls of their companies, Muster rolls. in which shall be shown the names of the men serving in their companies, and the length of time they have served, deducting their absence from duty on leave or otherwise. The captains shall make affidavit to the correctness of their musterrolls before some officer commissioned to take acknowledgments; the colonels receiving these muster-rolls shall deliver the same, with the accompanying affidavits, to the auditor of State. SEC. 2. Lieutenant-colonels or majors in command of bat- Lieutenant-oolonels or mnajorn talions, shall require the captains of companies, or officers in command of companies, to make out muster-rolls of their respective companies, as provided in the preceding section; and the said lieutenant-colonels and majors shall deliver such muster-rolls and affidavits to the auditor of State. SEC. 3. Said colonels, lieutenant-colonels, and majors shall Qnartermaster. cause those acting as quarter-masters or commissaries of regiments, battalions, and companies, to make out their amounts for provisions furnished, accompanied with their affidavits, and the affidavits of the persons furnishing the same, that such accounts are correct, in amount and price: Provided, that all such vouchers shall specify the quantity and price of the provisions so furnished. SEc. 4. The auditor shall report to the next legislature the number of soldiers and officers, with their rank, thus reported 720 MrNOIt. [CH.w 146, to him, with the time they were in service, together with the names of officers thus commanding; also the amounts expended for commissary and quarter-mastcr's stores. SEc. 5. This act shall take effect and be in force froml and after its publication in the statutes. Approved March 6, 1862. CHAPTER CXLVI. f(Chapter XCVI, Acts of 1859.) AN ACT relating to Minors. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Extent of mi- SECTION 1. The period of minority extends, in males, to the age of twenty-one years, and, in females, to that of eighteen years. When minor SEC. 2. A minor is bound, not only by contracts for necesbound for con: tracts. saries, but, also, by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him, by virtue of the contract, and remaining within his control at any time after his attaining his majority. Misrepresenta SEc. 3. No contract can be thus disaffirmed in cases where, tion of minor. on account of the minor's own misrepresentations as to his majority or from his having engaged in business as an adults the other party had good reasons to believe the minor capable of contracting. Eright to receive SEC. 4. When a contract for the personal service of a pay for personal service. minor has been made, with him alone, and those services are afterwards performed, payment made therefor to such minor, in accordance with the terms of the contract, is a full satisfaction for those services, and the parent or guardian can not recover therefor. SEC. 5. This act shall take effect and be in force from and after the first day of June next. Approved February 8, 1859. CH. 147-148.] MINORS. 721 CHAPTER CXLVII. (Session 1862.) AN ACT to enable Andrew S. Hughes, a minor, to Donate Personal Property. Be it enacted by the Legislature of the State of Kansas SECTION 1. That Andrew S. Hughes, of Atchinson county, Authorized to donate personal in this State, a minor over the age of eighteen years, is hereby property. authorized to donate to his sister, Mary G. Hughes, his share of the legacy made to them by their grandfather, John Neal, deceased, and his act in writing, signed by him to that effect, shall have the same force as if he was of full age in law. SEC. 2. This act to be in full force from its passage. Approved March 5, 1862. CHAPTER CXLVIII. (Session 1862.) AN ACT authorizing George E. Van Deusen, minor, to exercise the Rights of Majority. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That George E. Van Deusen, of the county ofGeorge E. Van Deusen authoriLinn, and State of Kansas, be and hereby is authorized andzedtohold proempowered to hold, possess and control in his own person perty'& and right, and without the intervention or control of any guardian, any property, goods, chattels, rights, interests, lands, tenements and effects by him lawfully acquired or inherited, or that may be hereafter by him so acquired or inherited, notwithstanding the minority of the said George E. Van Deusen, and that lie have full power to hold convey and dispose of the same, and to make contracts, to sue and be sued, and in all respects to exercise and enjoy all rights of property, and of contract, in the same manner and to the same extent as though he were of the full age of twenty-one years; and all property rights and interest of the said George E. Van Deusen, now held or controlled by any guardian, shall immediately vest in and be delivered and transferred to the said George E. Van Deusen, subject, however, to any just claims of such guardian against him, growing out of such guardianship. SEC. 2. This act shall take effect and be in force from and after its passage. Approved March 1, 1862. 722 MORTGAGES: CHATTELo [Ct. 149-15G. CHAPTER CXLIX. (Chapter XCVII, 1859.) AN ACT to Provide for the Foreclosure of Mortgages. Be it enacted by the Governor and Legislative Assenmbly f t/ie Territory of Kansas: Mortgages fore- SECTION 1. That mortgages upon real estate, given, to seclosed in district court. cure the payment of money, shall be foreclosed by petition in the district court of tile county in which the real estate is situated, or of the county to which the county, in which the real estate is situated, is attached for judicial purposes.. Deeds of trust SEC. 2. All deeds of trust, given to secure the payment of deemed mortgages. money, shall be deemed mortgages within the meaning of this act, and shall be foreclosed in the same manner as mortgages on real estate are foreclosed.:Must be fore- SEC. 3. All proceedings to foreclose mortgages shall be conclosed as prescrdibedin civil ducted in conformity to the provisions of an act entitled " An code. Act to establish a Code of Civil Procedure," passed at the present session of the Legislative Assembly, No court shall Attorney's fees.' tax over two dollars as attorney fees, in any case, for foreclo.sure of any mortgage or trust deeds, or for collection of the same. SEC. 4. This act shall take effect and be in force from and after the first day of June next. Approved February 11, 1859. CHAPTER CL. (Chapter XXY, 1860.) AN ACT to regulate Chattel Mortgages and Bills of Sale of Personal Property. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: M.ortgages void, SECTION 1. That every mortgage or conveyance, intended to operate as a mortgage of goods and chattels, hereafter made, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void CH. 150.] MORTGAGES: CHATTEL. 723 as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgages or a true copy thereof shall be forthwith deposited in the office of the register of deeds, in the county where the property shall then be situated; but, if the mortgagor be a resident of this -Territory, then in the county of which he shall, at the time be a resident. SEC. 2. Upon the receipt of any such instrument, the regis- ow filed. ter receiving it shall file the same, by indorsing on the back thereof the time of receiving it, and shall deposit the same in his office, to be kept there for the inspection of all persons interested. SEC. 3. Every mortgage so filed shall be void as against Void, secoodly, the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof, unless, within thirty days next preceding the expiration of the term of one year, a true copy of such mortgage, together with a- statement exhibiting the interest of the mortgagee in the property, at the time last aforesaid, claimed by virtue of such mortgage, shall be again filed in the office of the register of deeds where said mortgage had been filed. SEc. 4. A copy of any such original instrument or any Gopyreceive copy thereof, so filed as aforesaid, including any statement made in pursuance of this act, certified by the register in whose office the same shall have been filed, shall be received in evidence, but only of the fact that such instrument or copy and such statement was received and filed according to the indorsement of the register thereon, and of no other fact; and, in all cases, the original [indorsement,] by the register made in pursuance of this act, upon such instrument or copy, shall be received in evidence only of the facts stated in such indorsemen t. Fees of registor. SEC. 5. For services under this act, the register shall be allowed to receive the following fees: For filing each instrument or copy, ten cents and the like fees for certified copies of such instruments or copies as are allowed by law to such registers for copies and certificates of other records kept by them. SEC. 6. This act to be in force from and after its passage. Approved February 25, 1860. 724 MORTGAGES: SATISFACTION OF [Cu. 151. CHAPTER CLI. (Session 1862.) AN ACT to provide for entering Satisfaction of Mortgages. Be it enacted by the Legislature of the State of Kansas; When money SECTION 1. That when the mortgagee of any property due is paid, satisfaetion may be within this State, shall have received payment of the money entered, which sall, release due to him, and secured by the mortgage, and shall have enmortgage. tered or may hereafter enter satisfaction, or receipt for the same, either on the mortgage or on the record of the mortgage, such satisfaction or receipt so recorded, shall operate and be taken to release the said mortgage to whoever may be entitled to a release. Duty of register SEC. 2. That the register of deeds of each county, when of deeds. hereafter recording a mortgage, shall leave space on the margin of the record for the entry of satisfaction, and shall record therein the satisfaction made on said mortgage, or permit the mortgagee to enter therein the satisfaction of said mortgage; which record shall have the same force and effect as the record of a release of said mortgage, and the recorder shall be reves for record- entitled to demand and recover the sum of twenty-five cents, in satisfaction. and no more, for recording such satisfaction of a mortgage or permitting it to be recorded as aforesaid by the mortgagee. When mortgage SECe. 3. That, when any mortgage shall have been paid off paid off, satisfaction to be en- and satisfied, it shall be the duty of the mortgagee or his astered. signs immediately, on the demand of the mortgagor, to enter satisfaction or cause satisfaction to be entered on such mortLiability of gage or on the record thereof; and any mortgagee or assigns mortgagee for not entering of such mortgagee, who shall neglect or refuse to enter satisfaction of such mortgage as is provided by this act, shall be liable in damages to said mortgagor or his grantee or heirs, in the suln of one hundred dollars, to be recovered in a civil action before any court of competent jurisdiction. Former practice SEC. 4. Nothing in this act contained shall be construed as a not invalid. declaration that any former or existing practice of entering satisfaction or releases in the manner herein authorized shall be held as invalid. SEc. 5. This act shall be be in force from and after its publication in "Topeka Record."' Approved March 6, 186a. CH. 152-153.] NOTARIES PUBLIC. 725 CHAPTER CLII. (Chapter LXXII, Acts 1859.) AN ACT to prevent the mutilation or alteration of Acts and Bills. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas::SECTION 1. If any person shall mutilate, alter or change, Mutilation or alteration of in any manner whatsoever, otherwise than in the regular acts, &c., before the legislature, course of legislation, any act, bill or resolution, introduced oracts signed by governor, made into or acted upon by either or both Houses of the Legislative felony. Assembly of this Territory, or after any such act, bill or resolution has been signed by the governor, shall be deemed guilty of a felony; and, upon conviction, shall be punished by confinement and hard labor for a period, not less than one Penalty. year or more than ten years. SEe. 2. This act shall take effect and be in force fi omr and after its passage. Approved February 11, 1859. CHAPTER CLIII. (Chapter CI, Acts of 1859.) AN ACT respecting Notaries Public. Be it enacted by the Governor and Legislative Assembly of the Territory of K]ansas: SECTION I. The governor shall appoint and commission in Governor to apeach county, as occasion may require, one or more notaries point notaries. public, who shall hold their offices for four years. SEC. 2. They may receive the proof or acknowledgment of Their powers all instruments of writing relating to commerce and navigation, receive and authenticate acknowledgments of powers of attorney, make declarations and protests, and certify the truth thereof under their official seals, concerning all matters by them done by virtue of their offices, and shall have all the powers and perform all the duties of register of boatmen. SEC. 3. Every notary shall keep a fair record of his official To keep a record acts, and, if required, shall give a certified copy of any record in his office, upon the payment of the fees therefor. SEC. 4. If any notary die, resign, be disqualified or remove I case of vacancy, his records from the county, his record and official and public papers Of adpapirs to be delivered to the his office shall, within thirty days, be delivered to the register recorder. 726 NUISANCES. [CiH. 154. of deeds of the county, to be delivered to his successor when qualified. To provide a no- SEC. 5. Every notary shall provide a notarial seal, contaieal seal, &c. taining his name, and place of residence, and he shall authenticate all his official acts, attestations and instruments therewith. iShall take n SEC. 6. Every notary public, before entering on the duties hound. of his office, shall take an oath of office prescribed by law, which shall be indorsed on his commission, and shall give bond to the Territory of Kansas in the sum of five hundred Condition there- dollars, with good securities, conditioned for the faithful perf' bforrmancee of the duties of his office. Bond,, &c, shall SEC. 7. Such bond, commission and oath shall be recorded be recorded, 11vhera. in the register's office of the county, and the bond shall be filed in the office of the secretary of the Territory, and may be sued on by any party injured. Limnitation of SEC. 8. No suit shall be instituted against any such notary action. agarinst notaries. or his securities more than three years after such cause of action [accrues.] iowers of nota- SEC. 9. Notaries public shall have authority to administer all oaths provided for by law, and to take the acknowledgment of deeds and other instruments of writing, conveying or affecting lands or other property in any part of this Territory. Acknowledg- SEC. 10. All acknowledgments heretofore taken by notaries mients heretofore taken tobe valid public of deeds or other instruments, conveying or affecting lands out of the county in which such notary resided, are hereby confirmed and made valid, if otherwise correct. SEC. 11. This act to take effect and be in force from and after the first dayv of June next. Approved February 3, 1859. CHAPTER CLIV. (Chapter LII1. Acts of 1858.) AN ACT to Prevent Nuisances. Be it enacted by the Governor and Legislative Assemnbly of the Territory of Kansas: Pe1nalty for put- SECTION 1. That if any person or persons shall put any dead ting any dead animal into any animal carcass, or part thereof, into any well, or into any spring, well, spring or branch. brook or branch of running water, of which use is made for domestic purposes, every person so offending shall, on convic Cu. 154.] NUISANCES. 727 tion thereof, be fined in any sum not less than two nor more than one hundred dollars. SEC. 2. That if any owner or owners, occupier or occupiers Owners of slaughter houses of any slaughter house, wherein any hogs, beeves or other ani- permittingl slaughtered ano mrals are slaughtered, either in the said slaughter house or on imnals to remain unclean to anthe premises of the said owner or owners, occupier or occupiers, noyence of citishall permit the same to remain unclean to the annoyance of the citizens of this Territory, or any of them, every person so offending shall forfeit and pay for every such offence any sum Penalty. not less than five nor more than fifty dollars, together with costs of suit; and if said nuisance be not removed within five days thereafter, it shall be deemed a second offence against the provisions of this act; and every like neglect of each succeeding five days thereafter, shall be considered an additional offence against the provisions of this act. SEC. 3. That if any owner or owners, occupier or occupiers Owners of soap, candle and oil of any soap factory, candle factory, oil factory, glue factory, factgrsienspermit varnish factory, pork house, sausage house or lard house, shall main unclean. permit the same to remain unclean, to the annoyance of the citizens of this Territory, or any of them, to a greater extent than is required for the necessary prosecution of their business, every person so offending shall forfeit and pay, for every such Penalty. offence, any sum not more than forty nor less than ten dollars, together withl costs of suit; and if said nuisance be not removed within five days thereafter, it shall be deemed a second offence against the provisions of this act; and for every like neglect of each succeeding five days thereafter, shall be considered an additional offence against the provisions of this act. SEC. 4. That if any person or persons shall put any part of Penalty forputting any carcass the carcass of any dead animal into any river, creek, pond, in any river, creek, road, &c. road, street, alley, lane, lot, field, meadow or common; or if the owner or owners thereof shall knowingly permit the same to remain in any of the aforesaid places, to the injury of the health or to the annoyance of the citizens of this Territory, or any of them, every person so offending shall, on conviction thereof, before any justice of the peace of the-proper township, forfeit and pay a sum not less than one dollar nor more than five dollars; and every twenty-four hours said owner may permit the same to remain, thereafter, shall be deemed an additional offence against the provisions of this act. SEC. 5. That all offences against the provisions of this act Offenders, how shall be prosecuted in an action of debt, in the name of the Prosecuted. 728 OATHS: OFFICIAL. [CH. 155. township, before any justice of the peace of the proper township, for the use of said township; and all forfeitures and penalties, accruing under the provisions of this act, shall be paid into the township treasury of the proper township, within twenty days after the same shall have been collected; Provided, that if the defendant shall consider himself aggrieved by the decision of said justice, he shall have right to an appeal, as in other cases. Approved February 12, 1858. CHAPTER CLV. (Chapter CII. Acts of 1859.) A ACT Regulating Oaths and prescribing the Form of Oaths of Office. Be it enacted by the Governor and Legislative Assembly o/ the Territory of Kansas: SECTION 1. That every judge, justice of the peace, clerk of a court of record, clerk of the board of supervisors or notary public, within this Territory, shall be authorized to administer oaths. SEC. 2. All oaths in this Territory, shall be administered by laying the hand on the Holy Bible, or they may swear with uplifted hand or affirm. Form of oath SEC. 3. All oaths shall commence and conclude as follows: and affirmation. "nL You do solemnly swear, &c., so help you God." Affirmation shall commence and conclude as follows: "You do solemnly, sincerely and truly declare and affirm. &c., and this you do under the pains and penalties of perjury." Of perjury. SEC. 4. All oaths and affirmations alike subject the party who shall falsify them to the pains and penalties of perjury. Oath to be taken SEC. 5. All officers, elected or appointed under any existing by officers. or subsequently enacted laws of this Territory, shall take and subscribe the following oath or affirmation: "I do solemnly swear, (or affirm, as the case may be) that I will support the constitution of the United States, and that I will support and sustain, the provisions of an act entitled "An Act to organize the Territories of Nebraska and Kansas," and faithfully and impartially, and to the best of my ability demean myself in the discharge of my duties in the office of." SEC. 6. This act to take effect from and after the first day of June next. Approved February 7, 1859. CH. 156.1 OATHS, ETC. 729 CHAPTER CLVI. (Chapter LI. Acts 186]1.) AN ACT prescribing the Form of Oath or Affirmation, and Qualification of Officers, Privates and Musicians. Be it enacted by the leis8lature of the State of Kansas: SECTION 1. That each and every member of any military Evrvmeleor of a military company hereafter to be organized under the laws of this State, company shll before the officers are commissioned, and before said company shall be considered competent to render military service, to receive arms, or to participate in regimental or brigade elections, shall take and subscribe to, before an officer authorized to administer oaths, the following oath or affirmation "I, - Form of oath -, do solemnly swear (or affirm) that I will support, protect and defend the constitution and government of the United States, and the constitution and government of the State of Kansas, against all enemies, whether domestic or foreign, and I will bear true faith and lovalty to the same; and, further, that I do this with, a full determination and pledge, without any reservation or evasion, to perform, in good faith, all the duties which may legally be required of me, so help me God;' and that a copy of such oath or affirmation, duly subscribed, shall be forwarded to the Governor of this State, and no commission shall be given to any officer until the provisions of this act shall have been fillly complied with. SEC. 2. That, within twenty days from and after the passageken and forward of this act, it shall be, and is hereby made the duty of all offi- edto governor cers, privates and musicians, now belonging to any military company, organized under the laws of this State, to take, subscribe, and forward to the Governor, the oath or affirmation prescribed in the foregoing section of this act; and, that any refusal on the part of any officer, to comply with the provisions of this act, shall work a revocation of his commission, and shall be so declared by the Governor of this State; and that, upon Refusal shall work revocation any refusal on the part of any non-commissioned officer, private of commission. or musician, to comply with the\ provisions of this act, the name of such non-commissioned officer, private or musician, shall be stricken from the roll of his company. SEC. 3. This act to take effect and be in force from and after When to take effect. 730 ORDERS: COUNTY. [CH. 157. its publication once, in some newspaper printed at the city of Topeka. Approved May 10, 1861. I hereby certify that the above bill became a law, by publication in the "Topeka State Record," May 11, 1861. J. W. ROBINSON, Secretary of State. CHAPTER CLVII. (Session, 1862.) AN ACT to Restrain the Issuing of County Warrants. Be it enacted by the Legislature of the State of Kansas: Countytax tode- SECTION 1. It shall be the duty of the Board of County fray county charges. Commissioners of each County in this State to levy in each. year, in addition to the taxes for other purposes, a county tax sufficient to defray all county charges and expenses incurred during such year, and twenty per centumrn in addition to make up for delinquent taxes of the same) year, and it shall be Restrictions as unlawful for any Board of County Commissioners or County to amount of warrants may Clerk to issue county warrants or orders in any one year to a be issued. greater amount than the amount of the county tax levied in the same year to defray county charges and expenses, less the amount levied for delinquencies. How accounts to SEC. 2. It shall be unlawful for any Board of County Combe allowed. ao rnissloners to allow any greater sum on any account, claim, or demand, against the county, than the amount actually due thereon, dollar for dollar, according to the legal or ordinary compensation or price for services rendered, salaries or fees of officers, or materials fiurnished, or to issue county warrants or orders upon such accounts, claims, or demands, when allowed for more than the actual amount so allowed, dollar for dollar, and no county warrant or order shall be issued unless an account containing the several items thereof, vei ified by Affdavit, what affidavit setting forth that the same is just, and correct, and to state. remains due and unpaid, and that the amount claimed thereon is actually due, according to the legal or ordinary price for the services rendered or materials furnished, as the case may be, shall have first been presented to the Board of County Commissioners, and allowed as hereinbefore; provided that the Rents, &c,erx- County Board may adopt such measures as they may deem cepted from re- may strictions of this proper to liquidate claims against the county for rents, fuel, lights and stationery. CH. 158.] ORDERS: COUNTY. 731 SEC. 3. Any Board of County Commissioners, or any Coullty Pealty for violation of tiths Commissioner, or County Clerk, who shall violate any of theaCt, provisions of this act, or neglect or refuse to perform any duty herein imposed, shall be deemed guilty of a misdemeanor, and upon conviction thereof, in a court of competent jurisdiction, shall be subject to a fine of not less than ten dollars, nor more than ten thousand dollars and shall moreover be removed from office. SEC. 4. This act shall take effect and be in force from and after its publication in the State Record, and upon its passage. The Secretary of State shall immediately publish the same. Approved March 5, 1862. CHAPTER CLVIII. (Session, 1862.) AN ACT in relation to lost or destroyed County Orders, or Warrants. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That if any warrant or order against any county When wMarrant or order lost or shall be lost or destroyed, so that the same cannot be presented destroyedt, doplifor payment, by the person entitled thereto, it shall be the duty of the clerk of the county commissioners, at any time be-fore the warrant or order shall be paid by the county Treasurer, to issue a duplicate warrant, or order, to the person or persons having so lost any warrant, or order, as aforesaid, on such person or persons filing with the said clerk an affidavit, sworn before some person duly authorized to administer oaths, stating the loss or destruction of any such warrants or order. SEC. 2. The said clerk shall immediately certify the same to the county Treasurer, who shall thereby be authorized to register said duplicate the same, as its original was registered, and pay said duplicate in like manner as its original. SEC. 3. Before the issuing of said duplicaie it shall be the Person applyinlg for duplicate of duty of the said clerk to require the person applying for saidlost order or warrant shall duplicate, to make affidavit that he never assigned the same or makeallefavit parted with his interest therein, and to give him satisfactory security for the refunding of the amount together with all costs and charges, should the county be afterwards compelled to pay the original warrant or order. SEC. 4. This act shall take effect and be in force from and after its publication in the statute book. Approved February 20, 1862. 7.32 PATENTS-PARTNERS, DECEASED. [CPf. 159-160. CHAPTER CLIX. (Session, 1862.) AN ACT to provide for the Recording of Land Patents. Be it enacted by the Legislature of the State of Iavnsas: Land patents SECTION 1. That all patents for lands lying within the State may be recorded in the office of of Kansas, granted to any person by the President of the of deeds. United States, may be recorded in the office of the Register of Deeds, in the proper county in which such lands are situate, and the Recorder shall be allowed the same fees for recording such patents as are allowed by law for the recording of deeds, and other [and other] instruments of writing. Copies to be re- SEC. 2. That all copies of patents so recorded, or which may ceived as evi5dece. have been heretofore recorded, duly certified by the Register of Deeds, with his official seal thereto affixed, shall be received in all courts and places in this State as prima facie evidence of the existence of such patents and conclusive evidence of the existence of such record. SEC. 3. This act shall be in force from and after its publication. Approved February 21, 1862. CHAPTER CLX. (Acts of 1860, Chapter XCIII.) AN ACT to Facilitate the Settlement of the Estates of Deceased Partners. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Association of SECTION 1. That any company or association of individuals, individuals deemed copart- heretofore formed or hereafter to be formed, not incorporated, nership, when. [Soeech 91 —46.] who do or shall hold any right, title or interest, legal or equitable, in or to any land in this Territory, devoted, by the mutual agreement of the persons forming such company or association, to division and sale as town or city lots, blocks or shares, for the profit of such company, or the several members thereof, shall be deemed, as to such property, a copartnership. In case of death SEC. 2. In case of the death of any one or more of the mernof any of said partners. bers of such copartnership, whether such death shall have heretofore taken place or shall hereafter take place, such lands, whether the legal title thereof be in such company or associa CH. 160.] PARTNERSSHIP. 733 tion or any of them, or held in trust for them, or in whatsoever manner or in whose name soever such legal title is or shall be held, shall be deemed assets of such copartnership, and the survivor or survivors shall have the right to sell and dispose of the same pursuant to such agreement, and to collect the dues, pay the debts and close up all the business of such copartnership, in like manner and with like effect as if the property of said copartnership were personal property only; and shall account to and with the administrator or administrators, executor or executors of such deceased partner or partners, and pay to him or them such balance or balances as- would have been due to such deceased partner or partners on such accounting, hod he or they been living. SEc. 3. The heir or heirs at law of every such deceased part- Heirs shall fulfill agresment of ner shall fulfil the agreement of his or their ancestor, so de- ancestor. voting such land to division and sale, by joining with the surviving partner or partners or with the trustee or trustees, if any, holding the title, or with both such survivors and trustees, as may be necessary, in executing, acknowledging and delivering all deeds of conveyance necessary to convey to the purchasers of such lots, blocks or shares the parcels so purchased by them respectively, whether the agreements with such purchasers to sell the same were made by the copartnership during the lifetime of the said ancestor, or by the surviving partner or partners, after his death, and whether the same were made before or since the passage of this act. SEC. 4. If no map or plat of such land have been made and Heirsshall join in filing plat, acknowledged by such doceased partner or partners, agreeably whiclh shall be of same fores as if to the provisions of an act entitled' An act concerning the donebydeceasplats of cities and towns," passed February 11, A. D. 1859, pat such heir or heirs shall join with such surviving partner or partners in so acknowledging and filing such plat; and such acknowledgment shall have the same force and effect as if done by such deceased partner in his lifetime; Provided, That such Proviso. heir shall be required to pay no part of the expense of preparing such deeds or plats or of the officer's fees for taking the acknowledgments thereof. If such heir or heirs shall refuse or Heirs may be compelled by neglect so to execute, acknowledge and deliver such deeds or court to executw plat, the district court, in an action duly prosecuted in the glat proper county, by such surviving partner or partners, against such heir or heirs, shall compel the execution, acknowledgment and delivery thereof. 47 734 PAITNERSHXIP. [OH. [. 16. If in action SEC. 5. In case of the death of any such partner or partners, ha it deppetrts leaving a minor heir or heirs, the surviving partner or partners a-,reed to divisieonaodsalev- may commence an action in the district court in the county court shall render judgment where such land or the greater part thereof is situate, against that surviving partners may such minor heir or heirs, and may join all the minor heirs of all sell and convey ich property. such deceased persons partners in one action; and, if it shall be made to appear to the court that the plaintiff and said decedent or decedents, *in his or their lifetime, by their mutual agreement,'devoted such land or any part thereof to division and sale as town or city lots, blocks or shares, for the profit of the said plaintiff and said decedent or decedents; that said decedent or decedents died without having executed the conveyances necessary to convey his or their interest therein to the several purchasers of such lots, blocks or shares, and that the defendant or defendants is or are the minor heir or heirs of such decedent; and it not appearing that such mutual agreement was abrogated or annulled during the lifetime of such decedent or decedents, such court shall render a judgment, adjudging that such defendants are minor heirs at law of such decedent or decedents, stating the time of the death of such decedent or decedents, and adjudging that the plaintiff or plaintiffs is or are surviving partner or partners of such decedent or decedents, and held said land as such, within the true intent and meaning of this act, and, as such, are entitled to sell and convey all the right, title and interest, legal and equitable, of Judgment inay the defendants therein. Such judgment shall describe the be recorded with same force as lands adjudged to be conveyed, and, thereafter, the deed of 4deed. such plaintiffs, as surviving partners and of the trustee or trustees, if any, holding the title purporting to convey all the right, title and interest of said minor heirs, or the right, title and inteiest of the deceased partner or partners, at the time of his or their death or deaths, shall be sufficient to convey to the purchaser all the right, title and interest, at law and in equity, of said minor heir or heirs therein. Such judgment may be recorded by the register of the county where the lands lie, as deeds are recorded, and with the same force and effect. In case convey- SEC. 6. In case such surviving partner or partners, after the ances made before such death of such deceased partner or partners and before the renudgment. dition of such judgment, shall have conveyed, as such surviving partner or partners, together with such trustee or trustees, if any, any such lots, blocks or shares to purchasers by deeds, purporting, on their face, to convey the right, title and interest oG. 160.,] PPARTNERSHIP. 735 of the surviving partner or partners, and that of the deceased partner or. partners at the time of his or their death, or of such minor heirs, from and after the rendition of such judgment, such deeds shall be as effectual to convey all such right, title and interest, ant law and in equity, of such minor heir or heirs, party or parties to said action, as if the same had been made, executed and delivered after the rendition of such judgment; and all such right, title and interest, passed by such deeds, shall relate to and be deemed to have passed at the times such deeds were so executed and delivered. SEC. 7. If such deceased partner or partners, leaving suchIf deceasedpartners have not minor heir or heirs, shall not have acknowledged a map cr plat acknowledged map or plat. of such lands, as aforesaid, the surviving partner or partners may, at any time hereafter, acknowledge such map or plat as such surviving partner or partners, and cause the same to be filed and recorded according to law; and such acknowledgment, filing and recording, with the acknrowledgment of such heirs of full age, if any, shall have the same force and effect as if the same had been done by all the partners in the lifetime of said deceased partner and before any such land had been sold by such partners. SEc. 8. If the mutual agreement, mentioned in section one of If agreemeentsbe partly performtlis act, be not in writing, but the parties thereto have caused ed,laTyblhelalthe land so agreed to be divided and sold to be mapped or plat- dathlof artner. ted, and have sold or contracted with purchasers to sell all or any portion of said land, in lots or blocks described upon said map or plat, such agreement is, by such part performance rendered valid and effectual in equity as to all the land so platted, and may be enforced pursuant to the provisions of this act or otherwise, as if the same were in writing. SEC. 9. Before any such surviving partner or partners shall Surviving partnets to give be entitled.to demand of the heirs at law of such deceased part- bonds for faith-:'~.''0~ ~ -' ~ ~.: i -- - ful accounting ner conveyances, pursuant to section three of this act, or to to executors, &c. commence an action against such minor heirs, pursuant to section five thereof, he or one of them shall give to the executor or executors, administrator or administrators, if any,, of such deceased partner, a bond in such sum and with such surety as the probate judge of the county where such lands or the greater part thereof are situate, shall, in writing thereon, approve as sufficient, conditional that, after settlement of the partnership business and payment of the partnership debts, and final accounting with all surviving partners and all executors and, 736 PARTNERsHIP. [CH. 160~ administrators of deceased partners, he will pay to such executor or executors, administrator or administrators, such sumslas may be found due from him, the said principal obligor, to him or them the said obligee or obligees; and, if there be several of such surviving partners, each of them severally shall give a like If any do not bond, to be approved as aforesaid, or, in default thereof, such as give bonds. do give such bond shall have the sole control of the assets of such co-partnership, and, until a final accounting, be alone entitled to receive any portion of the avails of the sale of said lands. Distrit court to SEC. 10. The several district courts shall have the same have same power as if asset power to compel the settlement of the affairs of such co-partnerwere personal property. ship and to protect and enforce the rights of all persons interested therein, as if the assets of such co-partnership were personal property only. When persons SEC. 11. When two or more persons shall have mutually ulay f land, &.,agreed to lay off certain lands in city or town lots or blocks, and one or more and to distribute such lots or blocks among themselves, and eaydnoe mthye have caused such lands to be surveyed into such lots or blocks, enforce such partners to make and a map or plat thereof to be made pursuant to such agreeconreyance. ment, and have agreed to determine the several lots or blocks to belong to each by lot or chance, or in any other specified manner, and have proceeded accordingly and so determined the several lots or blocks to belong to each in severalty, and one or more such persons, pursuant to such agreement and determination, shall have received a conveyance or conveyances of their lots or blocks, so determined to belong to him or them or any part thereof, and all others of said persons, not having received such conveyances, shall be able and willing to fulfil such agreements by making the necessary conveyances, although none of such agreements shall have been made in writing, and whether the same were made before or after the passage of this act, they shall be as against such as have received such conveyance or conveyances valid in equity; and, upon action duly brought, the specific performance thereof, by making all conveyances necessary to fulfil and carry into effect such agreements and determination, shall be adjudged and enforced. SEC. 12. This act shall take effect and be in force from and ~after its passage. Approved February 24, 1860. Cii. 161.] PARTNERSHIPS, LI1ITED. 737 CHAPTER CLXI. (Chapter XCIV. Acts of 1860.) AN ACT for the Formation of Limited Partnerships. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. Limited partnerships for the transaction of any Partnerships may be formed mercantile, mechanical or manufacturing business, within this for certain purposes only. Territory, may be formed by two or more persons, upon the terms, with the rights and powers, and subject to the conditions and liabilities hereinafter provided; but nothing in this chapter contained shall be construed to authorize any such partnership for the purpose of banking or insurances. SEC. 2. Limited partnerships may consist of one or more Responsibility of general and persons, who shall be called general partners, and who shall be pecial partners. jointly and severally responsible as general partners now are by law, and of one or more persons who shall contribute a specific amount of capital, in cash or other property, at cash value, to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the amount of the fund so contributed by them respectively to the capital, except as hereinafter provided. Se. 3. The general partners only shall be authorized to Generalpartner only transact transact business, to sign for the partnership and to bind the business.an same. SEc. 4. The persons desirous of forming such partnership Personsforming partnership shall make and severally sign a certificate, which shall contain: hall make and sign certificate. First, The name or firm under which the partnership business is to be conducted. Second, The general nature of the business to be transacted. Third, The names of all the general and special partners interested therein, distinguishing which are general partners and which are special partners, and their respective places of residence. Fourth, The amount of the capital stock which each special partner shall have contributed to the common stock. Fifth, The period at which the partnership is to commence, and the period when it will terminate. SEC. 5. Such certificate shall be acknowledged by the several Certificate shall be acknowledged persons signing the same, before some officer authorized by law before proper to take the acknowledgment of deeds, and such acknowledgment shall be made and certified in the manner provided by law for the acknowledgment of deeds for the conveyance of land. 738 PARTNERSTIPS, LIMITED. [OH. 161. cith county SEC. 6. The certificate, so acknowledged and certified, shall clerk, be filed in the office of the county clerk of the county in which the principal place of business of the partnership shall be situated, and shall be recorded at length by the clerk in a book to be kept by him; and such book shall be subject, at all reasonable hours, to the inspection of all persons. If business car- SEC. 7. If the partnership shall have places of business sitried on in different counties. uated in different counties, a transcript of such certificate, and of the acknowledgment thereof, duly signed by the clerk in whose office it shall have been filed, under his official seal, shall be filed and recorded, in like manner, in the office of the clerk of every such county; and the books containing such records shall be subject to inspection in like manner above directed. Affidait filed of SEC. 8. At the time of filing the original certificate and the amount of mon- ey or property acknowledgment thereof, as before directed, an affidavit of one contributed. or more of the general partners shall, also, be filed in the same office, stating the amount of money or other property, at cash value, specified in the certificate to have been contributed by each of the special partners to the common' stock, has been actually: and in good faith contributed and applied to the same. Jo partnership SEC. 9. No such partnership shall be deemed to have been formed until re- quirements corn- formed until such certificate, acknowledgment and affidavit shall plied with. If false state- have been filed as above directed' and, if any false statement ment made. be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof as general partners. Terms of part. SEC. 10. The partners shall publish the terms of the partnership to be published. nership, when recorded, for at least four weeks immediately after the recording thereof, in two newspapers, to be designated by the clerk of the county in which such record shall be made; and if such publication be not made, the partnership shall be deemed general. Affidavit ofprin. SEa. 11. Affidavits of the publication of such notices, by the ters evidence of ublication. printers of the newspapers in which the same have been published, or some one in their employ knowing of such publication, may be filed with the clerk directing the same, and shall be evidence of the facts therein contained. TUpon:renewalor SEC. 12. Upon the renewal or continuance of a limited partcontinuance of partnerships like nership beyond the time originally agreed upon for its duration proceedings had. a certificate shall be made, acknowledged, recorded and published, in the like manner as is provided in this chapter for the formation of limited partnerships; and the affidavit of one or CH. 161.. PARTNERSHIPS, LIMITED. 739 more of the general partners, as above provided, shall, also, be filed with the proper county clerk as. aforesaid; and every such Demed general partnership if partnership, so continued, which shall not be renewed or con- this act ot comtinued in conformity with the provisions -of this section, shall be deemed a general partnership. SEC. 13. Every alteration which shall be made in the nanes Alteration made in partnership of the partners, the nature of the business, in the capital, or in mkes it general unless renewed. the shares thereof, or in any other matter specified in the original certificate, shall be deemed a dissolution of such limited partnership; and every such partnership which shall in any way be carried on after such alteration shall have been made shall be deemed a general partnership, unless renewed as a special partnership, according to the provisions of the last preceding section. SEC. 14. The business of the partnership shall be carried on Business carried on under firmn. under a firm, in which the names of the general partners only shall be inserted, without the addition of the word "Company" or anTy other general term; and, if the name of any special If special part. partner shall be used in said firm, with his consent or privity, shall be deemed general. or if he shall personally make any contract respecting the concerns of the partnership, with any person except the general partners, he shall be deemed and treated as a general partner. SEC. 15. During the continuance of the partnership under the No capital withdrawn during provisions of this chapter, no part of the capital stock thereof partnership s as to reduce be. shall be withdrawn, nor any division of interest or profits belowcertificate. made, so as to reduce said capital stock below the sum stated in the certificate above mentioned; and if at any time during If assets not sufficient to meet the continuance or at the termination of the partnership, theadebts, special dpartners responproperty or assets shall not be sufficient to pay the partnership tiblte to what e debts, then the special partners shall severally be held responsible for all sums by them received, withdrawn or divided, with interest thereon from the time when they were so withdrawn or divided respectively. SEc. 16. No general assignment by such partnership of its No generalasproperty or effects, in case of insolvency, or where their goods,less enrtald and estates are insufficient for the payment of all their debts,proision mad shall be valid, unless it shall provide for the distribution of all the partnership property and effects among all the creditors, in proportion to the amount of their several claims. SEC. 17. In case of an assignment, as provided for in the InXca'e~of assgn last preceding section, the assent of the creditors shall be pre- editors presumed, unless they shall, within sixty days after notice thereof,they object. dissent, either expressly or by some act clearly implying such 740 PARTITION. [Ci. 162. otice muchsbe dissent; and no such assignment shall be valid, unless notice assignment. thereof shall be published in some newspaper printed in the county where the place of business of the parties making it is situated; or, if no newspaper be printed il such county, then in some newspaper printed-in an adjoining county, or at the seat of government, within fourteen days after making such assignment. against eneral and SEC. 18. All suits respecting the business of such partnership partners, except shall be prosecuted by and against the general partneris only, when. except in those cases in which provision is made in this chapter that the special partners shall be deemed general partners, and that special partnerships shall be deemed general partnerships, in which cases all the partners, deemed general partners, may join or be joined in such suits; and excepting, also, those cases where special partners shall be held severally responsible on account of any sums by them received or withdrawn from the common stock, as above provided. a dissolution SEC. 19. No dissolution of a limited partnership shall take to take place un-. in certifimespecified plac except by operation of law, before the time specified in Oess notice re- the certificate before mentioned, unless a notice of such dissocorded and published. lution shall be recorded in the registry in which such certificate, or the certificate of renewal or continuance of the partnership, was recorded, and in every other registry where a copy of such certificate was recorded; and unless such notice shall, also, be published four weeks, successively, in some newspaper printed in the county where the certificate of the formation of such partnership was recorded; or, if no newspaper shall, at the time of such dissolution, be printed in such county, then in some newspaper printed at the seat of government. SEc. 20. In all cases, not otherwise provided for in this chapter, the members of limited partnerships shall be subject to all the liabilities and entitled to all the rights of general partners. Approved February 27, 1860. CHAPTER CLXII. (Chapter XCII. 1860.) AN ACT to Provide for the Partition of Real Estate. Be it enacted by the Governor and Legislative Assemnbly of the Territory of Kansas: Joint tenants, SECTION 1. That all joint tenants, tenants in common and e., may be com and copartners [coparceners] of any estate in lands, tenements and C.u 162.] PARTITION. 741 hereditaments, within this Territory, may be compelled to pelled to make or suffer partimake or suffer partition of such estate or estates, in manner tion. hereinafter prescribed; and, where such estate or estates are situated in one county, the proceedings under this act shall be had in the district court in such county; and, when situate Proceedings had in what court. in two or more counties, the proceedings under this act may be had in the district court in any county in which a: part of such premises shall be situate, at the election of the demandant of partition. SEC. 2. That any person or persons entitled to partition of Persons entitled to partition to his, her or their estate or estates, under this act, may file his, file petition in her or their petition in the district court, praying that partition of such estate or estates may be made, which petition shall set forth the nature of the title of the demandant, the tract or tracts of land, the tenements or hereditaments of which partition is demanded, and, also, the name or names and place of residence of each joint tenant, coparcener or tenant in common, with such demandant, if they shall be known to such delnandant; and if, on examination, it shall appear to the court that the demandant hath a legal right to If such person haslegal right any part of such estate or estates, the court shall proceed, in to any part of estate, court the term in which such petition may be filed, to order a parti- shall order partition. tion to be made in the manner prescribed by the provisions of this act. SEC. 3. That the demandant in any petition shall give notice, Demandant to give notice to in some newspaper in general circulation in each county where persons interestthe land lies, or shall give personal notice, in writing, to each and every person concerned, their agent or attorney, at least forty days previously to the term of the court next after the filing his petition, setting forth the pendency and demand thereof. SEC. 4. That, whenever it shall appear to the court that due When such notice has been notice hath been given as aforesaid, and no sufficient reason given, court may order partition, shall appear why partition should not be made,.the court shall how. proceed to order the partition in favor of such demandant or all parties in interest, and shall issue their writ, directed to the sheriff of their county; or, in case the estate or estates of which partition is sought, shall be situate in more than one county, then to the sheriff of either of the counties in which the estates may be, commanding him, that, by the oaths of three judicious and disinterested freeholders of the vicinity, to be named by said court, he cause to be set off and divided tu the 742 PARTITION. [CH. 162. demandant, or each party in interest in said petition, such part and proportion of such estate or estates as the court shall have ordered. examine suche SEC. 5. That, in making such partition, it shall be the duty estate and make partition. of said freeholders to view and examine such estate or estates, and, on their several oaths or affirmations, set apart the same in such lot or lots as will be most advantageous and equitable, having due regard to the improvement, situation and quality of the different parts of such estate or estates. When partition SEC. 6. That, when partition of more than one tract is deof more than one tact is dema-manded in the same petition, said freeholders shall set off to each of the petitioners or parties in interest, his proper proportion in' each of the several tracts of which partition is demanded, unless the several tracts of which partition is demanded shall be owned by the same proprietors in the same proportion in each tract, in which case the whole share of any proprietor in and to all the several tracts may be set off to such proprietor according to the best discretion of said freeholders. Persons of whom SEC. 7. That before a writ shall have issued to the sheriff, partition is demandedmay ap- the person or persons of whol partition is demanded shall pear and consent to plartition be- have the right of appearing in court, in person or by attorney, fore writ issues. and of consenting to a partition of such estate or estates, agreeably to the prayer and facts set forth in thepetittion, which amicable partition, made and recorded, shall be evalid between the parties thereto. When partition SEC. 8. That, when any writ of partition shall issue as aforecannot be made es withotinjury said, if the fireeholders, who are directed to make such partiof value. i e tion, shall be of opinion that the estate or estates cannot be divided according to the demand of the writ without a manifest injury of the value thereof, the said freeholders shall then make and return to the court a just valuation of such estate or estates, whereupon, if said court shall approve of the said return,' and, if any one or more of the parties shall elect to take the said estate or estates at such appraised value, the same shall be adjudged to him, her or them, he, she or they paying to the other party or parties, his, her or their proportion of the appraised value thereof, according to his, her or Sheriff to make their respective rights; and, -on payment being made the oonveyance. sheriff shall, according to the order of the court aforesaid, make and execute conveyances to the party or parties electing to take the samte. CH. 162.] PARTITION. 743 SEC. 9. That, in case the parties shall not agree, as provided In case parties cannot agree, in the preceding section, and no one or more of them will estatetobo sold at auction. take the said estate or estates on the terms aforesaid, then the said court may, at the instance of the demandant in the petition, make an order for the sale of said estate or estates, at public auction, by the sheriff who shall have executed the writ hereinbefore provided, or his successor in office; and it shall be the duty of the sheriff executing said writ to sell the same at the door of the court house, unless the court. for good cause, shall direct the same to be -sold on the premises; in which case they shall be sold on the premises, agreeably to such direction; which sale shall be made and conducted by such sheriff, in all respects, as is or may be provided for the sale of real estate upon execution, except that it shall not be necessary to appraise said estate or estates previous to the sale; but said estate or estates shall not be struck off or sold by Ft not leto ben such sheriff for less than two-thirds of the appraised valuet;~ otfhiidftlut thereof returned by the freeholders. SEC. 10. That the sheriff or other officer directed by the Sheriftoadminister oath to court of any county within this Territory to make partition offreeholders. lands and tenements, in pursuance to the provisions of this act, is hereby authorized to administer the necessary oath to the freeholders summoned by him for that purpose. SEc. 11. That on return of the sheriff of his proceedings, f tsale capproved by the court, the same shall be subject to the examination of the court; sheriff toexeand, if sale has been made and the same is appraised [approved] by the court, the sheriff, on receiving payment of the consideration money, or taking sufficient security thereof to the satisfaction of the court, shall execute and deliver a deed or deeds to the purchaser or purchasers of the estate or estates so sold; and the said money or securities shall be distributed ooy receved to be distributed and paid, by order of said court, to and amongst the several among parties entitled thereto. parties entitled to receive the same, in lieu of their respective parts and proportions of said estate or estates, according to their just rights and proportions. SEC. 12. That, after such estate or estates shall have been Tf salenotmade, alias order may once offered and not sold, an, alias order may issue for the sale issue, and revaluation may be thereof, as often as need be; and it shall be competent for the orderCed. court who shall have ordered such sale, at their discretion, to order a revaluation thereof, by three judicious, disinterested freeholders of the county, to be appointed by the court, and to direct a subsequent sale thereof at not less than two-thirds of 744 PARTITION. [Ci. 162. such revaluation; or, if said court think it more expedient for the interest of all parties concerned, they may order a sale without such revaluation, at not less than such reduced proportion or proportions of the appraised value, as said court may direct. Payments for es- Sec. 13. That, in all sales made by the sheriff pursuant to tate, how made. I - an order in case of partition, unless the court shall, by special order, direct and require, on good cause shown, the sale to be made for cash down, the purchase money shall be payable, one-third on the day of sale, one-third in one year, and onethird in two years thereafter, with interest; the deferred payments to be secured to the parties, agreeably to the respective interests, according to the eleventh section of the provisions of this act. Guardian of SEC. 14. That the guardian or guardians of any minor heir minors may do what. or heirs shall be empowered, on behalf of their ward or wards, to do and perform any act, matter or thing respecting the partition of any estate or estates under this act, and to elect, on behalf of such ward or wards, to take said estate or estates, when the same cannot be divided without injury, as mlentioned in the eighth section of this act, and make payments therefor Acts legalized. on behalf of said ward or wards; and such acts and things, done by said guardian or guardians, shall be as valid in law as if the same had been done by such ward or wards, after his, her or their arrival at full age. Privileges of SEC. 15. That one parcener may maintain an action against parceners. another, but no parcener shall have or possess any privileges over another, in any election, division, partition or matter to be made or done concerning lands which have descended. Costs taxes ac- SEC. 16. That the court, before whom any partition shall be cording to equity. made, shall tax the costs and expenses which may accrue in the cause, according to equity, having regard to the interest of the parties, and the benefit each may derive from such partition, and shall issue execution therefor against each party, if need be, his, her or their goods, chattels, lands and tenements, as in other cases. SEC. 17. This act to take effect and be in force from and after its passage. Approved February 23, 1860. CH. 163.] POOa. 745 CHAPTER CLXIII. (Session 1862.) AN ACT for the Relief of the Poor. Be it enacted by the Legislature of the State of Kansas SECTION 1. That the mayor and council of the incorporated Who shall be overseers of the cities and township trustees of the several civil townships of'poor. this State, shall be the overseers of the poor within their respective townships or cities, and shiall perform all the duties with reference to the poor of their respective townships that may be prescribed by law. SEc. 2. That every mayor and council of the cities and trns- Designation. tee of the townships shall, in discharging the duties prescribed in this act, be designated overseers of the poor. SEC. 3. In all suits and proceedings in favor of or against SuitS, how to be n YV. -,, ~- NI~-VN VILM r-~V IV-^-~brought. any such overseers of the poor, connected with or pertaining to the poor of the respective townships and cities, the same shall be conducted in favor of or against such township or city in its corporate name. SEC. 4. Every county shall relieve and support all poor and county shall - support the poor indigent persons lawfully settled therein, whenever they shall stand in need thereof, and the board of county commissioners may raise money for the support and employment of the poor in the same way and manner as in the twenty-ninth section of this act is provided. SEC. 5. Legal settlements may be acquired in any county, Legal settlements, how ac. so as to oblige such county to relieve and support the persons quired. acquiring such settlement, in case they are poor and stand in need of relief, as follows: First, A married woman shall M1arried woman shall have the always follow and have the settlement of her husband, if he ttlemsnt of her husband. have any within the State, otherwise her own at the time of marriage, and if she then had any settlement it shall not be lost or suspended by the marriage; and in case the wife shall be removed to the place of her settlement, and the husband shall want relief, he shall receive it in the place where his wife shall have the settlement. Second, Legitimate children shall Legitimate children shall have follow and have the settlement of their father, if he have the settlementof the father. any within the State, until they shall gain a settlement of their own; but, if the father have no settlement, they shall in like manner follow and have the settlement of their mother, if she have any. Third, Illegitimate children shall follow and have 746 POOR. [CiH. 163. Illegitimate the settlement of their mother, at the time of their birth, if children. she then have any within the State; but neither legitimate nor illegitimate children shall gain a settlement by birth in the place where they were born, unless their parent or parents had a settlement therein at the time. Fourth, Every male ale person and person and every unmarried female over the age of twentyunmarried fe- b e male, one years, who shall have resided in any county in this State six months, shall thereby gain a settlement in such county. Minorald mar- Fi-lh, Every minor whose parents, and every married woman ined woman. m prt whose husband has no settlement in this State, who shall have resided six months in any county in this State, shall thereby Apprentice. gain a settlement in such county. Sixth, Every minor who shall be bound as an apprentice to any person, shall immlediately upon such binding, if done in good faith, thereby gain a settlement when his or her master or mistress has a settleContinuance of ment. Seventh, Every settlement when once legally acsettlement. quired, shall continue until it shall be lost or defeated by acquiring a new one in this State, or by willful absence from the county in which such legal settlement had been gained, for six months or more, and upon acquiring a new settlement, or upon the happening of such willful absence, all former settlement shall be defeated and lost. And the provisions of this section shall apply to cases of settlements begun to be acquired, or lost, or defeated, as well before as after the provisions of this act shall-go into effect. Overseers in SEC. 6. The overseers of the poor, in each township or city, townships and cities. shiall have the oversight and care of all poor persons in their township or city, so long as they remain a county charge, and shall see that they are properly relieved and taken care of in the manner required by law. Proposalsfor SEC. 7. It shall be the duty of the overseers of the poor, maintenance of the poor, when in such counties as have in them no common poor house esto be advertised for. tablished by law, two weeks next preceding the first Monday of May in each year, to give public notice, by having published in the newspaper or newspapers in their respective counties, or by posting upon the court house door and in other public places in such counties, an advertisement certifying the poor that are to be provided for, and asking for sealed proposals for their maintenance during said year, which sealed proposals shall be opened and acted on by said overseers on said day; but- nothing herein contained shall prohibit any overseers of the poor from receiving and accepting proposi OC. 163.] POOR. 747 tions, at any time, for the keeping of such poor persons as nmay in the interim become a county charge, or- of rejecting the propositions of such persons as they know to be unable to fulfill their obligations to said poor. Sxhc. 8. The board of county commissioners may, in their Conissione " ~~~~~~' ~may mlake allowdiscretion, allow and pay to poor persons who may become ance to poor. chargeable as paupers, and who are of mature years and sound mind, and who, from their general character, will probably be benefitted thereby, and also the parents of idiots, and of children otherwise helpless requiring the attention of their parents, and who are unable to provide for said children themselves, such annual allowance as will not exceed the charge of their maintenance in the ordinary mode, the. said board taking the usual amount of charges in like cases as the rule for making such allowance. SEC. 9. It shall be the duty of said overseers of the poor, Shall hear complaints. on any complaint made to them in behalf of the poor, to examine into the ground of such complaint; and if, in their judgment, the poor have not been sufficiently provided with the common necessaries of life, or have in any respect been ill treated by the person or persons under whose charge they shall have been placed, to withhold any part of the compensation allowed to such persons keeping them, as such overseers may deem reasonable and proper, and remove said poor and place them in the care of some other person. SEC. 10. The overseers of the poor shall enter in the Entries poor books. poor book of their respective townships or cities, all poor persons in their township or city who are unable to take care of themselves, and who shall, in their judgment, be entitled to the benefit of the provisions of this act, together with the date of such entry. SEc. 11. If any poor person shall suppose that he or she is Appeal rorn overseers to cornentitled to the benefit of the laws for the relief of the poor, missioners. and the overseers of the poor of the township or city in which he or she resides shall refuse to give such person the benefit thereof upon application of such person, the board of county commissioners may, if they shall think proper, direct the said overseers to receive him or her on the poor list, on his or her application therefor. SEC. 12. If any one within the description of poor persons Cases of unc'rtainty of resispecified in this act, shall be found in any county or township, deace. and the overseers of the poor of such township or city shall 748 PooR. [Ci. 163. be unable to ascertain and establish the last place of legal settlement of such person, they shall proceed, in their discretion, to provide for such poor person in the same manner as other persons are hereby directed to be provided for. Of temporary SEC. 13. Whenever any person entitled to temporary relief relief as a pauper, shall be in any township or city in which he or she has not a legal settlement, the overseers of the poor thereof, may, if the same is deemed advisable, grant such relief, by placing him or her temporarily in the poor house of such county, if there be any, to be employed therein so far as he or she is capable of any employment. When warrant SEc. 14. Upon complaint, of any overseer of the poor, any for removal may be issued. justice of the peace may'issue his warrant, directed to and to be executed by any constable, or by any other person therein designated, to cause any poor person found in the township or city of such overseer likely to become a public charge, and having no legal settlement therein, to be sent and charged at the expense of the county, to the place where such person belongs, if the same can be conveniently done; but, if he or she can not be so removed, such person shall be relieved by said overseers whenever such relief is needed. Appealfrom de- SEC. 15. If the overseers of the poor of any township or cision of justice of the peace to city, in any county in this State, to which any pauper shall probate court. have been removed as above provided, shall feel themselves aggrieved by such order of removal, they may, at any time within twenty days after such removal shall be known to them, appeal from the decision of the justice ordering such removal, to the probate court of the county from whence the removal was ordered to be made; such appeal to be taken, tried and, determined, and costs adjudged, as in other cases of appeal from the judgment of a justice of the peace, and the order of removal may be vacated or affirmed according to the law and right of the case. When such ap- SEC. 16. Such appeal shall be heard at the term of the court peal shall be heard. next after the same is filed therein, if, in the opinion of the court, reasonable notice of the appeal has been given to the opposite party; but, if not thus given, the cause shall stand continued until tile next term of the court, and notice of the appeal be then given if not before done. Order may be SEC. 17. If the order of removal is defective, the court amended. mshall permit the same to be amended without costs, and after such amendment is made the appeal shall be heard and determined as if such order had not been defective. CH. 163.J POOR. 749 SEC. 18. If any person be removed by virtue of the pro- Duty of overseer visions of ihis act, from any county, township or place, tosonis removed. any other place within this State, by warrant or order under the hand and seal of any justice of the peace, as hereinbefore provided, the overseers of the poor of the township or place to which said person shall be removed, are required to receive such person if he have a legal settlement in their county. SEc. 19. The overseers of the poor shall make a return to Returns of sums required for the county clerk of the sums of money required for the poor poor. of their respective townships, within fifteen days after every such contract hereinbefore provided for shall have been made, which sums shall be paid quarterly out of the county treasury, upon the order of the board of county commissioners, in the same manner as other claims of the county are paid. SEc. 20. The overseers of the poor, in each township and ompensationuof city in the State, shall be entitled to receive each one dollar per day for each and every day during which they shall be necessarily employed in the discharge of their several duties, to be allowed by the board of county commissioners, on being satisfied of such service having been performed. SEC. 21. If any overseer shall remove out of his properDutiesin case of removal or death township or city, he shall, previous to his removal, deliverofoverseer. over to the board of county commissioners, from which he shall be so removing, all books, papers and other things concerning his office; and upon the death of any overseer, his executors or administrators shall, within forty days after his decease, deliver over all things belonging'to his office to the board of county commissioners. SEC. 22. The overseers of the poor of the several town- Of accounts an settlements. ships and cities shall annually, at the July session of the board of county commissioners of their respective counties, present their accounts and make report to said board generally of their proceedings for the past year; and when said board shall audit or allow any claim or account presented by such overseers of the poor, they shall draw on the county treasurer therefor, whose dulty it shall be to pay the same out of any money in the county treasury not otherwise appropriated. SEC. 23. The board of county commissioners of the several Sam. counties are hereby directed to settle with the overseers of the poor in the several townships of their respective counties, at least once in every year, and oftener if they-shall deem the same necessary. 48 750 POOR. [CH. 163. Duty of overseer SEC. 24. It shall be the duty of the overseers of the poor, that any person on complaint made to them that any person not an inhabitant of their township or city is lying sick therein, or in distress without friends or money, so that he or she is likely to suffer, to examine into the case of such person and grant such temporary relief as the nature of the same may require; and, if any person shall die within any township or city who shall not leave money or other means necessary to defray his or her f poor person funeral expenses, it shall be the duty of the overseer of the die without means to pay poor of such township or city to employ some person to proburi~al expenses. vidle for and superintend the burial of such deceased person, and the necessary and reasonable expenses thereof shall be paid by and upon the order of such overseer; and the board of county commissioners of the proper county, at any meeting of such board, shall examine all claims arising under the provisions of this section, and if found reasonable, shall direct the same to be audited and paid out of the county treasury. County commis- SEC. 25. It shall be lawful for the board of county commissioners may purchase land and sioners in the several counties in this State, whenever they erect asylum. may deem it advisable, to purchase a tract of land in the name of their respective counties, and thereon to build, establish, Superintendent and organize an asylum for the poor, and to employ some huof asylum. n mane and responsible person or persons, resident in their respective counties, to take charge of the same upon such terms and under such restrictions as the board shall consider most advantageous for the interests of the county, who shall be called " superintendent of the county asylum,' and when Of asylums two or more counties shall have jointly purchased any tract of land and erected an asylum for the poor of their several counties, they shall have the power to continue such joint ownership during their pleasure; and it shall be lawful for the county commissioners of two or more counties to jointly purchase lands, erect asylums, or do other things proper and necessary for the relief and comfort of the poor within the counties forming such joint ownership as is by this- act provided for their respective counties. iuteof SPer. SEC. 26. It shall be the duty of such superintendent or superintendents to receive into his or their care and custody all persons who may become a county charge, as paupers, and to take such measures for the employment and support of such paupers, and to perform such other duties as the board of county commissioners shall, from time to time, establish, order and direct, consistent with the laws of this State. C. 163.] P1oo. 751 Sec. 27. It shall be the duty of the county commissioners Physician. to appoint annually a. well-qualified physician to attend the county asylum, and allow him a reasonable compensation for his services. SEC. 28. It shall be the duty of the overseers of the poor Of [See ch.8, sec. 6: Overseer and suthe different tonwnships and cities, and also of the superin- perintendent may bind out tendents of the county asylums, to bind out such poor children poor childrenl. as fill under their care and charge, from time to time; and it shall also be the duty of said,overseers to see that children so bound be properly treated by the persons to whom they are bound, and to take legal means of redress- in case of maltreatment. SEc. -29. To raise the sum necessary for the purchase of County cornis sioners may levy land, and the erection and furnishing of the buildings for taxtopurchase land and erect such asylums, the board of county commissioners in thebuildings. several counties shall have power to assess a tax on property liable to taxation, for raising a county revenue, not exceeding five hundred dollars, unless the amount of taxes to be assessed shall be submitted to a vote of the people, at some general election, and a majority of all the votes cast at a poll opened for that purpose shall be in favor of such assessment. SEc. 30. So soon as the necessary provisions may be made Of removal of by the erection of suitable- buildings, the said board shall asym direct and order that all persons who have become permanent charges as paupers in the county be removed to such asylum, and shall take such measures for the employment and support of such paupers as they may deem advisable, and thereafter the overseers of the poor shall, from time to time, as persons may become permanent charges to their respective townships as paupers, have such persons removed to the said asylum. SEC. 31. Such superintendent or superintendents shall giveBondofsuperbond, with freehold security, to said board, in the penalty of nondnt. five hundred dollars, conditioned for the faithful discharge of his; or their duty; and he or they shall make to such board, at their session in April and October, annually, a detailed report, in writing, of the time and manner of the admission of each pauper, their health and fitness to labor, the results of their industry, and the expenses incurred; and it shall be the duty of the members of such board, in person, to annually inspect said asylum, with regard to its fitness, in all respects, for the objects of its establishment. SEc. 32. Whenever it shall be necessary and practicable, 7.2 POOR., ECr. H&. ayrbeeduate, poor children of the asyl ms, who can not be bound out, or whom it may not be expedient to bind out as apprentices,. shall be educated thereat. Same, SEC. 33. It shall be the duty of the superintendent or superintendents of any asylum erected or established by law, t(o superintend and direct the education of such poor children, according to the preceding provisions of this act; and for the purpose of carrying the same into effect with the least possible expense, it shall be the duty of said superintendent -to send them to the common school in the township in which the asylum is situated, during the continuance of its session. Property may SEc. 34. Any asylum or farm, provided by the board of be sold. county commissioners for the purpose, may be cdiscontinued by such board, and the property, real and personals relating thereto, which belongs to the county, may be sold, leased, or otherwise disposed of, or applied in such manner as may be best for the interests of the county. Tax for the sup- SEC. 35. The board of county commissioners in the several port of the poor, how mday be counties of this State may, if they deem it expedient, annulevied. ally, at their session at which the county tax is ordered to be levied and assessed, levy and assess a tax for the support of the poor of their respective counties, on objects from which the county revenue is or.may be directed to be raised. The tax hereby authorized to be laid, shall be collected by the same officers whose duty it may be to collect the State and county revenue, who shall pay the same into the county treasury. Appeals. SEC. 36. All decisions of any justice of the peace, in any matter, proceeding, or suit authorized by this law, may be appealed from in like manner, and under like regulations and restrictions of law, as in other cases. Board of visitors SEC. 37. The board of county commissioners of any county may be appointed may, in their discretion, appoint a board of visitors annually, to consist of one person from each township in the county, or, a less number of persons, as they may think best, to visit at least once during the year the asylum of such county, and to report to, the commissioners its condition, and the treatment, management, and condition of the inmates thereof. Their compensa- SEC. 38. Such -visitors shall receive such compensation as tion.,the board shall adjudge reasonable. Pauper shall not SEC. 39. It shall be unlawful for any person, either directly be sent out ofc his county. or indirectly, to send, or be instrumental in sending, or causing 1H. 164.] PRINTING. 753 to be sent, out of the county where such person properly belongs, any pauper, or person who is, or is likely to become, an object of public charity, into any other county of this State, except in the manner provided for in this act. SEc. 4:0. Any person who shall violate the provisions of Penalty for' section thirty-nine of this act, shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not exceeding one hundred dollars or imprisonment in the county jail not exceeding one year, or both such fine and imprisonment. SEC. 41. All acts and parts of acts inconsistent with this act are hereby repealed. SEC. 42. This act shall take effect and be in force firom and after its publication in the statute book. Approved March 5, 1862. CHAPTER CLXIV. (Acts of 1860, Chapter LXI.) AN ACT to provide for the State Printing. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the secretary of State, auditor, and treas- [Repealed, ch, L1s.] urer shall, immediately on the publication of this act, give notice, by three consecutive publications in the " Daily State Record," a newspaper printed in the city of Topeka, that,sealed proposals, indorsed "Proposals for State Printing," will be received at the office of the secretary of State until the ~sevenith day after the first publication of said notice, for the executing of the printing of all bills for the legislature, together with such resolutions and other matters as may be ordered by the two Houses, or either of them, to be printed in bill-form, until the fourth Tuesday in December, 1861; that the secretary of State, auditor, and treasurer shall, immediately upon the publication of this act, give notice, in one newspaper printed in the city of Topeka. that sealed proposals, to be indorsed "Proposals for State Printing," will be receivel at the office of the secretary of State until the twentieth day after the first publication of said notice, for the executing of the several branches of the State printing, in separate contracts,,as specified, excepting that portion of said printing hereinbefore provided for, until the fourth Tuesday in December, 754 PRINTING. [Cn. 104. Sanle 1861; that the secretary of State, auditor, and treasurer shall, during the first week in November, 1861, and yearly thereafter, give notice, in four different newspapers published in different sections of the State, that sealed proposals, indorsed "Proposals for State Printing," will be received at the office of the secretary of State until the thirtieth day after the first publication of said notice, for the executing- of the several branches of the State printing; in separate contracts, as hereinafter specifiedl, for the terrm of one year fromn the fourth Tuesday in December next thereafter. For.ns of pro. SEC. 2. The proposals hereinbefore provided for, shall disPoSals. tinetly and specifically state the price per thousand ems for the composition of all bills, resolutions, and other matter that may be ordered to be printed in bill-form:; all pamphlets or reports ordered to be printed in pamphlet-form; the journals of the Senate and House of Lepresentatives; the general laws; the local laws; and ifor legislative documents; the price per token for press-work of all bills, resolutions, or other matter ordered to be printed in bill-form; all pamphlets, reports, or communications to be printed in pamphletform; the journals of the Senate and House of Representatives; the,general and local laws; and the volumes of legislative documents; the price per thousand ems for the composition, and the price per qlire for press-work, of all blanks and circulars for the executive officers; and the price, per quire of the paper, to be furnished by the bidder, for each of the kinds of work provided for, at which the bidder is willing to take the contract bid for; and in such notice as is Board to pub- prescribed in this act, the secretary, auditor, and treasurer lish abstract of this law. shall publish an abstract of this law, stating distinctly each item to be bid for, the character of the work, and the mode of allowing compensation for the same, and the said secretary, auditor, and treasurer, or any two of them, shall, within Proposals open-two days after the expiration of such notice, proceed to open all such proposals by them received, and they shall, on careful examination and strict computation, give the contract, for each of the hereinafter namled branches of State printing, toe To,som award. the lowest responsible bidder therefor, who will comply with all the provisions of this act: Provided, that if two or more bidders shall propose for the same contract, and the proposals. of one be lower on composition, and the proposals of another be lower on press-work or paper, then the secretary, auditor, Ci. 164.] PRINTING. 755 and treasurer, taking to their assistance a disinterested practical printer, shall proceed to compute the same by taking as a basis the aggregate number of ems, the aggregate number of tokens of press-work, and the aggregate number of quires of paper, of the same kind of printing for the last session of the legislature preceding, and they shall give the contract to the lowest bidder under the computation aforesaid: and, Provided further, that nothing herein contained shall be construed so as to prevent the same person from becoming contractor for two Same'personmay contract for two or more branches of the public printing, if he shall be the or more branches. lowest bidder therefor; but the said secretary, auditor, and treasurer shall, in no- case whatever, receive or take into consideration the bid of an irresponsible) person: Provided, however, no person shall be deemed irresponsible who shall tender to the executive officers afbresaid, along with his bid, satisfactory assurance, subscribed by his proposed security, that he will execute the bonds required by the eleventh section of this act. SEC. 3. That the printing of all bills for the two Houses of Printing divided into branches, the Legislature, together with such resolutions and other tobebidforsei)matters as may be ordered by the two Houses, or either ofrtel them, to be printed in bill-form, shall be let in one contract; the printing of the journals of the Senate and House of Representatives, and of such reports, communications, and other documents as enter into and make a part of the journals, shall be let in another contract; the printing of all reports, communications, and other documents that may be ordered to be printed in pamphlet-form by the legislature, or either branch thereof, except such as enter into and mlake a part of the journals, together with the volume of public documents, shall be let in another separate contract; the printing of the general and local laws, and such joint resolutions as may be directed by the legislature to be printed therewith, shall be let in another separate contract; and the printing of all blanks and circulars necessary for the use of the executive officers of the State, shall be let in another separate contract. SEc.. 4. The bills shall be printed in folio foolscap-form, on Bnus, Iow rinn ted. small pica type, each page to contain not less than twenty-five lines of solid matter of the usual length, and the lines shall be successively numbered, with a blank only in each space between the lines; and, in counting the composition upon bills, the same shall be measured as solid matter, and every necessary fraction of a page shall be counted as a full page; but no entire blank page shall be counted or charged for, 756 PRINTING. [CH. 164. Journals how SEC. 5. The journals of the Senate and House of Representatives shall be printed in super royal octavo form, on neat long primer type, and in as close and compact order as is consistent with good workmanship, without unnecessary blanks or broken pages; the pages to be of the same size as those of the journals of the Legislature of 1860. Public docu. SEC. 6. The volumes of public documents and all reports, merts, how printed. communications and other documents ordered to be printed in pamphlet form, shall be printed on the same kind of type and the pages be of the same size as specified for the journals in the preceding section; said documents to be printed in pamphlet form, shall be printed in closely compact order, without title pages, unnecessary blanks or open spaces; the volumes of public documents shall contain nothing that shall have been inserted in the laws or journals of the same year, except the annual report of the Auditor and Treasurer, and the various reports, communications and other documents proper to be inserted therein, shall follow each other in as close, compact order as is consistent with good workmanship, without the intervention of unnecessary blanks or separate title or half title pages; and the paging thereof shall be consecutive, and at the conclusion there shall be an index, to be made out by the printer, referring to the particular page at which each separate document commences. In all cases where any document is printed in pamphlet form by order of the Legislature, or either branch thereof; by the contractor for the printing of the volumes of public documents, which shall also be inserted in the volume of public documents, and in all cases where any such document is printed in pamphlet form by the contractor for the printing of the-journals, which shall, also, be printed in the journals, but one charge shall be made or allowed for the composition thereof. Laws, how SEC. 7. The laws shall be printed in royal octavo form, on printed. good small pica type, the pages to be of the same size and form as those in the laws of the session of the Territorial Legislature of 1860, with similar marginal notes, and index to the general laws. Pages, how SEC. 8. That, in composition [of] all pamphlets, laws, jour. counted. nals and volumes of public documents, every necessary fraction of a page shall be counted as a full page, but no entire blank Tblrho ttate page shall be counted or charged for; and, if in any branch of mprintednd the printing, tabular statements occur, which it shall be impracticable to plrint on the ordinary sized pages, the same CHI. 164.] PRINTING. 757 shall be printed on tabular sheets of the necessary size, and the amount of composition on the same shall be ascertained by measuring the printed surface and thereby ascertaining the number of ems; and for all rule and figure work, double priceRule and figure for composition shall be allowed, the same to be ascertained by strict measurement and count. But one charge shall be made No double charge for comfor the composition of all documents ordered to be printed by position. both branches of the Legislature, and no charge or allowance shall be made for composition when extra and additional copies are ordered to be printed. SEC. 9. In charging and counting the press work, whether whatis a token. on bills, journals, laws, pamphlets or volumes of public documents, the token shall consist of one hundred and twenty-five sheets, printed on both sides, or two hundred and fifty sheets printed on one side only. SEc. 10. Each contractor for any branch of the State printing, Printer deliver sheets to secreshall deliver over to the Secretary of State, or on his order, in tary. the sheet, all copies ordered to be printed, in good order. SEC. 11. It shall be the duty of the Secretary of State to Successful bicder to give bond give immediate notice to the successful bidder, that his propo-';he'nanhfor sals have been accepted; and each successful bidder, (except the successful bidder for the printing for which proposals are to be called for immediately upon the publication of this act, who shall give such bond within two days after receiving such notice,) shall, within ten days after receiving such notice, enter into bonds, payable to the State of Kansas, in the sum of' not less than two thousand dollars nor more than five thousand dollars, for each and every branch of the public printing so awarded to him, with at least two sufficient and approved sureties, conditioned for the faithful performance, pursuant to this act, of that branch or branches of' the printing to which he has been adjudged the successful bidder; and, if he shall fail so to give bond within the time allowed, then the contract shall be given to the next lowest bidder who will give bond as aforesaid. SEc. 12. The folding of all bills, resolutions, pamphlets or lnd stidll documents, ordered to be printed, together with the stitching let in two osnof the same, and the paper covering of all documents ordered to be covered by the Legislature, or either branch thereof, shall be let in one contract; and the folding, stitching and binding of the laws, journals and volumes of public documents, shall be let in another contract. 758 PRINTING. [CH. 164. Proposals for SEC, 13. The Secretary, Auditor and Treasurer, at the same same, how made.a s timeand in the same manner as is prescribed in the first section of this act, shall give notice that sealed proposals will be received for the folding and stitching of all bills, resolutions, pamphlets or documents ordered to be printed, and the paper covering of all documents ordered to be covered, and for the folding, stitching and binding of the laws, journals and volumes of public documents, which proposals shall specify the rate per hundred sheets for folding, the rate per hundred copies for stitching all bills, resolutions, pamphlets or documents, the rate per hundred copies fobr paper covering all documents ordered to be covered, and the rate per hundred copies for binding the laws, journals and volumes of public documents, at which the contractor is willing to do the same; and each successfull bidder, to whom the contracts, or either of them, - may be awarded, shall enter into bond in the sum of one thousand dollars, in the same manner as is prescribed in the eleventh section of this act, for the faithful performance of the Style of binding SEC. 14. The binding of the laws, journals and the volumes same as in 1860. * [Repealed.] of public documents, shall be in the same style and of the same materials as of the volumes of laws of the Territorial Legislature of 1860. Secrletary to SEc. 15. The Secretary of State shall keep in his office, for keel) specimens in his office. inspection, a specimen of each kind, style and quality of the work required to be done and material to be used in the several cases; and the work done or material used, shall, in all cases, be equal in quality to the specimens so kept by the Secretary of State. To half sleets SEC. 16. That, in counting the folding and stitching of all counted in foldin, &c. bills, resolutions, pamphlets or documents, no half sheet shall be counted, charged for or allowance made. Foldinlg, &c., to SEC. 17. Folding, stitching and binding shall include the include collatimg, dryillg and eollating, drying and pressing, and no chalge or allowance shall pressing. be made for collating, drying and pressing. Contractors for SEC. 18. That each contractor for any branch of the public printing to prePent accounts, printing shall file and preserve one copy of each document, or how. other matter by him printed for the State. which file he shall deposit, together with his accounts for printing, with the Secretary of State, on or before the fourth Tuesday of December, annually, in which account shall be specifically stated the various jobs performed, the number of ems composition in each, Cm 164.] PRINTING. 759 the extra charge, if any, for rule and figure work in each, the number of tokens of press work in each, designating whether ordered by the Senate, the House, or jointly by both, or by other officers or agents of the State, together with the kind and quantity of paper used for each job. SEc. 19. Each contractor for the folding, stitching, covering Binder to pre- sent accounts, and binding, shall file and preserve one copy of every document, how. or other matter by him folded, stitched or bound, which file he shall deposit, together with his accounts for the same, with the Secretary of State, on or before the fourth Tuesday in December, annually, which account shall specifically state each item, as provided for in the thirteenth section of this act, and the number of copies of each bill, resolution, pamphlet or document, folded, stitched or covered, and the number of copies of laws, journals and documents bound. SEC. 20. That, on the filing of any account and vouchers, Board toaudit accounts. under the two last preceding sections, the- Secretary of State, Auditor and Treasurer shall carefully examine such accounts, together with the vouchers therefor and the orders for the same; and, if any errors be found in such account, by said examining officers, they shall immediately correct the same; and, if they shall find any unnecessary blanks, or increased number of pages caused by stretching out of matter or other device of the printer, they shall deduct from the account of the contractor double the amount of composition and press work charged for such unnecessary blank or increased number of pages; and, if any error shall be committed in executing any branch of the printing aforesaid, by which the sense or meaning may be altered, such examining officers shall deduct from the account of the contractor by whom the error was committed, the amount of compensation to which he would have been entitled for the composition and press work of the whole sheet in which such error shall be found; but the said Secretary,. Auditor and Treasurer shall in no case allow constructive. charges or any other than is specifically named in this act. SE. 2'1. That, after any account, as aforesaid, shall have Aftor examination, to be cerbeen examined by the proper officers, and all errors and over tifie to auditor charges corrected, and proper deductions made therefor, pur- drawn. suant to the foregoing section, said account shall be certified to be correct by said examining officers, or any two of them; and, wlen any account shall be so audited and certified, the Auditor shall draw a bill upon the treasury for the amount thereof, payable out of any moneys appropriated for that purpose. 760 PRINTING. [CH. 164. Orders for print- SEC. 22. The contractor for the printing of bills, resolutions ing, when executed. or other matter to be printed in bill form, shall promptly and without delay execute all orders of the Legislature, or either branch thereof, for the printing of all bills and resolutions; and for each failure to complete said printing, within twentyfour hours after receiving order for the same, the contractor shall forfeit and pay a penalty of ten dollars, to be deducted from his account at settlement; and all contractors, under the provisions of this act, shall promptly and without unnecessary delay, execute all orders to them issued by the Legislature, or either branch thereof, or the executive officers of the State; and the laws, journals and volumes of public documents shall be printed and delivered to the contractor for the folding, stitching and binding, on the order of the Secretary of State,, within twenty days after the adjournment of the Legislature; and said contractor shall, within twenty days after the receipt thereof; execute the folding, stitching and binding, and deliver to said Secretary of State the volumes so bound, under the penalty of a forfeiture of their bonds; Provided, however, Time may be That the said Secretary of State, Auditor and Treasurer may, extended. on good cause shown by either of the contractors, extend the time, not exceeding ten days, for the executing of their several contracts. It is further provided that the said executive officers may, for good cause shown, grant an additional extension of time, not exceeding ten days, to either of the contractors, for the printing, folding, stitching or binding of the laws or journals of the present session of the Legislature. Secretary and SEC. 23. That the Secretary of State shall furnish a true and clerks to furnish copy without do-accurate copy of the laws, as they may be demanded by the lay. printer thereof, and the clerks of the respective branches of the Legislature shall each furnish to the printer, who is bound by his contract to print the same, copies of the journals, bills, reports and other papers and documents, without unnecessary delay; and no contractor shall be accountable for any delay occasioned by the want of such copy. Secretary to SEC. 24. It shall be the duty of the Secretary of State to classify and arrange laws, res- classify and arrange, for publication, the laws, joint resolutions olutions,-&c. and memorials passed at each session, and to make out a full index and marginal notes to the laws, as fast as shall be necessary. The signatures of the Speaker of the House, President of the Senate and the Governor, shall not be printed at the end of each law and chapter, but only at the end of the volume. The date of approval by the Governor shall be affixed to each Ci. 165.] PRINTING. 761 law; and there shall be prefixed to each volume of laws pub- What to be prilished, the name and residence of the several State officers, the ume of laws Senators and members of the House of Representatives, and the presiding officers and clerks of both branches of the Legislature at the time of the passing of such laws. SEC. 25. In case any contractor, under the provisions of this If contractor act, shall fail to comply with the stipulations of his contract, it shall be the duty of the Secretary of State, Auditor and Treasurer, to immediately advertise for proposals for the unperformed work provided for in the said contract, in accordance with the provisions of this act, so far as they may be applicable. SEc. 26. This- act to take effect and be in force from and Take effect, when. after its publication, and immediately upon its approval by the Governor, the Secretary of State shall publish an authenticated copy of the same in some daily paper at the capital of this State, which shall constitute such publication. I hereby certify, that the above bill became a law, without the signature of the Governor, by publication in the " Topeka State Record," May 15, 1861. J. W. ROBINSON, Secretary of State. CHAPTER CLXV. (Session, 1862.) AN ACT supplementary to and amendatory of an act entitled " An act to provide for the State Printing," passed May, 1861. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the Secretary of State, Auditor, and Treas- Contracts for State printing, urer, or any two of them, shall, during the last week in Sep- how and by whom to be let, tember cf each year, give notice in four different newspapers printed in different sections of the State, for four consecutive weeks, that sealed proposals indorsed: "Proposals for State Printing," will be received at the office of the Secretary of State, until the first Monday in November thereafter, for the executing of the several branches of the State Printing, in separate contracts, as specified in the said' Act to provide for the State Printing," passed May, 1861, for the term of one year from the fourth Monday in December next following such letting. 762 PRISON BOUNDS. [CH. 166. The journals. SEC. 2. The journals of the Legislature shall be printed in close and compact form, single-leaded, and without unnecessary paragraphs or blank lines. The volumlesof SEC. 3. The binding of the laws shall be in the same style the laws, how to be bound. as the volume of the laws passed by the State Legislature of 1861, that of the journals shall be in half binding: and that of the public documents shall be in paper covers. If bids are found SEC. 4. The Secretary of State, Auditor, and Treasurer, may to be exorbitant, &c., notice shall at the time of opening the bids for public printing, call to their be given again. assistance a disinterested practical printer, who shall first be placed under oath: and if the bids for any part of the printing or binding are found to be exhorbitant, or the result of combination to defraud the State, or for any other sufficient cause, they shall again give immediate notice, as provided in the first section' of this act, for four consecutive weeks, that proposals will be received until the second Monday in December thereafter for the executing of such branches of the State Printing as were not awarded at the previous letting, which shall be specified in such a[n] advertisement, at which time the contract shall be awarded, as provided for in section (2) two of the said'" Act to provide for the State Printing." [Seech. 164 —1, SEC. 5. That section (1) one and fourteen (14) of an act entitled "; An act to provide for the State Printing," passed May, 1861, be and the same are hereby repealed. SEC. 6. This act shall take effect and be in -force from and after its publication in the statutes. Approved March 5, 1862. CHAPTER CLXVI. (Chapter XCVI, Laws of 1860.) -AN. ACT to Establish Prison Bounds. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Soeech.26f-495.] SECTION 1. The prison bounds of any county jail in this Terlimited ol-y by ritory- shall be co-extensive with and limited only by the boundTerritory. aries of the Territory of Kansas. Any person im- SEC. 2. Any person who is now or who may hereafter be prisoned under. prlovisions o imprisoned under the provisions of chapter three, entitled " Excertain act entitled to benefits ecutions against the Person;" of title fourteen, entitled "Executions;" of an act entitled " An act to establish a Code of CH. 167-168.] PRISONERS-PROPERTY, UNCLAIMED. 763 Civil Procedure,"' approved February 11, 1859, shall be entitled to the benefits of this act. SEC. 3. Every person who is now or who may hereafter be Person imprisonued shall give imprisoned as stated in the last section of this act shall, priorbond, conditionto taking the benefit of this act, give bonds in double theeinmain within amount, payable to the plaintiff in execution, of the sum stated in the execution to be approved by the sheriff, conditioned that he will remain within prison bounds until discharged from such execution according to law; and, in default thereof, shall be committed to the county jail. SEC. 4. This act to take effect and be in force from and after its passage. Approved January 31, 1860. CHAPTER CLXVII. (Chapter XCVII, Acts 1860.) AN ACT relating to the Commitment of Prisoners. Be it enacted by the Governor and Legislative Assembly of the Territory of ]Kansas: SECTION 1. When any person is committed to jail by a jus- Justice may commzit person tice of the peace or judge or other magistrate, such justice or toolarst safe jail in any ci;nother magistrate may, if there be no jail in the county, commit ty. such person to the nearest safe jail in any county of this Territory. SEC. 2. All acts or parts of acts conflicting with the pro-Acts repeaed. visions of this act, are hereby repealed. SEC. 3. This act to take effect from and after its passage. Approved February 24, 1860. CHAPTER CLXVIII. (Chapter LVII. Acts of 1858.) AN ACT Relative to the Disposition of Unclaimed Property. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That whenever any personal property shall be Consignesh,, keep a book, and. consigned to, or deposited with any forwarding merchant, wharfenter a descrip-, tion of the propkeeper, warehouse keeper, tavern keeper, or the keeper of any erty, with date of reception, of depot for the reception and storage of trunks, baggage, mer- all personal pl, 764 PROPERTY, UNCLAIMED. [CH 168. perty consigned chandize or other personal property, such consignee or bailee to or deposited with him. shall immediately cause to be entered in a book kept by him, a description of such property, with the date of the reception thereof. ll notifwner by lette SEC. 2. That if such property shall not have been left with of the reception Such consignee or bailee, for the purpose of being forwarded, or of the property, when, disposed of according to directions received by such consignee or bailee, at or before the time of the reception thereof, and if the name and residence of the owner of such property be known to the person having such property in his possession, he shall immediately notify the owner, by letter directed to him and deposited in a post office, of the reception of such property.'When he may SEC. 3. That if any such property shall not be claimed and proceed to sell such property. taken away, within one year after the time it shall have been so received, the person having possession thereof, may, at any time thereafter, proceed to sell the same in the manner provided in this chapter. Manner and SEC. 4. That before any such property shall be sold, if the time of giving notice. name and residence of the owner thereof be known, at least sixty days notice of such sale shall be given him, either personally or by mail, or by leaving a note at his residence or place of doing business; but if the name and residence of the owner be not known, the person having the possession of such property shall cause a notice to be published containing a description of the property, for the space of six weeks successively, in a newspaper, if there be one, published in the same county; if there be no newspaper published in the same county, then said notice shall be published in a newspaper nearest thereto in an adjoining county; the last publication of such notice shall be at least eighteen days previous to the time of sale. ifthieoowner SEC. 5. That if the owner or person entitled to such propshall not take the same away erty, shall not take the same away, and pay the charges thereand pay charges after sixty days notice, duty of, after sixty days notice shall have been given, it shall be the consignee. duty of the person having possession thereof, his agent or attorney, to make and deliver to a justice of the peace of the same town an affidavit, setting forth a description of the property remaining unclaimed, the time of its reception, the publication of the notice, and whether the owner of such property be known or unknown. Duty of the jus. SEC. 6. That upon the delivery to him of such affidavit, the tice. justice shall cause such property to be opened and examined in 011. 168.] PROPERTY, UNCLAIMED. 765 his presence and a true inventory thereof to be made, and shall annex to such inventory an order under his hand that the prop Shall issue an order to the conerty therein described be sold by any constable of the city orstable to sell the ny cons property. town, where the same shall be, at public auction. SEC. 7. That it shall be the duty of the constable receiving Dlutysofoonstasuch inventory and order, to give ten days' notice of the sale, by ten days notice of sale. posting up written notices thereof in three or more public places in such city or town, and to sell such property at public auction to the highest bidder, in the same manner as provided by law for sales under executions from justices' courts. SEC. 8. That upon completing the sale, the constable making Shall make ro the same, shall indorse upon the order aforesaid a return of his proceedings thereon, and return the same to the justice, together with the inventory, and the proceeds of the sale after deducting his fees. SEC. 9. That from the proceeds of such sale, the justice shall Charges to bhe paid out of the pay all legal charges that have been incurred in relation to such proceeds. property, or a ratable portion of each charge if the proceeds of said sale shall not be sufficient to pay all charges; and the balance if any there be, he shall immediately pay over to the Balance of proceeds to be paid treasurer of the county in which the same shall be sold, and tocounty treasurer. deliver a statement therewith, containing a description of the property sold, the gross amount of such sale, and the amount of costs, charges and expenses paid to each person. SEC. 10. That the county treasurer shall make an entry of Duty of county treasurer. the amount received by him, and the time when received, and shall file in his office such statement so delivered to him by the justice. SEC. 11. That if the owner of the property sold, or his legal The owner may within five years representatives shall at any time within five years after such receive thoe amount deposib money shall have been deposited in the county treasury, fur- ted with the treasurer. nish satisfactory evidence to the treasurer of the ownership of such property, he or they shall be entitled to receive from such treasurer the amount so deposited with him. SEC. 12. That if the amount so deposited with any countyIf notclaimed i)l five years, how treasurer, shall not be claimed by the owner -thereof or his legal disposed of. representatives, within the said five years, the same shall.belong to the county, and may be disposed of as the county Board of Supervisors may direct. SEC. 13. That property of a perishable o property, manner ofS. decay by keeping, consigned or left in the manner before melln- notice and sale. tioned, if not taken away within thirty days after it shall be 49 766 QUO WARRANTO. [CH. 169. left, may be sold by giving ten days' notice thereof; the sale to be conducted, and the proceeds of the same to be applied in the manner before provided in this chapter; Provided, that any property in a state of decay, or that is manifestly liable immediately to become decayed, may be summarily sold by order of a justice of the peace, after inspection thereof, as provided in section six of this chapter. rees of justice SEC. 14. That the fees allowed to any justice of the peace and constable. under the provisions of this act, shall be one dollar for each day's services, and to any constable the same fees as are allowed by law for sales upon an execution, and ten cents per folio for making an inventory of property. Approved February 12, 1858. CHAPTER CLXIX. (Chap. CIV. Acts of 1859.) AN ACT concerning Writs of Quo Warranto. Be it enacted by the Governor and Legislative Assembly of t]e Territory of Kansas. SEcTION 1. In case any person shall usurp, intrude into or unlawfully hold or execute any office or franchise, the Territorial or county attorney of the proper county, with the leave of any district court, shall exhibit to such court an information in the nature of a quo warranto, at the relation of any person desiring to prosecute the same. How acted upon. SEC. 2. The relator shall be named as such in the information against such person as usurping, intruding into, or unlawfully holding or executing any such office or franchise, and shall proceed thereon in such manner as is usual in cases of information in the nature of a quo warranto. Trial. SEC. 3. If it shall appear to such court that the several rights of divers persons to the same office or franchise may properly be determined on one information, the said courts may give leave to exhibit one information against several persons to try their respective rights to such office or franchise. Pleadings. SEC. 4. Such person, against whom an information in the nature of a quo warranto shall be prosecuted, shall appear and plead at the same term in which the said information shall be filed, unless the court shall give further time; and such person, CH. 170.] RAILROADS. 767 prosecuting such information, shall proceed thereupon with the most convenient speed. SEC. 5. In case any person, against whom any such informa- Penalty. tion, in the nature of a quo warranto, shall be prosecuted, shall be adjudged guilty of any usurpation or intrusion into or unlawfully holding and executing any office or franchise, it may be lawful for the court as well to give judgment of ouster against such person from any of the said offices or franchises, as to fine such person for his usurpation, intruding into or unlawfully holding and executing any such office or franchise, and to give judgment that the relator, in such information named, shall recover his costs of such prosecution; and, if judgment shall becosts. given for the defendant in such information, he shall recover his costs against such relator. SEc. 6. The court in which any information shall be ex-Timeofpleading hibited shall allow to the relator and the defendant such convenient time to plead, reply, rejoin or demur, as shall seem just and reasonable. SEC. 7. This act to take effect and be in force from and after the first day of June next. Approved February 10, 1859. CHAPTER CLXX. (Session 1862.) AN ACT relating to Railroad Companies. Be it enacted by the Legislature of the State of Kansas: SEcTIos 1. Any railroad company now organized, or which Railroad compashall hereafter organize under the laws of Kansas, may, at or conslidate any meeting regularly called of all the stockholders thereof, by vote of persons holding a majority of the stock of such company, unite or consolidate it with any other company or companies now organized or which may be hereafter organized under the laws of the United States or of any State or Territory, by the consent of the company with which it may so consolidate and unite, and such company or companies with which it shall so unite or consolidate may hold, use and enjoy all the rights and privileges conferred by the laws of Kansas on the company or companies so uniting or consolidating with it, and shall be liable for all the debts and own all the property and franchises of such company or companies; Provided, That any companies thus united for the purpose of the 768 RAILROADS. [CH. 170o Equal terms. construction of a railroad and branches thereof from the western boundary of the State of Missouri to the Pacific ocean, shall, upon equal terms, have the right to run through cars upon said Pacific railroad as far and as fast as the same is completed, from the points on the Missouri river from which said roads or branches shall start, or where such roads or branches shall cross said river; and that such roads or branches shall have the right to connect with said Pacific railroad at such points as may be determined by the respective roads or Whnere to con- branches; and that such roads or branches shall share equally in the proceeds of any public lands which may be hereafter ceded or granted by any treaty with any Indian tribe, or by any act of Congress to aid in the construction of any or all Not to apply to such roads; but this amendment shall not apply to the lands Potawatomie lands. already by treaty ceded by the Potawatomie Indians, by a treaty now pending in the United States Senate. Such proceeds to be applied in proportion to the length of the line of each road from the respective points on the Missouri river where such roads shall start or cross the same, to the points of connection; and that such branches shall have the right to transport passengers and freight upon through cars or otherwise upon equal terms, and to enjoy equal facilities in respect to contracts for freight or passage on such Pacific railroad in every respect. lhroalld cornha SEC. 2, Any railroad company, now organized or which the right to oo - may hereafter organize under the laws of the State or Terristruct and optelegraphle tory of Kansas, shall have the right to construct and operate along its proposed route, a line of telegraph, as soon as the work of construction of such road shall have been commenced, with all the rights, privileges and franchises given to any telegraph company under any law of the State or the Territory of Kansas. M ray change its SEC. 3. Any such railroad company, by vote of persons corporate name, or nunmber ofi Lowning a majority of its stock, at any meeting regularly pleasure. called of all the stockholders of such company, may change its corporate name or the number of its directors at pleasure; and may, in like manner, make valid and effectual any acts done in good faith, and may cause to be done any acts omitted affecting the organization or affairs of such company or the continuance of its charter, though such acts may have been done or omitted contrary to the regulations of such company or the requirements of law; Provided, the time given by law CE. 17i.] REAL ESTATE, REDEMPTION GO 769 to such railroad company within which to commence the con-.struction of its road shall not be hereby extended. SEC. 4. Any railroad company now organized under the May increase their capital. laws of the State or Territory of Kansas, may extend their road and construct the same still further in the same general direction, under the same restrictions now embodied in their charters, and may increase their capital at the rate of $15,000 per mile for every mile so constructed. SEC. 5. Any railroad company now organized unider thesubscriptions may be received laws of the State or Territory of Kansas, may receive sub-inands. scriptions to the capital stock of their road in lands, lotshouses or any personal property at such valuation as may be agreed upon with the party or parties; and the company may sell, mortgage or pledge such real or personal property to raise money or materials for constrncting, equipping or operating said road. SEC. 6. For the purpose of enabling any company to con-,ay mortgage their road, rolstruct, equip and operate their road, they are hereby author- ling stock, &c. ized to pledge or mortgage said road, rolling stock, machinery, depots and any other property they possess, together with the franchise of said road, for the liquidation of any indebtedness said railroad company may incur in the construction of said road. SEc, 7. All deeds for the conveyance of real estate of said company, shall be signed by the president of said company and attested by the secretary with the corporate seal attached, which shall be deemed and held a sufficient execution, authentication and acknowledgments of such deeds in all courts. SEC. 8. This act shall take effect and be in force from and after its publication; and the Secretary of State is directed to cause it to be published immediately after its passage. Approved March 5, 1862, CHAPTER CLXXI. (Chapter LXV, Acts 1861.) AN ACT to provide for the Redemption of Real Estate sold under Execution, Order of Sale, or other final Process. Be it enacted by the Legislature of the State of Kansas: SECTION 1. In all cases where real estate shall be sold under Ral estate sold execution, order of sale, or other final process, the property under execution 770 REAL ESTATE, REDEMPTION OF [OH. 171. subject to re- sold shall be subject to redemption, as hereinafter provided. demption, as The officer must give to the purchaser a certificate of the sale, proved or acknowledged, so that it may be recorded, containing: First, A particular description of the property sold. Second, The price bid for each distinct lot or parcel. Third, I)uplicate filed The whole price paid, a duplicate of which certificate must be by officers mak-.ngsale, filed by the officers making the sale, with the register of deeds of the county. Naysbe redeem- SEC. 2. Property sold, subject to redemption, as provided ed as hereafter provided. in the preceding section, or any part sold separately, may be redeemed in the manner hereinafter provided by the following persons, or their successors in interest: First, the judgment debtor or his successor i in iterest, in the whole or any part of the property. Second, A creditor having a lien, by judgment or mortgage, of the property sold, or on some share thereof, subsequent to that on which the property was sold. The persons mentioned in this and the preceding subdivisions, other than the judgment debtor, are, in this act, termed redemptioners. Judgment debt- SEC. 3. The judgment debtor or redemptioner may redeem or may redeem within two years the property from the purchaser within two years after the day of sale, on paying him the amount of his purchase, with interest, at the rate of ten per cent. per annum; and, if he be, also, a creditor, having a lien prior to that of the redemption, the amount of such lien, with interest, as aforesaid. Property re- SEC. 4. If the property be redeemed by the redemptioner, demptioner. either the judgment debtor or another redemptioner may, at or mayredeem. any time within two years after the sale of such property, again redeem it from the last redemptioner, on paying the sum paid on his redemption, with interest, as aforesaid, and, unless his lien be prior to that of the preceding redemptioner, the amount of such lien, with interest, as aforesaid; but, if any redemptioner, other than the judgment debtor, redeem, within the two years after the sale thereof, the judgment debtor shall have thirty days after the expiration of the said two years, If notrredeemed wherein to redeem. If no redemption is made within two within two years, convey- years after the sale, the purchaser is entitled to a conveyance; ance to be made. or, if so redeemed, whenever thirty days have elapsed, after two years from the sale, and no redemption has been made and notified therein, the time for redemption has expired, and the last redemptioner is entitled to a sheriff's deed. If Cii. 171.] REAL ESTATE, REDEMPTION OF 771 the debtor or owner redeem, at any time before the time for If debtor rederem before time of redemption shall expire, the sale is terminated and he is re- redemptions tx stored to his estate. minated. SEC. 5. The payment mentioned in the last two sections, Payment maybo made to purmay be made to the purchaser or redemptioner, as the case chaser. may be, or for him to the ofcer who made the sale; and a tender of the money is equivalent to payment. SEC. 6. A redempotioner must produce to the officer, or per- Redemptioner must proceed, son from whom he seeks to redeem, and file with his notice, iLow. in the sheriff's office: First, A copy of the docket of the judgment under which he claims the right to redeem, certified to by the clerk of the court wherein the judgment is docketed; or, if he redeem, upon a mortgage or other lien, a note of the record thereof, certified by the register of deeds or other proper officer. Second, A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, his agent or attorney, or of a subscribing witness thereto; and, Third, Affidavit of himself, his agent or attorney, showing the amount then actually due on the lien. SEC. 7. The debtor shall be entitled to retain possession of Debtor to retain possession. the premises sold, until the expiration of the time allowed for redemption; and the proper court, or the judge thereof, in vacation, may restrain the commission of waste on the property, by order granted, with or without notice, on the application of the purchaser or judgment creditor; but it is not waste for the person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or to use it in the ordinary course of husbandry, or to make the necessary repairs of buildings thereon, or to use wood or timber on the property therefor, or for the repair of fences, or for fuel in his family, while he occupies the property. SEe. 8. If the purchaser of real property sold on execution, If purchaser be evicted, may reor his successor in interest, be evicted therefrom in consequence cover price paid. of irregularity in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid, with interest, at the rate of ten per cent. per annum, from the judgment creditor; if the recovery was in consequence of the irregularity, [he] shall, therefore, be enti- Be entitled to tled to a new execution on the judgment for the price paid on 772 REAL PROPERTY. [CH. 172. the sale, with interest; and, for that purpose, the judgment shall be deemed valid against the judgment debtor, his personal representatives, heirs or devisors, but not against a purchaser in good faith, whose title or incumbrance accrued before a levy on such new execution. Any person may SEC. 9. When property, liable to execution against several compel contribntion. persons, is sold thereon, and more than a due proportion of the judgment is laid upon 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 May compel re. sale, he may compel repayment from the principal; in such payment. 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 shall make an entry thereof in the margin of the docket. Take effectwhen SEC. 10. This act shall take effect and be in force from and after its publication. Approved June 4, 1861. CHAPTER CLXXII. (Acts of 1860, Chapter CII.) AN ACT relating to Sales of Real Property. Be it enacted by the Governor and Legislative Assembly of tlhe Territory of Kansas: Officer making SECTION 1. In any sale of real property hereafter to be sale give what notice of ap. made, under any statutory provisions of this Territory, the officer or person whose duty it shall be to make such sale, shall give the person to whom the property to be sold shall belong at least five days' notice, if such person shall be a resident of the county in which such property shall be situated, of the time and place of appraising the same; and if such party be not a resident of such county, then such notice COi. 172.] REAL PROPERTY. 773 shall be at least twenty days prior to such appraisement, and shall be by publication in some paper printed in such county; but if there be no paper therein, then by written or printed notices, put up in at least five public places in said county. SEc. 2. The person so notified, to whom such property shall Person so notified may desigbelong, shall be entitled and allowed to designate to thenate propertyto be sold. person charged with the duty of making such sale, any part of such property which shall be in one and the same piece and parcel, which said part, provided two-thirds of the appraised value thereof shall be sufficient to discharge -the sum for which said sale is to be made, and all the costs therein, shall alone be subject to such sale. SEC. 3. Nothing in this act contained- shall be construed to If party notified'-<~~~~~~~~~~~~~ ~does not appear, affect the laws now in force governing such sales, in case thesale proceed according to law. party to whom such property shall belong shall fail, on being notified as provided in section first of this act, to be present at the time specified in such notice, and make such designation as provided in the next preceding section hereof; but, in such case, the said sales shall be, in all respects, conducted as now provided by law. SEC. 4. If the party to be notified, as provided in section If plarty notified first of this act, be a resident of the county in which thecountyproperty to be sold shall be situated, the said notice shall be in writing, and be served in like manner as is provided for in the service of similar notices in other cases. SEC. 5. The provisions of this act shall apply to all sales Provisionsapply to what sales, of real property hereafter to be made, under or by virtue of any execution on any judgment obtained in any action founded upon any mortgage, deed of trust, or other writing, or upon any contract, stipulation, or agreement whatever, whether expressed or implied, together with any or all sales of real property of any kind, character, nature, or class whatever, other than private or voluntary sales. SEC. 6. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed, so far as the purposes of this act are concerned. SEC. 7. This act shall take effect and be in force firom and after its passage, and until specially repealed. Approved February 27, 1860. 774 RECORDS, PUBLIC [Cu. 173. CIIAPTER CLXXlII. (Acts of 1859, Chapter CVII.) AN ACT to recover Public Records. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansa s: Public records SECTION. If any civil officer, having any record, books, deliverable to successor. or papers appertaining to any public office or any court, shall resign, or his office be vacated, he shall deliver to his successors all such records and papers. i; case of death. SEC. 2.. When such officer shall die, his executor or administrator shall deliver such records, books, and papers to his sulccessor. Pellaltyforv:ith- SEC. 3. If any such officer, or the executor or administrator holding, of' such offcer, shall fail to deliver such records, books, or papers, he or they shall forfeit not more than one thousand nor less than one hundred dollars, to be recovered by civil action or indictment, to the use of the county. Damages recov- SEc. 4. Such officer, or the executor or administrator of rcablye. such officer, shall pay to any person injured by the detention of such records, books, or papers all damages which may accrue to him, to be recovered by action on the case. Wa.rra;nt,,when SEC. 5. If any person, whose office has become vacated, or issued. his executors or administrators, shall fail to deliver any record, book, or paper to the person entitled to the same, any judge of the supreme or district court, upon the affidavit of any -or, served. credible person setting forth the facts, may issue his warrant, directed to the sheriff or coroner, commanding him to seize all the records, books, and papers appertaining to such officer, and deliver them to the proper officer named in such warrant. ~Sarcls. SEC. 6. The officer executing such warrant, may break open any doors, trunks, or places in which any records, books, or papers named in such warrant may be, or in which he may suspect them to be, and may arrest any person who shall resist the execution of such warrant, and carry him before some judge or justice, of the peace, to be dealt with for obstructing the execution of process. Penalty for fail- SEC. 7. Any officer to whom any such warrant may be ure of officer. directed and delivered, who shall fail to execute or return the same, or to perform any duty required of him in relation CH. 174.] RECORDER, LAND DISTRICT 775 thereto, shall forfeit not more than one thousand nor less than one hundred dollars, to be recovered by indictment or action on the case, to the use of the county. SEC. 8. Any person, aggrieved by any such warrant, may Citation of witapply to anv judge of the supreme or district court, who, upon affidavit of the applicant that injustice has been or is about to be done by such warrant, shall issue a citation to all persons interested, commanding them to appear before him, at a place and time named in the citation, which shall be served by the sheriff or coroner. SEC. 9. The judge may enforce obedience to such citation Enforced by attachment. by attachment, and shall proceed in a summary manner, and determine according to right and justice, and may issue his warrant for the restoration of any hook, record, or paper found to have been improperly seized. SEC. 10. If any private person shall have or obtain posses- Privat persons to deliver record sion of any books, records, or papers appertaining to anytoofficer. public office, he shall deliver them to the officer entitled to the same.'SECc. 11. If any person fail to do as required in the pre- Maybeproceeded against. ceding section, he shall be proceeded against, in all respects, as is provided for in cases of officers in this act. Sec. 12. This act to -take effect and be in force from and after the first day of June next. Approved February 10, 1859. CHAPTER CLXXIV. (Session of 1862.) AN ACT repealing an act to -establish the Office of Land District Recorder, and providing for the disposition of the Records of said Office. JBe it' enacted by the Legislature of the State of Kansas: SECTION 1. That an act entitled'an act to establish the Act repealed. office of land district recorder," approved the ninth day of February, A. ]). 1858, be and is hereby repealed; and the records of the several offices established under said act, shall Records to be copied. be copied or transcribed and distributed as hereinafter provided.,SEc. 2. The records of all deeds, mortgages, and other in- To be copied instrumlents affecting the title to real estate, in the offices of'the tfosteohrt ouotys 776 RECORDER, LAND DISTRICT [CIi. 174. several land district recorders, shall be copied into separate books, for each of the counties, in each of the several land districts in which any lands affected by such deeds, mortgages, or other instruments shall be situated. Such books shall be procured for this purpose, and shall be marked with the name of the county for which they are used, and shall be lettered ill alphabetical order, for each county, in case more than one book shall be necessary for one county; and within a reasonable time after the transcribing of said records, as aforesaid, The bookscon- shall have been completed, the said books, certified by the taining transcripits shallbe officers making such transcript, to be and contain true and office of register correct copies of the original records in said respective offices, of deeds of thepa countiesreseot- shall be deposited in the office of the register of deeds of the ively entitled thereto. counties respectively entitled thereto, and such copies, from and after the same shall have been deposited as aforesaid, shall be as legal and valid as if the same had been originally recorded in the registers' offices of said counties, and said Officers making officers making such transcripts shall also prepare for each transcript shall purchase for county an index to the records so transcribed, in the manner county an index to the records. provided by law for indexing records in the office of register of deeds. Commissioners. SEC. 3. That Miss Mary Jenkins for the Pawnee Land District, and Mrs. Mary Mason, of Leavenworth City, for the Delaware Land District, and Miss Mary Whitaker for the Ogden Land District, and Miss Laura B3. Marshall for the Osage Land District, be and the same are hereby appointed commissioners to carry out the provisions of this act. Dutiesofcom- SEC. 4. The commissioners provided for in the preceding missioners. section, shall, immediately upon receiving notice of their appointment, take into their possession the records of the respective land district offices, for the transcribing of which they shall have been selected, and shall proceed at once to transcribe the same in the manner prescribed in and by tihe second section of this act: Provided, said records shall be When records to completed on or before the second Monday in January, 1863, be completed. Before entering upon the discharge of their said duties, the Commissioners said commissioners shall severally enter into bonds, executed shallgive bond. to the State of Kansas, in the sum of two thousand dollars, with good and sufficient sureties, to be approved by the State treasurer, conditioned for the faithful performance of their several and respective duties under this act; and shall severAnd take an ally take and subscribe an oath to support the constitution of oath. Un. 174.1 RECoRDER, LAND DISTRICT 777 the United States, the constitution of the State of Kansas, and faithfully and impartially discharge the duties of their said offices, which oath shall be indorsed on said bonds, and filed therewith in the office of the State treasurer. SEC. 5. The said commissioners shall severally receive, as Com1p1t1ioI of compensation for their services in transcribing the said records, rg. the sum of seven cents per folio for each deed, mortgage, or other instrument copied as aforesaid, and five cents for indexing, to be paid out of the State treasury. The necessary books, provided for in section two of this act, shall also be paid for out of the State treasury. SEC. G. The said commissioners shall have the power, within Commissioners shall have pow their respective districts, to attest discharges of mortgages, trgeo attest disdeeds of trust, and other instruments for the security of thegages, &c. payment of money recorded in said records, as fully and legally, while transcribing said records, as the land district recorders in their respective districts could have done, and may demand and receive the same fees for such services as registers of deeds now are or hereafter may be allowed by law. SEc. 7. The said commissioners shall make their respective Shall make their reports to audireports, from time to time, to the auditor of State, of the ex- tor of state. penses incurred for books by them, and the number of folios transcribed by them, which said reports shall be verified by the oath of the commissioners making the same, and upon presentation of said reports, so verified as aforesaid, the iauditor shall, if satisfied of the correctness of said reports, audit and allow their claims or accounts against the State, and shall issue to the said commissioners entitled thereto warrants upon the treasury of the State for the amounts due to them respectively. SEC. S.. The said commissioners shall severally, on or before the first day of January, 1863, make to the auditor of State a report, in writing, containing the whole number of folios copied, and it shall be the duty of the auditor to communicate the same to the legislature at its next session thereafter. SEC. 9. Nothing in this act shall authorize said commis.. sioners to transcribe any instrument of writing for the security of money, mortgage or otherwise, which shall have been canceled on said records. SEC. 10. After said land district records have been transcribed as aforesaid, the commissioners shall deposit them in the office of the secretary of State. 778 REVENUE. [CH. 175. SEC. 11. This act shall take effect and be in force from and after its publication; and it shall be the duty of the secretary of State, immediately upon its approval by the governor, to cause it to be published once in the'' Topeka Record," which shall constitute such publication. Approved February 19, 1862. CHAPTER CLXXV. (Session 1862.) AN ACT to provide Revenue for the year 1862. Be it enacted by the Legislature of the State of Kansas: Rate of State SECTION 1. That for the purpose of raising revenue to den taxes for 1862. fray the expenses of the government for the year 1862, the proper officers designated by law to levy and collect taxes are hereby authorized and directed to levy and collect a tax of five mills on the dollar upon all property in the State of Kansas subject to taxation, and an additional tax of fifty' cents upon every white male person between the ages of twentyvone and fifty years. How to be ap- SE. 2. That the revenue provided in this act be appropripropriated. ated exclusively for the payment of appropriations made subsequent to the twenty-sixth day of March, 1861, and to create a sinking fund for the redemption and to pay the interest on any bonds of the State of Kansas, the issue of which has been authorized by law. Two mills to be SEC. 3. That two mills on the dollar of the tax levied shall paid in gold, &c. be payable in gold, silver or United States demand notes or coupons of the bonds of the State of Kansas, alone, which shall be reserved exclusively for the payment of the interest on the bonds of the State of Kansas, the issue of which has been anthorized by law, and for the redemption of such bonds. SEC. 4. This act shall take effect and be in force from and after its publication, and the Secretary of State is hereby directed to cause this act to be published once in some newspaper, published in Topeka, immediately after its passage, which shall constitute such publication. Approved March 4. 1862. CO. 176.] ROADS. 779 CHAPTER CLXXVI. (Chapter CIV. 1861.) AN ACT Defining the Mode of Laying out and Establishing Roads. Be it enacited by the Governor and Legislative Assembly of the Territory of Kansas: TERRITORIAL ROADS. SECTION 1. That all Territorial roads, not otherwise provided Petition colt.y commissioners -for, to be hereafter laid out, shall be by petition to the county for roads. comrmissioners, as hereinafter provided. SEC. 2. That all petitions for any Teirritorial road shallPetition seeciy: what. specify the place of beginning, the intermediate points, if any,:and the place of termination of said road. SEC. 3. That, on application by petition, signed by at least Board to apoint commis-twenty freeholders of each county through which it may be po in each proposed to lay out and establish any Territorial road, the board of commissioners of each of said counties shall appoint one disinterested freeholder of their respective counties, as commissioners to view and survey said road. SEC. 4. That previous to granting an: order on any petition, Bond to be given presented as aforesaid, one of the parties in each county in- tereste - terested in the location of such road, shall enter into a bond, with two or more responsible freeholders in said county as securities, to the satisfaction of the county commissioners, payable to the Territory of Kansas, and conditioned for the payment of all expense which may accrue in the location of said road, irn case the same should not be established a public highway.-V SEe. 5. That, on the filing of a petition and bond, agree- Commissioners to meet and perably to the provisions of the third and fourth sections of this form dutiee,.act, which shall be at the same nmeeting of the commissioners of all the counties interested in the location of the road, the ~commissioners shall issue their order, directing the commissioners by:them appointed to meet at the place of the beginning of said road, on the first Wednesday of the month then next ensuing; and the commissioners, when met as before directed, shall employ a skillful surveyor, chain carriers, a marker and other assistants, if necessary, and proceed to the discharge of: the duties of their appointments, respectively; Provided, That each commissioner, surveyor and chain carrier Proviso, shall, before entering on the duties of his appointment, take 780 ROADS. [CH. 176. an oath or affirmation, to discharge his duties faithfully and according to law. Rlad, how laid SEc, 6. That each Territorial road shall be laid out, from the place of beginning to the place of termination, on the most direct route, that suitable ground can be found whereon to establish the samne, always having regard to the intermediate points, if any, in such road; and all Territorial roads that shall hereafter be established, agreeably to the provisions of this act, shall be opened and considered public highways, sixty-six feet wide. amre,.. SEC. 7. That the commissioners appointed to lay out and establish any Territorial road shall cause the same to be correctly surveyed and marked, throughont the whole distance of the same, and note the courses and distances thereof; and, at the end of each mile, shall mark the number thereof, on a tree or monument erected by them for that purpose; and the comIoturo made. missioners and surveyor of each road shall make a certified return of the survey and plat, the whole length of said road, specifying in said return the distance the same may have been laid out in each county, and whether, in their opinion, the public convenience requires the establishment of said road, or any part thereof, one complete copy of which return shall be signed by a majority of the commissioners and surveyor, and immediately be deposited in the commissioner's office in each county- in which any part of said road shall be laid out; and the auditor of said county shall file the same in his office. If report favora: SEC. 8. That, in case the commissioners report in favor of the establishment of such road, the county commissioners of the respective counties shall, at their next session after the filing of said report, order the auditor to cause a notice thereof to be published in some newspaper in general circulation insaid county, for four consecutive,weeks before the next meeting of the board, notifying all the parties interested in the establishment of the same, that the commissioners of the said counties would hear the parties in favor of or against the establishment of said road, and the application for damages of any person, on account of the location of said road through',roio-so. his, her or their lands; Provided, That all persons who do not make application for damages, at the next regular session of the commissioners after the application [publication] bf said notice, shall be considered and held to have released all their claim to damages, by reason of the- location of the said road; CSI. 176.] ROADS. 781 Provided, further, That, if there be any lands, the owners of which have not granted the right of way, nor filed their application for damages with the county commissioners, the whole case shall be continued [to] the next regular session of the commissioners, and they shall again order the auditor to cause notice to such'owners and all other persons interested to be published in some- newspaper in general circulation in the county, for four consecutive weeks before their next meetingl, that they will, at such meeting, hear all applications for damages. SEc. 9. That, if any person or persons shall consider them- f person aggrieved by 1oca~ selves aggrieved by the location of said road through his, her tio, shall file petition. or their premises, such person shall file a petition, in writing, setting forth the premises on which they claim damages, with the commissioners of the proper county, at their next regular session after the publication of the notice provided for in the preceding section; and said commissioners shall appoint aJury toview jury of three disinterested freeholders of the county, whose r~d' duty it shall be, after having taken an oath or affirmation to faithfully and impartially discharge the duties imposed upon them by this act, to proceed to view the said road the entire distance the same may have been located through the premises of the complainant or complainants, and of minors, idiots, lunatics or insane persons, where the same are known, and to assess the compensation to be paid in money for the property sought to be appropriated, always taking into consideration the benefit arising from the location of the said road; Provided, however That it shall be lawful for the petitioners for Proviso. such road, or any one of them, to obtain relinquishment of damages and right of way, from any person or persons through whose land said road may be located. SEC. 10. That, if the commissioners shall be satisfied that Damages paid the amount so assessed and determined, by the jury aforesaid, whom. b be just and equitable, and the said road or any part thereof will, in their opinion, be of sufficient importance to the public to cause the damages to be paid by the county, they shall order the same to be paid the petitioners, from the county treasury; but if, in their opinion, the said road is not of sufficient importance to the public -to cause the same to be paid by the county, they may refuse to establish the same a public highway, unless the damages and expenses are paid by the petitioners; but, if there be no application made for damages, Ifano damages 50 782 ROADS. [Cm. 176. or the damages are paid by the county or petitioners, then and in either case the commissioners may establish the same a public highway, and order the same to be recorded. Compensationof SEC. 11. That the following persons, required to render persons employed. services under this act, shall receive compensation for each day they shall necessarily be employed as follows, to-wit: Commissioners, two dollars per day; chain carriers, markers and other assistants, one dollar and fifty cents each, and surveyors three dollars, to be charged as costs and expenses; the commissioners to be paid out of the county treasury of their respective counties, on the order of the county auditor; and the surveyor, ma[r]ker, chain carriers and other assistants, to be divided among all the counties interested, and paid out of the county treasury of the respective counties, on the order of the county auditors. Appeal to prop. SEC. 12. That an appeal from the final decision of the comer court. missioners, or [on] any petition for damages sustained by the location of any Territorial road, as provided for by this act, shall be allowed to the proper court of the proper county; Provided, That notice of such appeal be given, by the appellants, during the same session of the commissioners at which such decision was made; and the appellant or appellants shall, within ten days thereafter, enter into bond, with good Proceedings un- and sufficient security, to be approved by the county auditor, for the payment of all costs and expenses arising from or in consequence of such appeal; and the appellant shall, within five days thereafter, deliver, to the proper court, a transcript of the proceedings had before the commissioners; and, upon the reception of said transcript, the judge shall immediately issue a writ of summons upon such transcript, against the obligors in the bond filed under the fourth section of this act, which writ shall be served and returned as other writs of like character; and, in such suit, the appellant shall be plaintiff and the said obligors defendants; and, upon the return service of such writ, the judge shall issue a venire for a jury of six disinterested jurors of the county, who, after taking an oath or affirmation faithfully and impartially to discharge the duties of their appointment, shall proceed, on the day named in the venire, to view and determine the matter complained of, and, without delay, deliver their decision, in writing, to the said court, who shall enter the same on record, with the former proceedings, and certify the decision obtained in said CiH. 176.] ROADS. 783 court to the county auditor; and the decision made and entered on record shall be final, except as hereinafter provided. SEC. 13. That, in all cases of appeal from the final decision costs raid by of the county commissioners, as provided in the twelfth section of this act, the appellant or appellants shall pay all costs that may accrue in consequence of said appeal, unless the award rendered by the jury, appointed by said court, shall exceed in amount the award renderei by the jury appointed by the county commissioners. SEC. 14, That if, upon the reception of the decision so ob- fa importanceof road will not tained, the county commissioners shall not deem such road ofwarrant expense sufficient importance to cause the expenses incurred and damages so assessed to be paid by the county, they may refuse to establish the same, unless the parties interested in the location of said road shall pay or cause to be paid, be'fore the opening of said road, to the satisfaction of the county commissioners, in case said road is established a highway, all expenses incurred and damages assessed; Provided, however, It shall be lawful for Proviso. the commissioners, if, in their opinion, a part only of said road will be of public utility, to record and establish such useful part and reject the residue, in case it be capable of division. SEC. 15. That, in case such expense and damages are paid or Itdamagespaid, road to be essecured to be paid as aforesaid, or the commissioners direct the tablished. same to be paid by the county, then and in either case they shall enter an order that said road be established a public highway. SEC. 16. That, for their services required by the twelfth and Fee, how paid. thirteenth sections of this act, the officers and other persons required to perform services shall each be entitled to the same fees as they are entitled to by law for like services in other cases; and the auditors and clerks to be paid out of the county treasury, and the judge, and others entitled to fees, to be taxed in the bill of costs in the cause in court. COUNTY ROADS. SEC. 17. That all applications for laying out county roads, County roads to be petitioned for. viewing, reviewing, altering and vacating any county road shall be by petition to the county commissioners, signed by at least twelve freeholders of the county, residing in the vicinity where said road is to be laid out, viewed, reviewed, altered or vacated and one or more of the signers to any petition, presented as aforesaid, shall enter into bond, with sufficient security, payable by petitioners. 784 ROADS, [Cii. 176. to the Territory of Kansas, for the use of the county, conditioned that the. person or persons making such application for a view, review, alteration or vacation of any road, shall pay into the treasury of the county, the amount of all costs. and expenses accruing on such view, review, alteration or vacation. If prayer not In case the prayer of said petitioners shall not be granted, or when the proceedings had in pursuance thereof shall not be finally confirmed and established, and on neglect or refusal of the person so bound, after a liability shall have accrued, to pay into the treasury, according to the tenor of the bond, all costs and expenses that shall have accrued, the auditor of the county shall deliver such bond to the prosecuting attorney, whose duty it shall be to collect and pay over the same to the county treasurer; and, in all cases of contest, the court having jurisdiction of the case shall have full power to render judgment for costs, according to justice, between the parties. Petition specify SEC. 18. That all petitions for laying out or altering any what. county road shall specify the place of beginning, the intermediate points, if any, and the place of termination of said road. Notice to be giv. SEC. 19. That, previous to any petitions being presented for en of petitioning a county road, or for the alteration of a county road, or for the vacation of a county road, notice thereof shall be given by advertisement, set up at the clerk's office, and in three public places in each township through which any part of said road is designed to be laid out, altered or vacated, at least thirty days previous to the meeting of the commissioners at which the petition shall be presented; also, a notice, stating the time when such petition is to be presented and the substance thereof, shall be published for four consecutive weeks, before the presentation of any such petition, in some newspaper published in the county in which may be situated the road sought to be established, altered or vacated by such petition, if there be a newspaper'When petition printed therein; and, on the petition being presented, and the presented, board to appoint com- commissioners satisfied that notice has been given as aforesaid, they shall appoint three disinterested freeholders of the county as viewers, who shall also be a jury to assess and determine the compensation to be paid in money for the property sought to be appropriated; and they shall also assess and determine how much less valuable, if any, the land or premises from which such appropriation may be taken will be rendered by the opening and construction of said road, and also a skillful surveyor to survey the same, and shall issue their order, directing said CHr. 176.] ROADS. 785 viewers and surveyor to proceed on a day to be named in said Their duties. order, or, on their failing to meet on said day, within five days thereafter, to view, survey and lay out or alter said road; and, also, determine whether the public convenience requires that such road, or any part thereof, shall be sixty-six feet in width, or whether a less width than sixty-six feet will as well promote the public convenience, and report the width which, in their opinion, such road should be established and opened. SEC. 20. That it shall be the duty of the principal petitioner Principal petioner to give to give at least six days' notice, in writing, to the owner or own- ix daysr' -notice ers, or their agents, if residing within the county, or, if such'land owner be a minor, idiot or insane person,' then to the guardian of such person, if a resident of such county, through whose land said road is proposed to be laid out and established; and, also, six days' notice to the viewers and surveyor, named in the order of the commissioners, of the time and place of meeting, as specified in the said order. SEC. 21. That it shall be the duty of the viewers and sur- Commissioners and their duties veyor appointed as aforesaid, after receiving the notice required after taking in the foregoing section, to meet at the time and place specified in the order of the commissioners aforesaid, or within five days thereafter, and, after taking an -oath or affirmation faithfully and impartially to discharge the duties of their appointments, respectively, shall take to their assistance two suitable persons, as chain carriers, and one marker, and proceed to view, survey and lay out or alter said'road, as-prayed for in the petition, or as near the same as, in their opinion, a good road can be made, at a reasonable expense, taking into consideration the utility, convenience and inconvenience and expense which will result to individuals, as well as to the public, if such road or any part thereof shall be established: and opened or altered; and, also, as a jury, discharge the duties required of them by the fourth section of this act. And the said viewers shall, in addition to their duties as viewers, also, at the same time, assess and determine the damages sustained by any person or persons through whose premises the said road is proposed to be established: Provided, That such viewers shall not be required to assess or Proviso. award damages or compensation to any person or persons, except minors, idiots or lunatics, in consequence of the opening of said road, unless the owner or owners, or their agents, having notice, as provided for in the foregoing section, of the application and proceedings by which his, her or their property 78G6 OAD. [CrI. 176. is sought to be appropriated, shall have filed a written applica~ tion with said viewers, giving a description of the premises on which, by them, damages, or compensation are claimed; Provided, further, That all application for damages shall be barred, unless they be presented as provided for by this act.:Duties of su- SEC. 22. That the surveyor shall survey the said road under veyor. the direction of the viewers, and cause the same to be conspicuously marked throughout, noting the courses and distances, and, at the end of each mile, shall cause the number of the same, and, also, the commencement and termination of said road or survey, to be marked on a tree or monument erected for that purpose; he shall, also, make out and deliver to one of the viewers, without delay, a correct certified return of the survey of said road, and a plat of the same; and the viewers shall viewers make;make and sign a report, in writing, stating their opinion in repo favor of or against the establishment or alteration of said road or any part thereof, and set forth the reasons of the same; which report, together with the plat and survey of said road or alteration, shall be delivered to the county auditor, by one of the viewers, on or before the first day of the session of the commissioners then next ensuing. And it shall be the duty of the Commissioners commissioners, on receiving-the report of the viewers aforedeclare public highways,when. said, to cause the same to be publicly read on two different days of the same meeting; and, if no legal objection shall be made to them for review of said road, or [any]. part thereof, or alteration, and they are satisfied that such road, or [any] part thereof, if the same be capable of division, will be of public utility, and the report of the viewers being favorable thereto, and that no damages have been claimed or assessed; they shall, on the third day of the session, cause said reports, survey and plat, to be recorded, and, from thenceforth, said road shall be considered a public highway, and the commissioners shall issue their order to the proper overseer of highways, directing said XIfreport of road to be opened; but if the report of the viewers be against viewers against road. such proposed road or alteration, or if, in the opinion of the commissioners, the same shall be unnecessary, then no further proceedings shall be had thereon; and the obligor or obligors, in the bond securing the costs and expenses, shall be liable for the full amount of such costs and expenses; Provided, That in rroviso. all cases where an oath or affirmation is required to be taken by any person under the provisions of this act, the same may be administered.by the surveyor or by one of the viewers CH. 176.] ROADS. 787 or reviewers, who have previously been sworn or affirmed themselves. SEC. 23. That it shall be the duty of the viewers aforesaid, iewers to make separate report at the same time at which they are required to make their re- of damages. port of the view, to make a separate report, in writing, stating the amount of damages, (if any) and to whom, which by them have been assessed, which would accrue by the opening of said road; and they shall, also, file the written application on which such assessments have been made, with the county auditor; and the commissioners shall cause the said report to be publicly read on the third day of the session at which it was received. [If] the commissioners shall be satisfied that the amount so assessed If road of sumciont imporand determined be just and equitable, and that the said road tance, damages will, in their opinion, be of sufficient importance to the public to cause the damages which have been assessed as aforesaid, to be paid by the county, they shall order the same to be paid to the applicant or applicants from the county treasury; but, if in their opinion the said road is not of sufficient importance to the If not, by petipublic to cause the same to be paid by the county, they may refuse to establish the same a public highway, unless the damages which have been assessed are paid by the petitioners. SEC. 24. That when the place of beginning or true course of when true course of road any Territorial or county road shall be uncertain, by reason of uncertain. the removal of any monument or marked tree, by which such road was originally designated, or from any other cause, the county commissioners of the. proper county may appoint three disinterested landholders of the county to review and straighten said road, if they shall deem it necessary, and a competent surveyor to survey the same; and said reviewers and surveyor, after taking the oath or affirmation required by the fifth section of this act, shall view and survey said road, and the same correctly mark throughout, as in case of new roads, and shall make a return of said survey, and a plat of said road, to the commissioners, who shall cause the same to be recorded as in other cases; and from thenceforth, said road, surveyed as aforesaid, shall be considered a public highway. SEc. 25. That when it shall become necessary to establish a when road necessary on county road on a county line, the inhabitants along such line may peti- limoeircedi-ngs tion the commissioners of their respective counties for a view of act such road, in the manner pointed out in the preceding sections of this act; and it shall be the duty of such board of' commissioners, for each of the counties interested, to appoint two dis 788 ROADS. [Ci. 176. creet landholders as viewers, who, or a majority of them, shall meet at the time and place named in the order of the commissioners of the oldest county interested, who shall appoint a surveyor; and the viewers and surveyor appointed as aforesaid, shall, also, be a jury for the assessment of damages, and shall in all respects, be governed by the provisions of the preceding sections of this act; and the viewers and surveyor appointed as aforesaid, shall make their report, in writing, for or against such road, to the commissioners of the counties concerned; and the said commissioners, upon receiving such report, shall, in all respects, be governed by this act. If of sufficient SEC. 26. That if, on receiving such report, and there being importance, may be opened. no legal objections thereto, and the commissioners of all the counties interested shall be of the opinion that such road, if opened, would be of public utility, they shall order the same to be opened in the manner pointed out by this act. Any person re-' SEC. 27. That, if any person who shall be appointed by the fusing to perform duties, co mmissioners as viewer, reviewer or surveyor of any fined. road, shall refuse or neglect to perform the duties required by this act, without making satisfactory excuse for such refusal or neglect, he shall be fined in any sum not exceeding ten dollars, to be recovered by action of debt, by any person suing for the same, before any justice of the peace within the township wherein the person so appointed and refusing or neglecting may reside, and shall be paid over, without delay, by the justice of the peace, or constable collecting the same, to the treasurer of the township, taking his receipt therefor. And the trustees Fines, how ex- shall cause all fines, which shall be paid into the township treaspended. ury, under the provisions of this act, to be expended on roads and bridges within their townships. Compensation of SEC. 28. That all persons required to render service under persons employed. this act, shall receive compensation for each day they shall necessarily be employed, as follows, to wit: Viewers and reviewers, two dollars; chain carriers and markers, one dollar and fifty cents each; and surveyor, three dollars, to be charged as costs and expenses, and paid out of the county treasury on order of the county auditor. TOWNSHIP ROADS. Township roads SEC. 29. That, if any person or persons shall, for the conpetitioned for on giving notice. venience of themselves and neighbors, wish to have a township road laid out, from the plantation or dwelling place of any per Cu. 176.] ROADS. 789 son or persons, or from' any mill or house of public worship, or to any public road, or from one public road to intersect another, it shall be lawful for such person or persons to petition the board of county commissioners for the same, after giving twenty days' previous notice thereof, by advertisement posted up at three public places within said township, setting forth in said advertisement the time when such petition is to be presented, the place of beginning, intermediate points, if any, and place of termination of said road. SEC. 30. That on such petition being presented to the board, Petitioners to ~'-~~~ - ~~~~~give bond. and they being satisfied that proper notice has been given as aforesaid, they shall cause the petitioner or petitioners to enter into bond, with sufficient security, payable to the Territory, for the use of the township, and conditioned that the person or persons, making such application, shall pay the amount of all costs and expenses of the view and survey of said road, if not located; and the petition shall be read in open meeting of said board; and, they being satisfied that such proposed road is necessary, I' road eCCessathey shall appoint three judicious, disinterested landholders of appointed the township, who shall constitute a jury, and a surveyor, who shall, after taking the oath or affirmation required by the fifth section of this act, take to their assistance two chain carriers and a marker, and proceed, at the time directed by the board, or within three days thereafter, to view the ground along which said road is proposed to be established, and locate the same as near the prayer of the petitioner or petitioners as a good road can be had at a reasonable expense, and determine the compensation which shall be paid to the owner or owners of the land through which it is proposed to establish the same, and the amount of damages he, she or they may sustain. SEc. 31. That any township road which commences in a Ter- Township road commencing atnd ritorial, turnpike or county road, and passes on and intersects terminating in another Territorial, turnpike, county or township road leading;p Toterrit'oor terminating in a county, turnpike or Territorial road, shall bkyPt, ee. be opened and kept in repair by the overseer of highways in whose district any such township road may be situated in whole or in part; and it shall be the duty of the overseers of highways to cause so much of the labor of the person immediately interested in such township road to be applied to the opening or keeping such township road in repair, as he may deem reasonable; and the cost of the view and survey of such roads viewandsurvey to be paid by shall be paid out of the township treasury; but, if the viewers township. 790 ROADS. [CI. 176. Ifreportunfa- shall report that the prayer of the petitioner or petitioners is unreasonable and ought not to be granted, no further proceedings shall be had thereon by said board. Male persons of SEC. 32. That all male persons between twenty-one and fifty certain ages to perform two years of age, who have resided thirty days in this Territory, days work year- ly. and who are not a township charge, shall be liable, yearly and every year, to do and perform two days' work on the public roads, under the direction of the overseers of highways, within whose district they may respectfully [respectively] reside. Wsen to be or- SEC. 33. That it shall be the duty of every overseer of highways to order out every such person, resident as aforesaid, between the first day of April and the first day of October, annually, to do and perform the work aforesaid, on the public roads Ifpferogon oti- within his district; and, if any such resident, being personally duty. warned by the overseer of highways, or by leaving a written notice at his usual place of abode, or by some person under the direction of the overseer, by whom such warning can be proven, shall refuse or neglect, having had at least three days' notice, to attend ~by himself or substitute, to the acceptance of the overseer, on the day and at the time and plhcel-iirected by. the overseer, or, having attended, shall refuse to obey the directions of the'o!erseer, or shall spend the time in idleness or inattention to the duties assigned him, every such delinquent shall forfeit and pay for neglect to attend, or for any of the offences above specified, the sum of two dollars for every such offence, to be recovered by action before any justice of the peace of the proper township, at the suit of the overseer within Bieso, how ex- whose district he may reside; and the money so collected shall be applied by said overseer to the improvement of the road in his district, and accounted for by him at the annual settlement Proviso. with the trustee of his township; Provided, That no person shall be released from the performance of labor on the public highways by reason of the neglect of any overseer to order out such person on or before the first day of October. Renmolal to an- SEC. 34. That in case any person shall remove from one other district after road duty district to another, who has, prior to such removal, performed performed. the whole or any part of the labor aforesaid, or in any other way has paid the whole or any part of the amount aforesaid, in lieu of such labor, and shall produce a certificate of the same from the overseer of highways of the proper district, such certificate shall be a complete discharge for the amount therein specified. CH. 176.] ROADS. 791 SEC. 35. That any person, called upon to perform any labor Peon called upon to appear upon the public roads and highways, under any provisions of: when and with this act, shall, by himself or substitute, appear at the place appointed by the overseer, at the hour of eight o'clock in the forenoon, with such necessary tools and implements as the said overseer may direct, and the overseer may, if necessary for the improvement of the roads, order any person owning the same to furnish a team of horses, mules or oxen, and wagon, cart, scraper or plow, to be employed and used on the roads, under the direction of said overseer, who shall allow such person a reasonable compensation for the use of said team, wagon, cart, scraper or plow, in discharge of any labor or tax due from said person. SEC. 36. That for the purposes provided for in the preceding Redenlce hheld sections of this act, the residence of any person who has a family shall be held to be where his family resides; and the residence of any other person shall be held to be where he boards in any road district in this Territory. SEC. 37. That, whenever it shall happen, in consequence of If labor not performed within sickness, absence from home, or any other cause, that the two time specified. days' labor aforesaid shall not be performed within the time specified in this act, the overseer shall be authorized to require the performance of such work, at any other time prior to the first day of November then next ensuing; Provided, That such Proviso. delinquent may discharge the same, by paying to the overseer -the sum of three dollars, who shall appropriate it agreeably to the thirty-fourth [thirty-ninth] section of this act. SEC. 38. That the several overseers of highways within their Overseer to colrespective districts shall collect, by suit or otherwise, all fines, lect fines, &c. forfeitures and penalties arising and accruing under the provisions of this act, unless the collection thereof is otherwise herein provided for, and they are hereby authorized and required, before their settlement with the township trustee, to prosecute to final judgment all persons neglecting or refusing to comply with the provisions of this act, from whom such fine, forfeiture or penalty, in the opinion of the overseer, can be collected by execution, and the said judgments, if not paid, together with the costs thereon, shall remain and be in force against the judgment debtor, as other judgments at law are in case of debt; Provided, however, that all persons who are or may be exempt Proviso. from performing labor on the public highways by any law of this Territory, shall not be subjected to the provisions of this section. 792 ROADS. [CH. 1 26. Overseer to x- SEC. 39. That the several overseers of highways shall expend pend money on roacds. all moneys by them collected for the benefit of the roads and highways in the proper districts, by the overseers collecting the same; and every overseer is hereby required to account to the trustees of the township, at the annual settlement, for all To return list of moneys expended under this act; and they shall, also, return delinquents. a full and true list and statement of the names of all persons within their respective districts who have been ordered out to perform the two days' labor, as required by this act, and who Fines, &c., paid have refused or neglected to perform the same; and all fines to overseer onl demand. and forfeitures, sued for and recovered under the provisions of the act, shall be paid over, on demand, by the justice of the peace or constable collecting the same, to the overseer of such road district wherein such fine or forfeiture accrued; and the dOvrseer to ren- several overseers shall, also, render an account to the trustees, der annual account. at the annual settlement, of all moneys that remain in their hands at the time of settlement; also, all judgments that remain unpaid, and the name of the judgment debtor, and the justice before whom such judgments were obtained, with the amount thereof; and the trustee shall make such order, as to the prosecution of the suits by the overseers of the proper districts, against such delinquents, as, in the judgment of the trustee, the interest of the township may require. Money remain- SEC. 40. That all moneys that may remain in the hands of ing in overseer's hand at time of any overseer at the time of the annual settlement with the settlement paid to successor. township trustee, shall be paid over to his successor in office, as soon as such successor shall be elected and qualified, and be expended by him for the benefit of roads and highways, as proMay sue out ex- vided for in the foregoing section. And it shall be lawful for ecutions. any overseer to sue out executions on any judgments that remain unpaid, within his proper district, any time when, in his opinion, the same can be collected; and the money so collected, (if any there be,) shall be expended, as provided in the foregoing section. Overseer to open SEC. 41. That it shall be the duty of each and every overseer all public roads laid out in his of highways to open or cause to be opened all public roads and district. highways which shall have been or may hereafter be laid out and established through any part of the district assigned to such overseer the same to keep in repair, and remove or cause to be removed all obstructions that may, from time to time, be Privilgeges in so found thereon; for which purpose the overseers are hereby authoried to enter upon ny unultivated ing.umbe thorized to enter upon any uncultivated lands, unincumbered CH. 176.] ROADS. 793 by a crop, near or adjoining the public roads, to cut and carry away any timber, to dig or cause to be dug and carried away, any gravel, sand or stone, which may be necessary to improve or repair said road; and to enter on any lands adjoining or lying near the road, to make such drains or ditches through the same as they may deem necessary for the benefit of the roads, doing as little injury to said lands and timber as the nature of the case and the public good will permit; and the drains and ditches so made, shall be kept open by such overseers, if necessary, and shall not be obstructed by the owners or occupier of such lands or any other person or persons, under the penalty of forfeiting a sum not exceeding ten dollars for each and every offence, to [be] recovered and appropriated as provided for in the foregoing sections of this act. SEc. 42. That all avenues, streets and alleys, in villages, Avnues, streets I'~~~~~~~~~ and alleys letowns and cities, which are or may be laid out agreeably to law, clared highways shall be and the same are hereby declared public highways for every purpose whatsoever; Provided, That the municipal Proviso. authorities of any incorporated city, town or village, may make, ordain and enforce such laws and ordinances concerning the sidewalks of the streets of such city, town or village, as shall be deemed necessary to prevent such sidewalks from being used for the passage of horses, wagons or other carriages, or for hitching or standing horses or other animals thereon. SEc. 43. That each and every overseer of highways, who Overseer taking timber, stone shall cut any timber or take away any timber, stone or gravel, and gravel, to give certificate for the purpose of repairing any road, or the building oroflmountand repairing any bridge or crossways within his district, shall, on demand of the owner or owners, their agent or agents,.or the guardian or guardians of any minor, idiot or lunatic, of the premises from which such timber, stone or gravel shall have been taken as aforesaid, give a certificate, showing the quantity and quality of such timber, the number of loads of stone or gravel, with the value thereof, respectively, and the time the same shall have been taken. SEC. 44. That any person or persons who shall receive a cer- Person holding certificate to be tificate, as provided for in the foregoing section, shall present paid by county, the same to the County Commissioners of the proper county, at any regular session of said Commissioners, within six months after the taking and carrying away of such timber, stone or gravel, and, the Commissioners being satisfied that the amount of damages, certified as aforesaid, be just and equitable, shall 794 ROADS. [CH. 176 If notjust. cause the same to be paid out of the county treasury; but, if the Commissioners shall be of opinion that the amount of damages, as certified to by the overseer, ought not to be paid by the county, they may refuse to pay the same; in which case, they shall determine what sum, in their opinion, would be just; If applicant re- but, if the applicant for the payment of damages shall refuse to fuse to receive amount awarded receive the amount certified to by the overseer or the amount determined on by the Commissioners, then, and in either case, the Commissioners shall require the said applicant to enter into bond, with good and sufficient security, made payable to the Territory of Kansas, for the use of the county, conditioned for the payment of all costs and expenses that may accrue on a view for the assessment of damage. Jury appointed SEC. 45. That, on the filing of the bond, as provided for in to view when, and their duties. the foregoing section, the Commissioners shall appoint a jury of three disinterested citizens of the county, who shall, after first taking anr oath or affirmation to faithfully discharge the duties of their appointment, proceed, on a day to be named in the order of the Commissioners or on a failure to meet on said day, within five days thereafter, to view and examine the matter complained of, and assess and determine the damages, if any, and return their decision, in writing, to the auditor of the county, on or before the first day of the next regular session of If damages not the Commissioners. But if, upon actual view of the premises, declared greater. the jury shall be of opinion that the amount of damages are not greater than the amount proposed to be paid by the Commissioners, then the obligor or obligors, in the bond filed with the Commissioners, shall pay all the costs and expenses accruing under the view. Guide boards to SEC. 46. That each supervisor, [overseer,] within his district, be put up by overseer. shall erect and keep up, at the expense of the township, at the forks of every territorial and county road, a post and guide board or finger board, containing an inscription in legible letters, directing the way and distance to the town or towns, or public place or places, situated on each road respectively. Any person dis- SEC. 47. That if any person shall willfully demolish, throw turbing same, fined. down, alter or deface any mile board or guide board, on or at the fork of any public road, every person so offending shall, upon conviction thereof, before any justice of the peace of the proper county, be fined in any sum not exceeding ten dollars, with costs of suits and the money, when collected, shall be by the justice of the peace or constable collecting the same, paid Cu. 176.] ROADS. 795 over to the overseer in whose district the offense was committed, and be by him appropriated to the repair of the roads and highways within his district, agreeably to the provisions of this act. SEC. 48. That the Commissioners of each county, in this territory, at their meeting in October, shall levy a road tax of not Road tax levied. less than two nor more than five mills on the dollar, on all the lands in their respective counties, subject to taxation, without including the improvements thereon; and said tax may be worked out on the public highway, under the direction of the May be worrked overseer of the district where the land is situated, by any able bodied man, at the rate of two dollars per day;.Provided, That the tax herein mentioned, for the year A. D. 1860, shall be Provieo. levied in April next. SEC. 49. That it shall be the duty of the county clerk, immediately after such tax has been levied, upon the presenta- County clerk to deliver account tion, by the trustees of their respective townships, of a list Of of road tax due from each perall persons liable to perform labor on the roads or highways, or son to trustee; subject to taxation for the same, to make out and deliver to each trustee aforesaid, an abstract duplicate of the amount of road tax each person in said township may stand charged with; and the trustee shall then provide, [proceed,] agreeably to the provisions hereinafter contained. SEC. 50. That whenever the trustee of any township shall have received any money from the county treasury, for road oroney diplid to building purposes in such township, he shall cause the money, so bridges and re-received, to be appropriated to building bridges or repairing the public roads within his township; if for the building of a bridge or bridges, he shall give at least twenty days' notice, by If for bridges, to advertisement posted up in five of the most public places in said township, of the time and place of such sale, and sell to the lowest bidder, if, in his opinion, such bidder be competent to perform the same, such bridge or bridges as aforesaid, as they may deem expedient, equal to the amount of money to be appropriated as aforesaid; and, whenever such labor shall be performed, agreeably to contract or conditions of sale, the trustee shall, on demand, pay to the person or persons who have performed such labor, the amount due for the same. SEC. 51. That, if the trustee of any township shall deem it expedient to appropriate the money aforesaid, or any partIf for improvements of roads, thereof, to the improving of the public roads and highways, he proceed bow. may cause the amount thus set apart for the purpose of improving any road or roads in the: several districts in said township, 79 6 ROADS. [CII. 176. to be expended under the superintendence of the overseer of highways of said districts, or by such other persons as they may see proper to appoint; and it shall be the duty of the overseer, or such other person thus appointed, on receiving the amount so appropriated, to proceed to expend the same in improving of' the roads and highways in the proper districts: First, By procuring, by purchase or otherwise, such number of plows, scrapers and other tools as the township trustee shall direct or deem necessary for that purpose. Secondly, By the purchase of such materials as may be necessary, and to the employment of such number of teams and able bodied men, to perform such labor, at the customary price, as may appear to said overseer or superintendent to be just and right. Three days no. SEc. 52. That the overseers of the highways of the several tice to be given persons required districts shall give three clays' notice to persons residing in the to perform work district, charged with a road tax mentioned in a preceding section, and the time and place they will attend, and direct the If not allpaid, work to be performed as aforesaid; and, in case the whole of said tax, due from the residents within any district, shall not be paid in pursuance of the first notice aforesaid, in consequence of absence from home, sickness or other inability, the overseer shall appoint a time that he will again attend, and shall give If not paid by notice as aforesaid to such delinquents; and, if such tax shall Ist of September, returned delin- not be paid before the first day of September-, he shall return quent. the same as delinquent to the township trustee, on or before the tenth day of said-month; the township trustees shall return all delinquent road taxes to the county clerk, on or before the twentieth day of September, who shall place the same upon the tax roll; and such delinquent taxes shall be collected as other taxes upon said roll. Obstructions, SEC. 53. That any time during the year when any public how removed. highway shall be obstructed, by the fall of timbers or any other cause, or any bridge shall be impaired, so the passage of teams or travelers on said road, bridge or crossing, shall be dangerous, and the overseer of highways in the district in which such obstruction or impaired bridge- may exist, shall be notified of the same, it shall be his duty to- cause such obstruction to be removed or bridge repaired forthwith, for which purpose he shall immediately order out such number of inhabitants of his district as he may deem necessary to remove said obstructions or repair said bridge, SEC. 54. That each and every person so ordered out, who CH. 176.] ROADS. 797 shall, after having one days' notice, refuse or neglect to attend, Person tneglectwith proper implements wherewith to labor, at the time and place appointed by the overseer, or shall spend the time in idleness or inattention to the duties assigned him, every such delinquent shall forfeit and pay the sum of two dollars for every such offence, to be recovered, paid over and accounted for, and appropriated agreeably to the provisions of this act. SEc. 55. That, in all cases- where any person shall, under the Persons performing over direction of the overseer, perform more labor on the public road worki. than may be due from him, the overseer shall give such person a certificate, specifying the amount of extra labor so performed, which certificate shall be received for the amount specified in such certificate, in discharge of any labor within the same district, which may be due from the holder of such certificate, in any succeeding year, under the provisions of this act. SEC. 56. That each and every overseer of highways who shall Overseer neglecting duties or neglect or refuse to perform the several duties enjoined on him fnotherwiedoe by this act, or who shall, under any pretence whatever, give or sign any receipt or certificate, purporting to be a receipt or certificate for labor or work performed or money paid, unless the labor shall have been performed or tax paid, prior to the giving or signing such receipt or certificate, every overseer so offending shall forfeit, for every such offence, not less than fve dollars nor more than fifty dollars, to be recovered by an action before any justice of the peace within the township where such overseer may reside; and it is hereby made the duty of the trustees of the townships to prosecute all offences against the provisions of this section; Provided, That, if any overseerProviso. conceive himself aggrieved by the judgment of such justice of the peace, he may, on giving sufficient security to said justice for the payment of costs, appeal to the proper court, who shall make such order thereon as to them may appear just and reasonable; Provided, further, That this section shall not be so construed as to prevent any person from prosecuting any overseer for any offence against the provisions thereof; Provided, That Doniphan county shall be exempted from the operation of this act. SEce. 57. That all laws and parts of laws conflicting with this Acts repealed act be and the same are hereby repealed. SEd. 58. This act to take effect and be in force from and after its passage. Approved February 27, 186(0. 51 798 ROADS. [C(H. 177-178. CHAPTER CLXXVII. (Session, 1862.) AN ACT Locating a State Road from Lawrence to Paoli. Be it enacted by the Legislature of the State of K1nsas: SECTION 1. That the road from Lawrence to Paoli, as shown by the certified plats and tables of courses and distances on file in the office of the Secretary of State, is hereby declared a State road. SEC. 2. The amount of expenses incurred in the survey and location of said road, as well as the damages claimed for the right of way allowed, or to be settled, shall be adjusted in the manner as provided in section 6, 7, 8, 9 and 10, of an Act entitled, "An Act to establish certain State Roads." Approved June 4th, 1861. SEC. 3. This act to take effect and be in force from and after its passage. Approved March 4, 1862. CHAPTER CLXXVIII. (Session, 1862.) AN ACT to Locate a Certain Road. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That R. W. Dummer, James A. Davidson, and L. B. Stotler, are hereby appointed commissioners to locate a road between Topeka in Shawnee county, and Lecompton in Douglas county. Commissioners SEC. 2. That said commissioners, or a majority of them, shall to locate a road. meet on or before the first day of September, 1862, at the house of R. W. Dummer; and, being sworn faithfully to discharge their respective duties, shall procure necessary assistance and proceed to locate said road, beginning at section five in township twelve of range eighteen, east in Kansas, thence westerly upon the most direct and practicable route, to intersect the county or township road running east from the town of Tecumseh, not less than sixty feet in width, carefully planting stones in the exact middle at all angles; and said road shall be opened and remain open, for the purpose of public travel. SEC. 3. Within thirty days after the survey of said road, it Cn. 179.] ROADS —DAMAE.ES. 799 shall be the duty of said commissioners to file the field notes rield notes and plat to be filed and plat of the survey of such portion of said road as may be ith county in Douglas county with the county clerk of Douglas county, and such portion as may be in Shawnee county with the county clerk of Shawnee county, whose duty it shall be to record the same in the books of his office as if the same had been located by action of the board of county commissioners of the respective counties, and be entitled to the same fees for like service to be Fees of clerk paid by said commissioners, provided that all the services as herein required shall be made, without expense to the State of Kansas or the counties in which it may be located. SEC. 4. Thic act to be in force from and after its passage. Approved March 6, 1862. CHAPTER CLXXIX. (Session, 1862.) AN ACT Providing for Commissioners to Assess Damages sustained by the Location of a certain Road. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That Henry B. Keller, of Stranger township, Commissioner. to assess damChristopher Eheart, of Stranger township, and William S. Yode, age.s. of Delaware township, and all of Leavenworth county, be and they are hereby appointed commissioners to assess the damages done by the location of a certain Territorial road from Leavenworth city, by way of Lawrence, Minneola and the Sacs and Fox Agency, to Burlington, in the following portion of said road, viz.: commencing at the farm of Christopher Eheart, and running thence southwest to the line of the Delaware Reservation, on the south line of section six (6), township ten (10), range twenty-two (22), where said road crosses said line. Should any vacancy occur in the commission herein provided for, the commissioners or commissioner remaining shall fill the same by appointment. SEc. 2. The said commissioners shall meet in the city of Leavenworth, on a day to be appointed by themselves, not later than the first day of May, A. D. 1862, and take an oath, before some officer authorized to administer oaths, that they will faithfully discbarge their duties. SEc. 3. As soon as is practicable after the meeting of the said commissioners, provided for in the second section of this 800 SALARIES, [HE. 180 act, the said commissioners shall proceed to view the lands through which that portion of said road runs, to which the said commissioners are applicable; and said commissioners shall, after examination, assess the damages sustained by each landowner by the location of said road in the portion of it aforesaid, and shall, as soon as practicable thereafter, make a return thereof, under their signatures, to the board of county commissioners for Leavenworth county; Provided, That no damages shall be assessed by said commissioners on any land over which the right of way has been already obtained. SEC. 4. The said board of county commissioners shall, at their first meeting after the reception of the report of the proceedings of the commissio ners herein provided for, issue their orders on the county treasurer for the several amounts assessed by the commissioners aforesaid, and cause the said orders to be delivered to the persons entitled to the same. SEC. 5. Said road shall not be opened through that portion of it mentioned in the latter part of section first, until the provisions of this act shall have been fully complied with. Compensation of SEC. 6. Said commissioners shall receive, in full compensaomulmisioners. tion for their services herein provided for, the sum of three dollars per day each, for the time necessarily employed in the performance of the duties herein imposed upon them by this act, out of the treasury of Leavenworth county. SEC. 7. This act shall take effect and be in force from and after its passage. Approved March 6, 1862. COHAPTER CLXXX. (Chapter LXXV. May, 1861.) AN ACT to establish the Salaries of State Officers, Justices of the Supreme Court, Judges of the District Court, and Officers of the Legislature. Be it enacted by the Legislature of the State of Kans(cs oomypenstion. SECTION 1. That the persons and officers herein mentioned shall be entitled to receive, for their services, the compensation herein allowed, and no other, except as may be otherwise provided by law. aovernor's sal- SEC. 2. That the governor shall be entitled to receive for his services, annually, the sum of two thousand dollars. ~l,;enaBt.gov. SEC. 3. That the Lieutenant Governor shall be entitled to ornor, CH. 180.] SALARIES. 801 receive for his services the sum of six dollars per day, during the sitting of the Legislature, and also the sum of six dollars for every twenty miles of travel in going to and returning from each regular or special session of the Legislature; and, while acting as Governor, he shall receive te same salary as the Governor. SEC. 4. The chief justice of the supreme court shall be en- Salaries of justices and judges. titled to receive for his services the sum of eighteen hundred dollars per annum. SEC. 5. The associate justices of the supreme court, and the judges of the district court, shall each be entitled to receive for his services the sum of fifteen hundred dollars per annum. SEC. 6. The Secretary of State shall be entitled to receive secretary of State fifteen for his services the sum of fifteen hundred dollars per annum. hundred dollare. SEC. 7. The Auditor of State shall receive for his services the Auditor of State fifteen hundred sum of fifteen hundred dollars per annum. dollars, SEc. 8. The Treasurer of State shall be entitled to receive State treasure, twelve hundred for his services the sum of twelve hundred dollars per annum.. dollars. SEC. 9. The State Superintendent of Public Instruction shall state supt. pubbe entitled to receive for his services the sum of twelve hundred twelve hundred dollars. dollars per annum. SEC. 10. The Attorney General shall be entitled to receive Attorney general one thous-for his services the sum of ten hundred dollars per annum. and dollars. SEC. 11. The Speaker of the House of Representatives shall, Speaker of House three dotin addition to his per diem allowance as member of the louse, lars in addition to per diem. receive for his services the sum of three dollars for each day that he may actually preside as such Speaker; and, in case of his absence or inability to attend the session of the House, then the Speaker pro tem. shall receive such compensation. SEc. 12. The chief clerk of the House of Representatives Salariesof minor officers. and the Secretary of the Senate shall each receive, for the time actually employed in service, the sum of five dollars per day; and all the other clerks, sergeant-at-arms and door-keeper, and their assistants, of the Senate and House of Representatives, shall each receive for his services the sum of three dollars per day, for the time actually employed in such service; and the chief clerk of the House and Secretary of the Senate shall be allowed ten cents per folio for transcribing the journals of the House and Senate into books, to be deposited in the office of the Secretary of State; and that the Secretary of State shall be authorized to ascertain the amount due for such service; and, 802 SCOOLS,. [CH. 181. on the certificate of said Secretary, the Auditor shall draw warrants on the Treasurer for such amount. Messenger, SEC. 13. The messengers of the Senate and House of Representatives shall each receive for their services the sum of one dollar and fifty cents per day. Shallvotenoex- SEC. 14. Neither the Senate or House of Representatives tra allowance. shall be authorized to vote any extra allowance to its officers. When salaries SEC. 15. The salaries of the present State officers, justices of the supreme court and judges of the district court elect shall commence on the first Monday in January, 1861, and the salaries of the State officers, provided for in this act, hereafter elected or appointed, shall commence from the time they are qualified and enter upon the discharge of their duties. Take effect, SEC. 16. This act to take effect and be in force from and when. after its publication. Approved May 20, 1861. CHAPTER CLXXXI. (Chapter LXXVI, Acts 1861.) AN ACT for the Regulation and Support of Comlimon Schools-. Be it enacted by the Legislature of the State of Kansas: i~ducation under SECTION 1. The educational interests of the State shall be the supervision of the State su- under the supervision and managemlent of the State superinperintendent. tendent of public instruction. He shall, before he enters upon Superintendent the duties of his office, take and subscribe an oath or afirmaahall take oath. tion, to support the Constitution of the United States and of the State of Kansas, and faithfully to discharge the duties of Oath-filed, his office, which oath or affirmation shall be filed in the office of the Secretary of State. Shall have gen- SEc. 2. Ile shall have a general supervision over the cornmeral supervision Visit each coun- ll1 schools of the State. It shall be his duty to visit each tic. county in the State, at least once in each year, for the purpose of awakening an interest in the cause of education throughout Shall preserve the State. He shall file, and carefully preserve in his office, official reports. the official reports made to him by the county superintendents of the several counties, trustees or directors of academies, graded schools or colleges. Shallrecomi SEc. 3. It shall be his duty to recommend the most apmend text books Open corrs- proved text books for the common schools of the State, and potdlence. to open such correspondence as may enable him to obtain all, CE. 18i.] SCHOOLS. 803 necessary information relating to the system of common schools in other States. SEC. 4. H-le shall prepare, for the use of common school Shall prepare suitable forms to> officers, suitable forms for making reports and conducting all s priited and necessary proceedings, and he shall cause the laws relating to cormmon schools, with the forms aforesaid, and such instructions as he may deem necessary, to be printed in pamphlet form, and he shall cause the same to be distributed to the common school officers of the State. SEC. 5. He shall, on the first Monday of February in each shallapportion school money. year, apportion among the several counties of the State, according to the number of children in each, over the age of five and under the age of twenty-one years, the amount of school money in the treasury for the support of common schools the current year, and he shall certify such apportion- Shratlcnertfy aPortionment to ment to the State Treasurer. He shall, also, certify to thewhom. treasurer and county superintendent of each county, the amount apportioned to their county, and he shall draw his Sh alldraw his orders on the State treasurer, in favor of the county treasurer of each county, for the amount apportioned to said county. SEC. 6. The State superintendent of public instruction shall Shalel have, office at seat of have an office at the seat of government, where shall be kept government. all books and papers appertaining to the business of his office. Copies of all papers filed in his office. and his official acts, qifcial actscer may be certified by him, and, when so certified, shall be evi- Evidence. deuce, equally and in like manner as the papers. SEC. 7. HIe shall prepare, in each year, a report, to be sub- Yearly report shall contain mitted to the Legislature, bearing date on the last day of what. December, containing: First, A statement of the number of common schools in the State, the number of scholars attending the same, their sex, and the branches taught; a statement of the number of private or select schools in the State, so far as the same can be ascertained, and the number of scholars attending the same, their sex, and the branches taught; a statemrent of the number of normal schools in the State, and the number of students attending them; the number of academies and colleges in the State, and the number of students, and their sex, attending them, and such other matters of interest as he may deem expedient, drawn from the reports of the county superintendents of the several counties in the State, and from other reports received on the subject of education. from trustees or other school boards within the State. 804 SCHOOLS. [CH. 181. Second, A statement of the condition of the common school funds of the State, including moneys, school lands or other property held in trust by the State, for the support of common schools. Third, Estimates and accounts of the receipts and expenditures for the current year. Fourth, A statement of plans for the management and improvement of common schools, and such other information relating to the educational interests of the State as he may deem important. Shaidisoharge SEC. 8. He shall discharge such other duties as may be other duties. Shall deliver provided by law, and he shall deliver to his successor, within books, &o., to lis successor. ten days after tile expiration of his term of office, all books, papers, documents and other property belonging to the office. ARTICLE II. DUTIES OF COUNTY SUTPERINTENDENT. County superin- SEC. 9. The county superintendent of public instruction tendent to have charge of school shall have charge of the common school interests of the county. interest of county. Hle shall, before he enters upon the discharge of the duties of shall take oath. his office, take and subscribe an oath or affirmnation, to support the Constitution of the United States and of the State of Kansas, and faithfully to discharge the duties of his office, which oath or affirmation shall be filed in the office of the county clerk. Shall divide SEC. 10. It shall be his duty to divide the county into a county into dis- tricts. convenient number of districts, and to alter the same when the interests of the inhabitants of the several districts may require it; and, if any cony shall have been imperfectly or partly districted, he shall proceed, as soon as practicable, to complete and perfect the districting of said county, and he Shall number shall describe and number tile school districts of the county, schoo districts. ile papers. and file the papers, containing such description, in his office. Shall make an- SEC. 11. On the second AMonday of March in each year, or nual apportionmentofschool as soon thereafter as he shall receive the certificate of' the moneys. State superintendent, certifying the amount apportioned to his county for the use of common schools for the current year, he shall apportion such amount to the several districts or parts of districts within tile county, in proportion to the number of children residing in each, over tile age of five and under the age of twenty-one years, as the same shall appear friol the last annual reports of the clerks of the respective districts, Shall drawor- and he shall draw his order on the county treasurer, in favor der on county treasurer. of the several district treasurers, for the amount apportioned CI. 181.] SCHOOLS. 805 to each district; Prol'ided, No district shall be entitled to receive any portion of the common school fund in which a common school has not been taught at least three months during the year. SEC. 12. He shall visit each school in the county, at least hall visit schools. once each terml for the purpose of examining into the condition of the school, of ascertaining the text books used, and of giving such advice as he may deem proper, in reference to the course of studies pursued, and the general interests of the school. SEc. 13. He shall see that tile annual reports of the clerks Shall see that annual report8 of the several school districts in his county are made cor-are -made orrectly. rectly, and in due time. SEC. 14. He shall examine, annually, all persons offering Sha, examine themselves as teachers of common schools in his county, in regard to moral character, learning and ability to teach school, and hIe shall give to each person examined and found quali- Give acertilicate fled to teach, a certificate, signed by him, officially; and, any person receiving such certificate, shall be deemed a qualified teacher, within the meanirg of this act. SEC. 15. Whenever a school district shall be formed in any Notice to be givcn of formation county, the county superintendent of public instruction ofof district. such county shall, within fifteen days thereafter, prepare a notice of the formation of such district, describing its boundaries, and stating the number thereof, and appointing a time and place for the first district meeting. I-e shall cause the notice thus prepared, to be posted in at least five public places Notice shall be posted in five in the district, at least ten days before the time appointed for poblic places. such meetings. SEC. 16. I-Ie shall, between the first and twentieth days of Slalltransmit to State superirn November of each year, make and transmit inl writing, to the tendent annual report; what it State superintendent of public instruction, a report, bearing shall contai. date on the first day of November of each year, containing a statement of the number of school districts or parts of districts in t}he county, and the number of children and their sex, resident in each, over the age of five and under the age of twenty-one years; a statement of the number of district schools in the county, the length of time a school has been taught in each, the number of scholars attending the same, their sex, the branches taught, and the text books used; the number of teachers employed in the same, and thleir sex; a statemrent of the number of private or select schools in the county, so far 806 SCHOOLS. [CH. 181. as the same can be ascertained, and the number of scholars attending the same; the number of teachers employed in the same, their sex and the branches taught; a statement of the number of graded schools in the county, the length of time school has been taught in each, and the number of scholars attending the same, their sex and the branches taught, the number of teachers employed in the same, and their sex; a statement of the condition of the normal school, wlhere such school shall be established, the number of students attending the same, their sex, and the number of teachers employed in the same, and their sex; a statement of the number of academies and colleges in the county, and the number of students attending the same, and their sex, the number of teachers employed in each, and their sex; a statement of the amount of public money received in each district or parts of districts, and what portion of the same, if any, has been appropriated to the support of graded schools; a statement of the amount of money raised in each district by tax, and paid for teachers' wages, in addition to the public money paid therefor; the amount of money raised by tax, or -otherwise, for the purpose of purchasing school site, for building, hiring, purchasin g, repairing, furnishbing or insuring such school house, or for any other purpose allowed by law in the district or parts of districts, and such other information as the State superintendent of public instruction may require. Shall discharge SEC, 17. HIe shall discharge such other duties as may be such other duties as may be prescribed by law, and he shall deliver to his successor, within prescribed by lwi, ten days after the expiration of his term of office, all the books Shall deliver to successor books and papers appertaining to his office. and papers. If vacancy oc- SEC. 18. If a vacancy occurs in the office of county supercur, county com- b d I nissioners shall intendent of public instruction, by death, resignation or othaIppoint- erwise, notice thereof shall be given by the county clerk to the board of county commissioners, who shall, as soon as practicable, appoint some suitable person to fill the vacancy, and Person appoint- the person receiving such appointment shall, before entering ed to take an oath. upon the discharge of the duties of the office, file his oath or Oath filed. affirmation in the county clerk's office, as hereinbefore provided, and he shall discharge all the duties of the office of county superintendent of public instruction, until a successor is elected and qualified. at. 181.] SCHooLS. 807 ARTICLE III. SCHOOL DISTRICTS. SEC. 19. The inhabitants, qualified to vote at a school dis- trict meetings shall have trict meeting, lawfully assembled, shall have power: First, powert~o appoint To appoint a chairman to preside over said meeting, in theCho083 officers. absence of the director. Second, To adjourn from time to time. Third, To choose a director, clerk and treasurer, who shall possess the qualifications of voters, as prescribed in the next section of this act, at the first and each annual meeting thereafter. Fourth, To designate, by vote, a site for a district site for school house. school house. Fifth, To vote a tax annually, not exceedingvotea tax. one-half of one per cent., on the taxable property in the district, as the meeting shall deem sufficient, to purchase or lease a site; Provided, When not included within the limits of an Shall not contain less than incorporated town or village, said site shall not contain less one acre, when. than one acre, and to build, hire or purchase such school house, and to keep in repair and furnish the same with the necessary fuel and appendages. Sixth, To vote a district tax To vote a district'D tax annually. annually, not exceeding one-fourth of one per cent., on the taxable property in the district, for the pay of teachers' wages in the district. Seventh, To authorize and direct the sale of To direct sale of school house, any school house site, or other property belonging to the dis- site, or other property. trict, when the same shall no longer be needful for the use of the district. Eighth, To vote such tax as may be necessary to To votetax not to exceed one-'furnish the school house with blackboards, outline maps and four'th onfeon apparatus necessary for illustrating the principles of science, num or to discharge any debts or liabilities of the district, lawfully incurred; Provided, The said tax shall not exceed one-foburth of one per cent. per annum. Ninth, To give such direction Provision for suits. and make such provision as may be deemed necessary in relation to the prosecution or defence of any suit or proceeding in which the district may be a party. Tenth, To make such To m.,eorlarn order as they deem proper for the separate education of white df cored chiland colored children, securing to them equal educational advantages; to alter or repeal their proceedings, from time to time, To alter their as occasion may require, and to do any other business contemplated in this act. SEC. 20. The following persons shall be entitled to vote at Persons entitled to vote at mcetany district meeting: First, All persons possessing the quali —i-g fications of electors as defined by the Constitution of the State, and who shall be residents of the district at the time of offering 808 SCHOOLS. [CH. 181. to vote at said elections. Second, All white female persons over the age of twenty-one years, not subject to the disqualifications named in section second, article fifth of the Constitution of the State, and who shall be residents of the district at the time of offering to vote. lenged, oathto StEC. 21. If any person offering to vote at a school district be tendered. meeting shall be challenged as unqualified, by any legal voter, the chairman presiding shall declare, to the person challenged, the qualifications of a voter; and, if such challenge be not withdrawn, the chairman, who is hereby authorized, shall tender to the person offering to vote, the following oath or affirmation:' You do solemnly swear (or affirm) that you are an actual resident of this school district; and that you are qualified, by law, If oath taken, to vote at this meeting." Any person taking such oath or person entitled to vote, affirmation shall be entitled to vote on all questions voted upon at such meeting. District deemed SEc. 22. Every school district shall be deemed duly organorganized when ofcers elected. ized when the officers constituting the district board shall be elected; they shall signify their acceptance to the county superintendent, in writing, which he shall file in his office. Every person duly elected to the office of director, clerk or treasurer of any school district, who shall refuse or neglect, without sufficient cause, to accept of such office and serve therein, or who egalcdtor rounftl-aving entered upon the duties of his office, shall neglect or forfit ten dol- refuse to perform any duty required of him by the provisions of this act, shall forfeit the sum of ten dollars. Officers of school SEC. 23. The officers of each school district shall be a didistrict constitute board. rector, clerk and treasurer, who shall constitute the district Shall hold office board, and who shall hold their respective offices until the anhow long. nual meeting next following their election or appointment, and until their successors are elected and qualified. School district Sec. 24. Every school district, organized in pursuance of shall be a body possess ceranin this act, shall be a'body corporate, and shall possess the usual powers. powers of a corporation for public purposes, by the name and style School District No. - (such a number as may be designated by the county superintendent,) county, (the name of the county in which the district is situated,) State of Kansas, and in that name may sue and be sued, and be capable of contracting and be contracted with, and holding such real and personal estate as it may come into possession of, by will or otherwise, or as is authorized to be purchased by the provisions of this act. CH. 181.J SCHOOLS. 809 SEc. 25. An annual meeting of each school district shall be Annualmeeting. held on the last Saturday of September of each year, at such hour as the board of directors shall name. Special meetings Specialmeeting. may be called by any member of the district board, or by any five legal voters, but notice of such special meeting, stating the Notice of same. purposes for which it is called, shall be posted in at least three public places within the district, ten days previous to the time of meeting. SEC. 26. Whenever the time for holding an annual meeting Clerklshfallgive in any district shall pass without said meeting being held, the meetin. clerk, or, in his absence, any other member of the district board, within twenty days after the time for holding said annual meeting shall have passed, may give notice of a special meeting by putting up written notices thereof, in three public places within the district,'at least five days previous to the time of meeting; but, if such meeting shall not be notified within twenty days as aforesaid, the county superintendent may give coulety suprirnnotice of such meeting in the manner provided for forming new give notice. districts; and the otficers chosen at such special meeting shall Terms of office. hold their offices until the next annual meeting, and until their successors are elected and qualified. SEc. 27. The qualified voters at each annual meeting, or at Voters may determine length any special meeting duly called, may determine the length ofof time school taught. time a school shall be taught in their district for the then ensuing year, which shall not be less than three months, and whether such school shall be taught by a male or female teacher, or both, and whether the school money to which the district may be entitled, shall be applied to the support of the summer or winter term of the school, or a certain portion to each; but, if such matters shall not be determined at the annual or any if they neglect, board to deterspecial meeting, it shall be the duty of the district board to de- mine. termine the same. SEC. 28. The director of each district shall preside at all Director of district shall predistrict meetings, and shall sign all orders drawn by the clerk, side, sign all orders, and appear authorized by a district meeting, or by the district board, upon in all suits. the treasurer of the district, for moneys collected or received by him, to be disbursed therein. He shall appear for and in behalf of the district, in all suits brought by or against the district, unless other direction shall be given by the voters of such district, at a district meeting. SEC. 29. The clerk of each district shall record the proceed- Clerlshallrecord proceedings ings of: his district, in a book provided by the district for that 810 SCHOOLS. [CH. 181. purpose, and enter therein copies of all reports made by him to hcall preserve the county superintendent, and he shall keep and preserve all records and dewrscm stohi8 records, books and papers belonging to his office, and deliver the same to his successor in office. Clerk o shall be SEC. 30. The said clerk shall be clerk of the district board, clerk of board. and of all district meetings, when present; but, if such clerk pVotert mcley shall not be present at any district meeting, the voters present may appoint a clerk of such meeting, who shall certify the proceedings thereof, and the same shall be recorded by the clerk of the district. Clerk hall give - SEC. 31. It shall be the duty of the clerk to give at least ten ten days notice of meeting, and days notice previous to any annual or special district meeting, by posting up notices thereof, at three or more public places in the district, one of which notices shall be affixed to the outer door of the school house, if there be one in the district, and Shall give notice said clerk shall give the like notice of every adjourned meeting, of adjourned meeting. when such meeting shall have been adjourned for a longer peNotie shall riod than one month. Every notice for a special district meetof eeting. ing shall specify the objects for which such meeting is called, and no business shall be acted upon at any special meeting, not specified in said notice. Clerk shall draw SEC. 32. The clerk of the district shall draw orders on the orders for money treasurer of the district, for moneys in the hands of such treasurer, which have been apportioned to or raised by the district, to be applied to the payment of teachers' wages, and apply such money to the payment of such teachers' wages, as shall have been employed by the district board, or by the citizens of the district, and said clerk shall draw orders on the said treasurer for moneys in the hands of such treasurer, to be disbursed for any other purpose ordered by a district meeting, or by the district board, agreeably to the provisions of this act. Shall make out SEC. 33. It shall be the duty of the clerk to make out tax tax list. lists of all taxes legally authorized by the district, and annex to such tax lists a warrant, under the hand of said clerk, directed to the treasurer of said district, requiring said treasurer to collect the sums therein named. Shall mntke out SEC. 34. The clerk of each district shall, between the first and transmit report, costain-and fifteenth days of September, in each year, make out and itransmit a report, in writing, to the county superintendent of public instruction, showing: First, the number of children, male and female, designated separately, residing in the district or parts of districts, on the last day of August previous to the CH. 181.] SCHOOLS. 811 date of such report, over the age of five and under the age of twenty-one years. Second, The number of children attending school during the year, their sex, and branches studied. Third, The length of time a school has been taught in the district by a qualified teacher, the name of the teacher, the length of time taught, and the wages paid. Fourth, The amount of money received from the county treasurer within the year, and the manner in which the same has been applied. Fifth, The amount of money raised by the district in such year, and the purposes for which it was raised. Sixth, The kind of books used in the school, and such other facts and statistics in regard to the district school, as the county superintendent may require. SEc. 35. Whenever a school district shall lie partly in two Wh~en ditriet or more counties, the clerk of such district, in making his an- ormorecountie. nual report, shall carefully designate the number of children resident in the parts of the counties composing the district, and shall report to the county superintendent of public instruction of each of the counties in which such district may be partly situated. SEc. 36. The treasurer shall execute to the district a bond, Troeaul o shdall in double the amount of money, as near as can be ascertained, to come into his hands as treasurer of the district during the year, with sufficient securities, to be approved by the director and clerk, conditioned to the faithful discharge of the duties of said office. Such bond shall be filed with the district clerk, Bond to b filed. and, in case of the breach of any condition thereof, the director In case of brech directors shall shall cause a suit to be commenced thereon, in the name of the cause suit to be commenced. district, and the money collected shall be applied by such director to the use of the district, as the same should have been applied by the treasurer; and, if such director shall neglect or refuse to prosecute, then any householder of the district may cause such prosecution to be instituted. SEC. 37. If the treasurer shall fail to give bond, as required If he fail to give bond, board maw in this act, or, from sickness or any other cause, shall be unable appoint. to attend to the duties of said office, the district board shall appoint a treasurer, who shall possess all the powers of the district treasurer, and shall, before entering upon the duties of said office, give a bond, as the districttreasurer is required to give. SEC. 38. The treasurer of each district shall apply for and Treasurer shal apply for, colreceive, from the county treasurer, all school moneys appor- lact and pay over tioed to his istrict, an shall collect all istrict taxmoneys. tioned to his district, and shall collect all district taxes assessed 812 SCHOOLS. [CIH. 181. in pursuance of the provisions of this act, and pay over, on the order of the clerk, signed by the director of such district, all moneys so received or collected by said treasurer. If he neglect or SEC. 39. If any district treasurer shall refuse or neglect to refuse to pay scvsermsoeYo pay over any money in the hands of such treasurer belonging prosecute, to the district, it shall be the duty of his successor in office to prosecute, without delay, the official bond of such treasurer for the recovery of such money. If, by neglect, SEC. 40. If, by the neglect of any treasurer, any school school moneys be lost, he shall monleys shall be lost to any school district, which might have forfeit. been received from the county treasurer, or collected from the district tax assessed, said treasurer shall forfeit to such district the full amount of moneys so lost. He shall present SEc. 41. The treasurer shall present to the district, at each reports, and exhibit at annual annual meeting, a report, in writing, containing a statement of meeting vouchera. all moneys received by him from the county treasurer during the year, also, all moneys collected by him during the year from assessments in the districts, and the disbursements made and exhibit the vouchers therefor, which report shall be recorded by the clerk; and, if it shall appear that any balance of moneyis in his hands at the time of making such report, he shall immediately pay over such balance to his successor in office. ARTICLE IV. DISTRICT BOARD. District board SEC. 42. The district board shall purchase or lease such a shall procure site for school site for a school house as shall have been designated by the house. voters at a district meeting, in the corporate name thereof, and shall build, hire or purchase such school house, as the voters of the district, in a district meeting, shall have agreed May sell prop- upon, out of the funds provided for that purpose, and make sale of any school house site, or other property of the dis,yeaute acon- trict, and, if necessary, execute a conveyance of the same, in the name of their office, when lawfully directed by the voters of such district, at any regular or special meeting, and shall carry into effect all lawful orders of the district. Shall have care SEC. 43. The district board shall have the care and keeping of school house. of the school house, and other property belonging to the district. They shall have power to make such rules and regulations relating to the district library, as they may deem proper, and (O. 181.] SCHOOLS. 818 to appoint some suitable person to act as librarian, ando to take May appoint librarian. charge of the school apparatus belonging to the district.SEc. 44. The district board shall have power to admit schol- May admit scholars from ars from adjoining districts. other districts. SEC. 45. The district board in each district shtll contract ShallhireteachS ers. with and hire qualified teachers, for and in the name of the district, which contract shall be in writing, and shall specify the wages per week or month, as agreed upon by the parties, and such contract shall be filed in the district clerk's office. SEC. 46. The district board shall provide the necessary Board shall provide what. appendages for the school house during the time a school is taught therein, and shall keep an accurate account of all expenses thus incurred, and present the same for allowance at Shallkeep account of expenany regular district meeting. see. SEC. 47. The district schools established under the provisions District schools shall be free. of this act shall, at all times, be equally free and accessible. to all the children resident therein, over five and under the age of twenty-one years, subject to such regulations as the district board in each may prescribe. SEC. 48. In every school district there shall be taught what shall be orthography, reading, writing, English grammar, geographytaught and arithmetic, if desired, during the time the school shall be kept, and such other branches of education as may be determined by the District board. SEC. 49. If a vacancy should occur in the district board, in Vacancy in school board. any district, the county superintendent shall appoint some suitable person to fill such vacancy. ARTICLE V. NEW DISTRICTS. SEC. 50. When a new district is formed, in whole or in part, ew district from one or more districts possessing a school house, or entitled to other property, the county superintendent, at the time of forming such new district, shall ascertain and determine the proportion of the value of such school house or other property justly due to said new district; such proportion, when ascertained, shall be collected by the district board of the district, retaining the school house, or other property, upon the taxable property of the district, in the same manner as if the same had been authorized by a vote of the district, for building a school house, and, when collected, shall be paid to the treasurer of the 52 814 SCHOOLS. [CH. 181. new district, to be applied towards procuring a school house for such district. Any person ag- SEC. 51. If, in the formation or alteration of a school district, grieved may appeal. any person or persons shall feel aggrieved, such person or persons may appeal to the board of county commissioners, who shall confer with the county superintendent, and their action shall be final. If schooldistrict SEC. 52. When it shall become necessary to form a school necessary in two or more counties district, lying partly in two or more counties, the county superintendent of the counties in which the said tract of country shall be situated, when application shall be made, in writing, by five householders, shall, if by them deemed necessary, meet and proceed to lay off, and form the same into a school district, and shall file the proper papers in their respective offices, and such district shall be organized as other school districts. ARTICLE VI. DISTRICT TAXES. Taxes assessed SEC. 53. All taxes raised and collected in any school district, on what property. for any of the purposes authorized in this act, shall be assessed on the same kind of property as taxes for county purposes are assessed. lerk shall enter SEC. 54. The clerk of the school district, in making out any lable to pay tax lists, shall enter therein the names of all persons liable to pay a school district tax in such district, the amount of personal property to be taxed to each such person, and a description of all taxable real estate in the district, distinguishing that owned by non-residents of the district, and, he shall set opposite to each description of taxable property, the valuation of the same, and the amount of tax charged upon such property, and to each person respectively, or tract of land owned by non-residents; and such description and valuation of taxable property shall be ascertained, as far as possible, from the last assessment roll of the county. ]District board SEC. 55. Whenever any real estate, in any school district, shall apportion txes, when. shall not have been separately valued in the assessment roll of the county, and the value of such real estate cannot be definitely ascertained from such assessment roll, the district board of such district shall estimate the value of the same, and apportion the taxes thereon. Warrant annex- SEC. 56. The warrant annexed to any tax list shall be under ed shall be under hand of the hand of the clerk of the district, and shall command the clerk. Om.. 181.] sCHooLS, 815 treasurer of such district to collect, from each of the persons and corporations named in said tax list, and of the owners of the real estate described therein, the several sums set opposite the persons and corporations so named, and to the several tracts of land owned by non-residents, within forty days from the date le shall colloet thereof, and within twenty days from the date of such warrants, days. to personally demand such tax of the persons charged therewith; and that, if any tax shall not be paid within ten days thereafter, to collect the same by distress and sale of property, ay collect by distress. in the same manner as county taxes; and the said treasurer shall execute the said warrant, and return the same to the clerk, at the expiration of the time limited therein for the collection of such tax list. SEC. 57. If any tax on real estate, in any tax list delivered If not paid, de-'~~~~~~~~~~~~ - ~~~linquent list to to the treasurer of any district, shall remain unpaid at the time bo delivered to county clerk. he is required by law to return his warrant to the clerk of the district, such treasurer shall make out and deliver to the county clerk, a statement, in writing, containing a description of the lots and pieces of land upon which such taxes remain unpaid, together with the amount of tax assessed to each, and he shall make and subscribe an affidavit to such statement, that the taxes mentioned in such statement remain unpaid; and the county clerk, upon delivery to him of such statement, shall give a cer- Call certify to tificate to the county treasurer, and, also, to the district treas-ountaresnddise arer, of the amount of the taxes so remaining unpaid, which certificate shall be deposited by the district treasurer with the district clerk, and shall be filed with such clerk. SEC. 58. The county treasurer shall, in making out thecomunty treasn-. rer, in making annual delinquent assessment roll next thereafter, enter such out delinquent rolls, shall add unpaid taxes, and interest thereon, at the rate of twenty perinterest. centum, in a separate column therein, opposite to the description of the land upon which the taxes remain unpaid; and such taxes shall be collected in the same manner that county taxes are collected, and, when collected, shall be paid over to the district treasurer. SEC. 59. The warrant issued by the clerk of any school dis- Warrants may be executed, trict, for the collection of any district tax authorized by any ofwhere. the provisions of this act, may be executed any where within the limits of the county, and such warrants shall have the like force and effect as a warrant issued for the collection of county taxes; and the treasurer of the district, to whom any such war- Treasurer posrants may be delivered for the collection of a tax list, shall.w"what, p 81G sc~iooLsC. [CE. 181. possess the like powers in the execution of the same as are, provided by law for the collection of county taxes. Board may order SEC. 60. Whenever any error may be discovered in any dismoney refunded, hen. trict tax list, the district board may order any money which may have been improperly collected on such tax list, to be refunded, and may authorize the clerk of the district to amend and correctsuch error, in said tax list. Tax paid by ten- SEc. 61. Whenever any district tax, lawfully assessed, shall ant, may charge and collect of be paid by any person on account of any real estate whereof owner. he is only a tenant, such tenant may charge and collect of the owner of such estate, the amount of tax so paid by him, unless some agreement to the contrary shall have been made by the tenant. Clerk shall SEC. 62. It shall be the duty of the county clerk of each make out list of taxable prop- county, as soon as the annual assessment roll shall be completed orty. in each year, to make out for each district in such county, a description of all taxable property therein, with the valuations affixed thereto, as the same shall appear in the last assessment Certify to samedroll, which shall be certified by him and delivered to the clerk of each school district in the county. ARTICLE VII. GRADED SCHOOLS. Graded schools, SEC. 63. Whinever the inhabitants of two or more school how founded. districts may wish to unite for the purpose of establishing a graded school,"in which instruction shall be given in the higher branches of education, the clerks of the several districts shall, upon written application of five voters of the respective districts, call a meeting of the voters of such districts, at some convenient place, by posting up written notices thereof, in like manner as provided for calling district meetings; and, if a majority of the voters of each of the two or more districts shall vote to unite for the purpose herein stated, they shall, at that meeting, or at an adjourned meeting, elect a board of directors, consisting of a director, clerk and treasurer. Directors shall SEc. 64:. The board of directors provided in the preceding possess all pow era. section, shall, in all matters relating to the graded schools, possess all the powers and discharge all the like duties of the district board of directors, as prescribed in this act. Union district SEC. 65. The union district, thus formed, shall be entitled entitled to school faunds. to an equitable share of the school funds, to be drawn from the treasurer of each district so uniting, in proportion to the num l 181..] CtSHOOLS. 817;Ier of children attending the said graded school, for each district. SEC. 66. The said union district may levy taxes fbr the pur District may levy taxes, govpose of purchasing a building, or furnishing proper buildings erned by law. for the accommodation of the school, or for the purpose of defraying necessary expenses and paying teachers, but shall be governed, in all respects, by the law herein provided for levying and collecting district taxes. SEC. 67.'The clerk of the union district shall report, in Clerkofdistrict writing, to the treasurer of each school district uniting in theshallreport union district, the number of scholars attending the graded school from his district, their sex, and the branches studied; and the said district treasurer shall apportion the amount of school money due the union district, and pay the same over to the treasurer of the union distriect, on order of the clerk and director thereof. SEC. 48. The clerk of the union district shall make a report Clerk of district shall report to to the county superintendent of public instruction, and cfounty superintendent. discharge all the duties of clerk, ins like manner as clerk of the district. SEC. 69. The treasurer of the union district shall perform Treasurerofdietrict to performa all the duties of treasurer, as prescribed in this act, in likewhat duties. manner as the district treasurer. SEC. 70. The public schools of any city, town or village, Public schools of any city,town which may be regulated by special law, set forth in the charter or village shall receive school of such city, town or village, shall be entitled to receive their funds. proportion of the public school fund; Provided, The clerk of' the board of education in such City, town or village, shall make due report within the time and manner prescribed in this act, to the county superintendent of public instruction. SEC. 71. Any single district shall possess power to'establish Single district may have graded graded schools, subject to the provisions of this article in like schools. manner as two or rnore districts united. ARTICLE VIII. THE DISTRIBUTION OF THE INCOME OF THE SCHOOL FUND. SEC. 72. The income of the State school fund, and the sohool fard aie tributod annuannual taxes collected by the State for the support of schools, ally. which shall be received up to the first day of January of each year, shall be distributed annually, between the first day of February and the first day of March, in each year, among the 81S sCHOOLS; [H. 18. several counties of the State, from which reports have been received by the state superintendent of public instruction, inK proportion to the number of children resident therein, over the age of five and under the age of twenty-one years. Treasurer of SEC. 73. The treasurer of each county shall apply for and each county shall receive sare. receive of the State treasurer, the school moneys appropriated to his county, as soon as the same shall become payable. Cotrhll pay SEc. 74. Each county treasurer receiving such moneys, shallf over, when. upon proper application of the district treasurer of any dis-k trict, pay over to the said district treasurer the amount apportioned to the district by the county' superintendent. Countytreasurer SEa. 75. The county treasurer shall collect all moneys due shall collect money due the the county for school purposes, from fines, forfeitures or procounty for school purposes. ceeds, from the sale of estrays, and all moneys paid by persons as equivalent for exemption fron military duty, and he shall pay over the same to the said district treasurer, as prescribed in the preceding section. He shall, also, collect the delinquent taxes on real estate, in any district, in the same manner as county taxes are collected, whenever such deIino quent tax list shall have been lawfully reported and returned to him, and he shall pay the same over to the treasurer of the district to which such delinquent taxes are due; and, if any If treasurerre- county treasurer shall refuse to deliver over to the order of fuse to deliver doeyie the county superintendent any school money in his possession, or shall use, or permit to be used, for any other purpose than is specified in this act, any school money in his possession, he shall, on conviction thereof, be adjudged guilty of a misde — meanor, and be punished by a fine not exceeding five hundred State annual dollars or by imprisonment in the county jail not exceedin, school fund shall c exedn consist of what. one year. SEc. 76. For the purpose of affording the advantages of a fiee education to the children of the State, the State annual school fund shall consist of the annual income derived fronr A.nual tax. the interest and rents of the perpetual school fund, as provided in the constitution of the State, and such sum as will be produced by the annual levy and assessment of one mill upon the dollar valuation of the taxable property of the State, and there is hereby levied and assessed annually, the said one mill upon the dollar, for the support of common schools in the State; and the amount so levied and assessed, shall be collected in he same manner as other State taxes. State treasurer SEC. 77. The State treasurer shall receive all the annual receive annual ilcome, and income of the State appropriated for the annual support of Ca. 181.] SCHOOLS. 819 schools, whether derived from the interests of moneys loaned, hold same subject to order. rents of school lands or annual tax, and hold the same, subject to the order of the State superintendent of public instruction. SEC. 78. He shall keep, in a separate book, an account of He shanllkeep account of all school moneys in the State, distinguishing between the per- school moneys, petual fund and the annual fund, for disbursement, and he tate superinshall report to the State superintendent, on the first day of January, the amount of school moneys on hand. SEC. 79. He shall pay over to the treasurer of each county, Shall pay over to treasurer of on application, the amount of school money due the saideach county. county, on order of the State superintendent of public instruction. SEC. 80. The State treasurer shall execute, to the State of State treasurer -'~~~~~~~~~~: ~~~shall execute a Kansas, a bond, in double the amount of money, as near asbond. can be ascertained to come into his hands as treasurer of the school funds of the State, with sufficient sureties, to be approved by the Governor and superintendent of public instruc- Approved. tion, colditioned that he will faithfully discharge his duties as treasurer of the school funds of the State. Said bond shall be filed in the office of secretary of State. ARTICLE IX. MISCELLANEOUS. SEC. 81. It shall be the duty of the teacher of every dis-Teachersshall ake out and trict school or grade school, to make out and file with the dis-file a report. trict clerk, at the expiration of each term of tile school, a full report of the whole number of scholars admitted to school during such term, distinguishing between male and female, the text books used, the branches taught, and the number of pupils engaged in the study of said branches. Any teacher who If teacher fail o refuse to file shall neglect or refuse to comply with the requirements of this such report. section, shall forfeit his or her wages for teaching such school, at the discretion of the district board. SEC. 82. Every clerk of a district who shall willfully sign a Punishment of clerk who shall false report to the county superintendent of his county, shall will"ully sign false report. be deemed guilty of a midemeanor, and punished by a fine not exceeding one hundred dollars, or by imprisonment not exceeding three months. SEC. 83. Every school district clerk or treasurer who shall Penaltyfor nelect to deliver to neglect or refuse to deliver to their successors in office alltheir successors. records, books and papers belonging severally to their offices, shall be subject to a fine not exceeding fifty dollars. 820 SCHOOLS. [CH. 181. enaltrifteoun- SEc. 84. Every county superintendent who shall neglect or dnt fal to de- refuse to make and deliver to the State superintendent of pubperintendent. lie instruction his annual report, as required by this act, within the time limited therefbr, shall be liable to pay the full amount of money lost to the county by such neglect or refhsal, with the interest thereon, to be recovered by the county treasurer, in the name of the county. Jdgments to be SEC. 85. Whenever any final judgment shall be obtained paid by tax, and notunder exeu- against any school district, the district board shall levy a tax tion. on the taxable property in the district for the payment thereof; such tax shall be collected as other school district taxes, but no execution shall issue on judgment against a school district. Justices of the SEC. 86. Justices of the peace shall have jurisdiction in all peace shall have jurisdiction. cases in which a school district is a party interested, when the amount claimed by the plaintiff shall not exceed one hundred May appeal. dollars, and the parties shall have the right of appeal, as in other cases. Persons having SEC. 87. All persons having school moneys or other school school moneys required to pay property in their possession, by virtue of any act heretofbre over. p onf passed, are hereby required to pay over and deliver the same to the proper officers, provided for by this act. If State super- SEC. 88. If any State superintendent of public instruction intendent shall receive a bonus shall receive from the publisher of any school books, or from from book publishers, penalty. any other person interested in the sale or introduction of any book into the public schools of the, State, any money or bonus, in any manner, as an inducement for the recommendation or introduction of any such book into the public schools of the State, said superintendent shall, upon conviction thereof, before any court of competent jurisdiction, be found guilty of a misdemeanor, and shall be fined in a sum not less than one thousand dollars, nor exceeding five thousand dollars, or shall be imprisoned in the penitentiary for any time not less than one year nor more than five years, or by both such fine and imprisonment. Fines and pen- SEC. 89. All fines and penalties not otherwise provided for alties collected. in this act, shall be collected by an action in ally court of competent jurisdiction. Acts repealed. SEC. 90. All acts and parts of acts inconsistent with this act, and all previous acts upon the subject of education, are hereby repealed. When to take SEC. 91. This act to take effect and be in force fi om and after effect, its publication. Approved May, 1861. CH. 182-183.] SCHOOL FUND-SCIENCE. 121 CHAPTER CLXXXII. (Session, 1862.) AN ACT to provide for the Distribution of the School Fund. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That all counties which levied and collected acertaincounties authorized to re. school tax for the year 1861, be authorized to retain the same tain school tax for 1861. in the county treasuries, and expend the same for the support of common schools in the counties where collected; the same to be expended according to existing laws and under the direction of the several county superintendents. SEC. 2. That the State Treasurer is hereby authorized and State treasurer authorized to reinstructed to repay, on demand, any school moneys in his fundto county treasurers cerhands, paid to him on account of school moneys collected on tain moneys. tax of 1861, to the treasurer of the county, paying the same to him, the same to be there expended under the provisions of Section 1 of this act. SEC. 3. This act shall take effect and be in force from and after its publication once in the "Topeka Record." Approved January 30, 1862. CHAPTER CLXXXIII. (Chapter LXXVII. 1861.) AN ACT to promote Medical Science. Be it enacted by the Legislature of the State of Kansas: SECTION 1. It shall be lawful for professors and teachers in Making it laful for profesmedical colleges and schools in this State, or where such col- sors to hPaf bodies of conleges or schools do not exist, for any medical and surgical as- demned crimsociation, or regular physician or surgeon, to claim and re- al ceive any person executed pursuant to sentence of law, all persons dying in hospitals, and all persons dying in the penitentiary, while under sentence of law for crime, to be used for the purpose of medical and surgical study; and, when such claim is made by said professors or teachers to the authorities having such body in charge, it shall be delivered to them forthwith for the aforesaid purpose; Provided, That said Bodies claimed body or remains shall not have been regularly interred and shall not be Used 822 SCIENCE. [CH. 183. shall not have been claimed for interment by any relation or personal friends of said deceased person within twenty-four hours after death; Provided, also, That the remains of no person who may be known to have relatives or friends, shall be delivered or received without the consent of said relatives or If any person in friends; and, Provided, That the remains of any person who their last sick- dess retpssbes a shall have expressed a desire in his or her last siclkness, that led, the body his or her body may be interred, shall not be delivered or shall not be taken. claimed as aforesaid, but shall be buried in the usual manner; Bodio sSubse- and, Provided, also, That, in case the remains of any person, quently claimed. shall be deliver- so delivered and received, shall be subsequently claimed by od up. any surviving relative or friend, they shall be given up to such relative or friend for interment; and it shall be the duty of said professors and teachers, decently to bury, in some Bodies shall be public cemetery, the remains of all bodies after they shall decently inter- te red after they have answered the purposes of study as aforesaid, and for any have subserved the,purposes of neglect or violation of tle provisions of this act, the parties so violating shall forfeit and pay a penalty of not less than one hundred nor more than two hundred dollars. Bodies shall be SEC. 2. The remains or bodies of such persons as may be so used for medical and slrgical claimed and received by the professors and teachers as aforestudies alone. said, shall be used for the purpose of medical and surgical study alone, and in this State only, and whoever shall use such reBodies shall not mains for any other purposes, or shall remove such remains be taken out of this State. beyond the limits of this State, shall be deemed guilty of a misdemeanor, and shall, on conviction, be imprisoned for a term not exceeding one year, in the county jail. Yiosiont of pro- SEC. 3. Every person who shall deliver up the remains of visions of this act amoisdemean-any deceased person,-in violation of or contrary to any provisions contained in the first section of this act, and any person who shall receive said remains, knowing the same to have been delivered contrary to any of the provisions of said section, shall each and every of them be deemed guilty of a misdemeanor. SEC. 4. All laws, so far as they are inconsistent with this act, are hereby repealed. SEC. 5. This act shall take effect and be in force from and after its publication. Approved _May 7, 1861. Cu. 184.] SETTLERS. 823 CHAPTER CLXXXIV. (Acts of 1861, Chapter LXXIX.) AN ACT relating to Settlers upon Land without any legal right thereto. Be it enacted by the Legislature of the State of Kansas: SECTION 1. If any person shall settle upon and take pos- Settlers on land. session of any tract of land, or any part thereof, being the property of another person, without any legal right so to do, and shall remain thereon four days after being notified, by the owner, his agent, or attorney, to abandon and quit the same, the owner thereof, or his agent or attorney, may appear before any justice of the peace in and for the county in which the land is situated, and after making oath before such justice that the said settlement was made and possession had without his consent, (or the consent of his principal, as the case may be,) and that he is the lawful owner thereof, and cause a summons to issue to the person who made the said settlement, and returnable three days thereafter, commanding him to appear before the said justices and show his right to the laud; and if the justice shall, after due examination, find that the settlement was made and possession held without any legal right so to do, he shall render a judgment against the defendant, and in favor of the plaintiff, for restitution of premisesRestitultion of and costs of suit, and shall, at the request of the plaintiff, his agent, or attorney, issue a writ of execution thereon, directed writ of execution. to any sheriff or constable of the- county, commanding him forthwith to remove the defendant from the premises, and collect the costs of suit. Collect costs. SEC. 2. The officer shall, within five days after receiving the writ, execute the same, by restoring the plaintiff to the possession of the premises, and shall levy and collect the costs, and make return as upon other executions. SEC. 3. If the person so removed shall thereafter return Shallnotreturn upon land withupon the said land, or any p at thereof, for the purpose of out consent of owner. settlement or possessing the same, without the consent of the owner, his agent, or attorney, in writing, he shall be deemed guilty of a misdemeanor, and on due conviction thereof, before the district court for said county, shall pay a fine of Shallpayfine. not less than twenty-five dollars, nor more than five hundred dollars, in proportion to the amount of the damages he may have occasioned, for the benefit of the common school fund, Fine goes to common school. as well as the costs of the prosecution, or imprisonment in the 824 SOCIETIES, AGRICULTURAL [CI. 185. county jail not less than ten days, or more than six months, as the court shall determine. Justice shall is- SEC. 4. It shall be the duty of any judge or justice of the sue warrant of arrest. peace, before whom any complaint shall be made, under oath, of any violation of the previous sections, to issue the necessary warrant of arrest for the person complained against, and to commit him to custody, for trial at the next term of the district court, unless the said accused person shall furnish good and sufficient bail, in a sum to be fixed by the said judge or justice of the peace: Provided, however, that nothing in this act shall take away or impair the rights to damages, or other legal remedy, which the owner of the land may now have under the laws of this State. When to take SEC. 5. This act to take effect and be in force from and effect. after its publication. Approved June 4, 1861. CHAPTER CLXXXV. (Session 1862.) AN ACT to organize a State Agricultural Society. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That all persons who now or may hereafter become associated for the purposes of this act, are hereby constituted a body corporate, by the name of the Kansas State Agricultural Society, for the purpose of promoting the improvement of agriculture and its kindred arts; and any citizen of this State may become a member of said society, by the payment annually of a membership fee, not exceeding one dollar. Powers, &c., of SEC. 2. For then purposes aforesaid, the society shall be, and the same is hereby made, capable in law to have, purchase, receive, and possess, to them and their successors, real and personal estate, necessary to give effect to the purposes of this society, and the same to sell, grant, demise, and dispose of, and to sue and be sued in all courts in this State or elsewhere: Provided, that the real or personal estate which the society shall be authorized to hold, over and above its library and its scientific and agricultural collections, shall not, at any time, exceed in amount the value of ten thousand dollars. CaH. 186.] SOCIETIES, AGRICULTURAL 825 SEC. 3. The society shall have power to appoint such officers as they may deem expedient, and also to make such by-laws and regulations as shall be deemed necessary for the wellordering and government of the society. SEC. 4. This act may be altered, amended, or repealed, at the pleasure of the legislature of the State of Kansas. SEC. 5. This act shall take effect and be in force from and after its passage. Approved March 6, 1862. CHAPTER CLXXXVI. (Chapter LXXX, 1861.) AN ACT to authorize the formation of County and Town Agricultural and Horticultural Societies. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That any ten or more persons, inhabitants of County and town agriculttithis State, desiring to form an agricultural or horticulturalr land hor-ti society, in any county, town, city, or village of this State,ties, hw frm may make, sign, and acknowledge duplicate articles of association, before any officer authorized to take acknowledments of deeds, and file the same with the secretary of the State Agricultural Society, and the clerk of tile county in which the business of the society is to be conducted, which articles shall state the name by which such society shall be known in law, the particular business and objects of such society, the number of trustees, directors, or managers who shall manage the same, and the names of such officers for the first year of its existence. SEC. 2. Upon filing such articles of association as aforesaid, the persons who shall have signed the same, and their associates and successors, shall thereupon, and by virtue of this act, become a body politic and corporate, by the name stated in such articles: Provided, no two societies shall assume the No two societies shall assume the same name; and by that name they and their successors shall same name. and may have succession, and be capable in law of suing and being sued; may have and use a common seal, and the same May haveaom. mon seal. alter and change at pleasure; and they and their successors, by their corporate name, be capable of taking and receiving, May hold real estate. by gift, grant, or demise, purchasing and holding, for the purpose and uise of the incorporation, real estate not exceed 826 STATE OFFICERS. [C(E. 187. ing fifty thousand dollars in value, and of personal estate not to exceed ten thousand dollars in value, and may make all necessary by-laws for the management of said society, not inconsistent with the laws of this State or of the United States. shailell be SEC. 3. Any person shall be eligible to membership in such society who shall subscribe to and comply with the articles of association of the same, and shall be a stockholder therein, and entitled to all the privileges and immunities thereof. Officers, when SEC. 4. The officers of said society shall be elected annually elected, and their duties, by the stockholders of said society, and shall constitute a board for the management of the concerns of the society, and it shall be their duty to manage the property and concerns of said society as will best promote the interests of agriculture, May hold fairs horticulture, and mechanic arts; and, for this purpose, they and exhibitions, and distribute may hold fairs and exhibitions, and may distribute premiums premiums. for the best and most meritorious animals or articles exhibited in the several departments, as shall be by their by-laws and regulations provided. But one society SEC. 5. There shall be but one county society in any one county of this State, nor shall there be more than one town society in any city, town, or village. Shall be subject SEC. 6. All societies organized in accordance with the proto provisions of law. visions of this act, shall be subject to the provisions of law governing corporations, so far as applicable. Take effect SEC. 7. This act shall take effect and be in force from and when. after publication. Approved May 10, 1861. CHAPTER CLXXXVII. (Chapter LVIII, 1861.) AN ACT defining the Powers and Duties of certain State Officers. Be it enacted by the Legislature of the State of Kansas: GOVERNOR. Governor shall SECTION 1. The governor, immediately upon his approval notify the house of approval. of any act or joint resolution of the legislature, shall notify the House in which the act or joint resolution originated of such approval. He shall cause all acts and joint resolutions, Laws deposited in office of osec- which have become laws or taken effect by his approval or retary of State. CHO 187.] STATE OFFICERS. 827 otherwise, to be deposited in the office of the secretary of State without delay. SEC. 2. Whenever the governor shall receive notice of the Governor shall notify the attorcommencement of any action or proceeding, by which the neyg eneral. rights, interests, or property of the State shall be liable to be affectedl he shall inform the attorney general thereof, and require him to act in conjunction with- the counsel of the proper party to protect the interests of the State; and in any such case, or in any action prosecuted or defended in behalfay employ as of this State, he may, if the public interests- require it, employ such counsel as he shall deem proper to assist in any such action or proceeding; and in case of the absence or sickness miay rnploy of the attorney general, or if he shall be. in any way interested attorney genera. is absent. adversely to the State in any action or proceeding, the governor may employ counsel to act in his stead. SEc. 3. Whenever any criminal, charged with a capitalMay oferre wards not to ex offence, or with any felony, shall escape, or whenever any ceedfiellhun heinous crime has been committed in this State, the governor LCh. 32-307.] mnay offer a reward for the apprehension and delivery or conviction of such criminal, or the perpetrator of such crime: Provided, that in no case shall the reward thus offered exceed the sum of five hundred dollars. SEC. 4. All expenses incurred under the two last preceding Expenses paid sections shall be paid out of the State treasury. treasury. SEC. 5. The governor of this State is hereby authorized Govoernorm ly receive the per and empowered to receive from the treasury department ofcentum. the United States, from time to time, as he shall see fit to draw for the same, the five per centum of the net proceeds of sales of the public lands to which this State is or shall be entitled, pursuant to the act of Congress approved January 29, A. D. 1861, and to execute the proper vouchers therefor, and shall immediately pay the same into the State treasury, Shall pay into to the credit of thle school fund, and shall take a receipt from treasary of the the treasurer for the same, and make report thereof in his next annual message to the legislature. SEC. 6. The governor of this State is hereby authorized to Governor is audistribute the quota of arms and military equipments, which tribute the quo ta of arms. the State of Kansas may receive from the government of the United States, under the provisions of the several acts of Congress providing for: arming and equipping the whole body of the militia of the United States. He shall require theshallrequire bond for aromso officers to whom such arms or equipments are distributed and 828 STATE OFFICERS, [CEi. 187. delivered, to execute to the State of Kansas a bond, with two sufficient sureties, to be approved by him, in the penal sum, as near as may be, of double the value of said arms or equipments, conditioned for the safe keeping and delivery of the same, on the order of the governor. point private SEC. 7. The governor shall have power to appoint a private secretary. secretary, who shall hold his office during the pleasure of the governor. if bond is bro. SEC. 8. When the conditions of any bond given by either ken, the governor emay order of the State officers shall be broken, it shall be the duty of the governor to order the same to be prosecuted. Suit may be instituted and prosecuted to final judgment against such officer or his respective sureties, or one or more of them, jointly or severally, without first establishing the liability of such officer, by obtaining judgment against him. Governor shall SEC. 9. It shall be the duty of the governor to coinmunireport to each legislature. cate to the legislature, at the commencement of each annual session thereof, the annual reports of all the State officers required by law to report to him, and to do all other acts prescribed by law. SECRETARY OF STATE. Secretary ot SEC. 10. The secretary of State shall, before entering upon State shall take and subscribe an the discharge of his duties, take and subscribe the oath preoath. scribed by law, and give a good and sufficient bond, for the Shall give bond sum of ten thousand dollars, with two or more sureties, to be ten thousand dollars. approved by the governor and auditor, conditioned for the faithful discharge of the duties of his office, which oath and bond shall be filed in the office of the auditor. Shall have ac- SEC. 11. The Secretary of State shall, at all times, have access to the seal ofState. cess to the great seal of the State, and may use the same in verification of his official acts, in all cases when such use may not be in conflict with the Constitution of the State or prohibited by law. Duties of secre- SEC. 12. It shall be the duty of the Secretary of State: First, y of. To keep a record of the official [acts] of the executive department of the State, and he shall, when required, lay the same, and all matters relative hereto, before either branch of the LegShall counter- islature. Second, He shall countersign all official acts done by sign all official icts of governor. the Governor, (his approbation of the laws excepted,) and shall make a register of all commissions issued by the Governor, specifying the person to whom given or granted, the office con Cm. 187.] STATE OFFICERS. 829 ferred, with the date and tenor of the commission, in a book, to be provided for that purpose. Third, He shall have the cus- Shall have cus-oo tody of all books, records, deeds, bonds, parchments, maps, and othereffets papers and other articles and effects belonging to the State, deposited or kept in his office, and shall, from time to time, make such provisions for the arrangement and preservation thereof as shall be necessary; and the same, together with all accounts and transactions of his office, shall be open, at all,q!lliaoconts and times, to the inspection and examination of the Governor, or shall be open to any committee of either or both Houses of the Legislature. Fourth, He shall report annually, at least ten days before each regular session of the Legislature, to the Governor, any matters pertaining to his office; he shall, also, when required, fur- Furnish informnation in wrinish the Governor or either branch of the Legislature, in writing, ting. with any information relative to the duties of his office. Fifth, He shall, when required by any person or persons so to do,shd resolutions. make out a copy of any law, resolution, deed, bond, record, document or paper, deposited or kept in his office, and shall attach thereto his certificate, under the great seal of the State, Such copies so and such copy, thus certified, shall, in all cases, be evidence, certified shallb evidence. equally and in like manner as the original; and he shall receive therefor, per folio, ten cents, and, for certificate and seal, fifty Fees. cents. Sixth, He shall be charged with the safe keeping of all Charged with the safe keeping enrolled laws and resolutions, and he shall not permit the same, of enrolled bils. or any of them, to be taken out of his office or inspected, unless by order of the Governor, or by resolution of one or both houses of the Legislature, under a penalty of one hundred dol- Penalty of one a hundrcd dollars. lars. Seventh, He shall deposit in the office of the treasurer, What he shall deposit in the authenticated copies of all laws authorizing the payment Oftreasurer'soffice money out of the State treasury, immediately after the passage of the same. Eighth, He shall keep his office open during busi- When he hall ness hours, at all times, Sundays excepted. open. SEC. 13. All deeds, conveyances, leases, bonds, mortgages, w hbat shallbe, and other securities for money, belonging to this State, shall, kett i the secretary's office. unless otherwise specifically directed, be deposited and preserved in the office of the Secretary of State, and open to public inspection. SEC. 14. The Secretary of State shall have power to appoint Shall have powa clerk, and require from him such bond as he shall deem eorkoPPaint proper, and for whose acts the Secretary shall be responsible. SEC. 15. The chief clerks of the Senate and House of Rep- Thechief clerk shall deposit all resentatives, at the close of each session of the Legislature, bodoksin the sec. 53- ~retary' office. 53 830 STATE OFFICERS. [CH. 187. shall deposit, for safe keeping, in the office of the Secretary of State, all books, bills, documents and papers, in the possession of the Legislature, correctly labeled, folded and classified. Enrolled laws SEC. 16. It shall be the duty of the Secretary of State to bound and labelled. cause the original enrolled laws and joint resolutions, passed at each session of the Legislature, together with the index containing the titles of the same, to be bound in a volume, in a substantial manner, and in the order in which they are approved; and no other or further record of the official acts of the Legislature, so far as relates to acts and joint resolutions, shall be required of said Secretary; and he shall, also, cause the title thereof, with the session at which the same shall have been passed, to be written or printed on the back of such volume. S;hall certify to SEC. 17. The Secretary of State shall make his certificate, the printer that the acts are true that the acts and resolutions furnished to the printer are truly copies. copied from the original enrolled laws, and cause the certificate to be printed at the end of each volume of laws published, which shall be prima facia evidence of their correctness. shall cause the SEC. 18. He shall cause the acts of the Congress of the acts of Congress to be deposited United States and of the several States which may be received in library. at his office, to be deposited in the State library. a descriptlon of SEC. 19. The description, in writing, of the great seal of State seal shall be deposited in this State, shall be deposited and recorded in the Secretary's library. office, and shall remain a public record. The secretary SEC. 20. It shall be the duty of the Secretary of State to shall furnish books, fuel, procure the necessary furniture, presses, for the safe deposit of the archives of his office, and the necessary books, stationary and fuel for use in the offices of the several executive officers of the State, and he shall purchase all articles necessary for the use of the members and officers of the Legislature, which he shall charge to the State, in his own name, taking, in all cases a receipt from the persons from whom the same shall be purShall procure chased, Heshall, also, see that suitable halls are provided for halls, &c., for the legislature. the use of the Legislature, and all expenditures under this secThe governor tion shall be certified by the Governor, to the Auditor of State, the bills of the who shall issue his warrants on the Treasurer of State, for the secretary. amount of the same. Shall keep all SEC. 21. At the close of every session of the Legislature, desks, tables, chairsandfur- the Secretary of State shall cause all the tables, clhairs, desks.iture. and other furniture of the two houses of the Legislature, to be placed in secure rooms, and locked therein, and he shall not permit any part of said furniture to be used during the recess of the Legislature, for any purpose whatever. CH. 187 ] STATE OBFFICERS& 831 SEC. 22. The Secretary of State shall perform such other dua- Shall perform ties as are or may be imposed upon him by law. by law. AUDITOR OF STATE. SEc. 23. The Auditor shall, before entering upon the dis-The auditor shall take andk charge of his duties as such, take and subscribe the oath of sulscribe an oath. office prescribed by law, and shall enter into bonds to the State of Kansas, in the sum of ten thousand dollars, to be approved Bond ten thousby the Governor and Secretary of State, conditioned that he and dollars shall faithfully discharge all -the duties of the said office, which Bond and oath oath and bond shall be filed in the office of the Secretary of secretary's of-te State. fice. SEC. 24. The Auditor shall keep an official seal, which shall Shallkeepaeeal. be used to authenticate all writings, papers and documents required by law to be authenticated from his office, and copies of all papers, writings and documents, legally deposited in his oftice, which, when so certified and authenticated by the seal of his office, shall be received in evidence, in the same manner and with like effect as the originals. SEc. 25. It shall be the duty of the Auditor, at all times, to Auditor'sdutie. keep the accounts of the State with any State or Territory, and with the United States, and with the several counties of this State; with all public officers, corporations and individuals having accounts with this State. He shall audit all accounts of public officers who are to be paid out of the State treasury, of the members of the Legislature, and all persons authorized to receive money out of the treasury, by virtue of any appropriation made by law, particularly authorizing such account. The compensation due the members and officers of the Senate, wXho shall certi fy to accounts, shall be certified by the Secretary thereof, with the exception of his own compensation, which shall be certified by the President of the Senate; and the compensation that may be due to the officers and members of the H-ouse of Representatives, shall be: certified by the chief clerk thereof, and that of the clerk by the speaker; which said certificate, when made out as aforesaid, shall be sufficient evidence to the Auditor of such persons' claims, respectively, who shall issue his warrant on the treasury shall issue his for the amount to which such persons shall be entitled. SEC. 26. On ascertaining the amount due any person from Shall keep a record of all warthe treasury, the Auditor shall issue his warrant on the treasury rants, and r,for the sum due. HIe shall keep a fair record of all warrants by him drawn, numbering the same in a book, to be by-him kept tor that purpose. 832 STATE OFfICERS'. [cH. 187T, Shall personally SEC. 27.a The Auditor shall, in all cases, personally sign all sign all war- I ceipts.and re warrants for money upon the treasury of the State, all tax re — ceipts, and all other papers proper and necessary for the Auditor to sign. Warrants shall SEC. 28. In all cases where warrants for money are is-sued be first countersigned by the by the Auditor, upon the Treasurer, the said warrants, before treasurer. they are delivered to the person or persons for whose benefit the same are drawn, shall be presented, by the Auditor to theTreasurer, who shall personally countersign the same, and shall Warrants to be also enter into, a book, to be by him kept for that purpose, the entered in a book. date, amount, and the name of the person or persons to: whom, the same are made payable. Shall keepa list SEC. 29. The said Auditor shall make a fair list of all acof all accounts. counts by him audited, in a book, to be by him kept for thatpurpose, as also an account of all taxes or other moneys which may be due by any person to this State, or which may be paid. into the treasury. He shall make out and present to the Governor, at least ten days before the commencement of each regu-. Shall make are- lar session of the Legislature, a report, showing the amount port to the governor. of warrants by him drawn on the. treasury, stating particularly on what account said warrants were drawn; and, if drawn upon the contingent fund, to whom and for what purpose they were Shall report the issued. He shall, also, report the amount of money received amount of mon-, tn e ey in the treas- into the treasury, stating particularly the source of revenue ury, and how derived. from which the same may be derived. He shall, also, suggest Shall suggest plans for the improvement and management of the public plans to improve revenues. revenues. Shall prepare SEC. 30. The Auditor of State shall, from time to time, preforms and transmit them to pare and transmit to the county commissioners of each county, county officers. such general forms and instructions in conformity with the laws: in force, as, in his opinion, may be necessary to secure uniformity in assessing, charging, collecting, and accounting for the public revenues; and the county commissioners, assessors and treasurers shall pursue and observe such forms and instructions. What shall be SEC. 31. When the Auditor shall have made out abstracts of necessary for the commencement all sums due in the respective counties, and sent them to the of an action. different treasurers or collectors, he shall make out, in a book to be kept for that purpose, a fair account against each collector, a certified copy of which, with the seal of his office thereto attached, shall be sufficient for the Attorney General or District Attorney to proceed, by motion or action, against OCaH. 187.] STATE OFFICERS. 833 such delinquent collectors and their securities, before the Supreme or District Court. All quietuses necessary to beAll quietuses granted shall issue by the Auditor, under his hand and seal ofby auditor under ffice. SEC. 32. If any Auditor's warrant shall be lost, mislaid or If a warrant be lost, how duplidestroyed so that the- same cannot be presented for payment by cate be procurthe person entitled thereto, it shall be lawful for the Auditor, at any time before the warrant shall be paid at the treasury, to issue a duplicate warrant to the person or persons having so lost any warrant as aforesaid, on such person filing with the Auditor an affidavit, in writing, sworn before some person duly authorized to administer oaths, stating the loss or destruction of any such warrant;.and the Auditor shall immediately certify the same to the Treasurer, who shall thereby be authorized to pay any such duplicate warrant; Provided, If any such warrant shall be, at the time of such loss or destruction, which fact shall be ascertained by the oath iof the party making such application, or otherwise, negotiable, then, before such certificate Security shl1, - atS be given. shall be given by the Auditor, such person shall give him satisfactory security for the refunding of the amount, together with all costs and charges, should the State be afterwards compelled to pay the original warrant. SEC. 33. It shall be the duty of the Auditor to annually re- The auditor shall annually port to the Legislature, a detailed estimate of the expenditures report to the'legislature. to be defrayed from the treasury for the ensuing year, specifying therein each object of expenditure, and distinguishing between such as are provided for by permanent or temporary appropriations, and such as are required to be provided by law, and showing the means from which such expenditures are to be defrayed. SEC. 34. The Auditor shall, on the fourth Mondays of June Auditor shall examine the and December in each year, examine the books and accounts books of the treaurer. of the treasurer, and the moneys on hand in the treasury, and, immediately thereupon, report the result of such examination, in writing, to the Governor, specifying therein the amount, and kinds of funds, particularly; he shall, also, discharge suchDischaDrgeothei duties. other duties as may be prescribed by law. THE AUDITOR AS LIBRARIAN. SEC. 35. The books, pamphlets, maps and charts belonging What shall conmto the State, now in the State library, or which shall hereafter ibreo the State be added to the same, shall compose the State library, and be 834 STABT OFFICERa. [CO. 18T The auditor to kept in the office of the auditor of State, who shall be ex-off be librarian. f cio librarian. Regulations of SEC. 36. Books may be taken from the State library by the, the State librarye. members of the Legislature and its officers, during the session of the Legislature, and by the officers of the executive department of the State, justices of the supreme court and-judges of the district courts; Prouided, That no person shall be permitted to take or detain from the library more than two miseellaneous works at any one time, or take the same away from the capital. Librarian's dua SEC. 37. The librarian shall cause to be kept, a register of ties. all books issued and returned, at the time they shall be so issued and returned, and none of the books, except the laws, journals and reports of this State, which may be taken from the library, shall be detained more than two weeks; and all the books taken out by officers or members of the Legislature, shall be returned at the close of the session. If books are in- SEC. 38.: If any person injure or fail to return any book jurod, how repaetio to be taken from the library, he shall forfeit and pay to the librarian, for the use of the library, double the value thereof; or of the set to which it belongs; andc, before the auditor shall issue his warrant in favor of any person authorized to take books from the library, for the value of his services or amount of his salary, he shall be satisfied that such person has returned all books taken from the library or settled for the same,I others wise he shall deduct all accounts for the detention or injury of such books. Report to the SEC. 39. The librarian shallS at least ten days before the governor ten days before the annual session of the Legislature, report to the governor the legislature. condition of the library, stating the number of volumes contained therein, the number of volumes purchased during the past year, and the cost thereof, the number of volumes received by donation, the number of volumes injured or not returned, if any, and the amount received in compensation therefor, and such suggestions and further information as may be deemed by him desirable. Two hundred SEC. 40. Two hundred dollars shall be annually appropridollars shall annually beappro- ated for the use of the library, which amount, together with priated to use Of library. the amount received from fines and forfeitures, shall be annuGovernor, secre-ally expended in the purchase of additional books, under the tary of State and auditor shall bedirection of a board of trustees, to consist of the governor, a board to replenish the li- secretary of State and librarian, The said board of trustees brary. CH. 187.] STATE OFFICERS. 835 shall have power to make such rules, not inconsistent with this act, for the regulation of the library as they may deem Meny pesPibe proper, and may prescribe penalties for any violations thereof, lations. which shall be collected -in the same manner as for the non return or injury of any book. SEC. 41. It shall be the duty of the librarian to make t a Make ou t aa mk~ ot catalogue of books. written catalogue, conveniently arranged, in alphabetical order, of all books, maps and pamphlets in the library, adding thereto as the library is increased, which shall be kept for the use of those authorized to withdraw books. He shall, also, make out and post, in some conspicuous place, a statement of the rules and regulations of the library. ATTORNEY GENERAL. SEc. 42. The attorney general, before he enters upon the The attorney general, before duties of his office, shall take and subscribe the oath required entering upon the duties of his by law, and shall execute, to the State of Kansas, a bond, office, shall take an oath. with not less than two sureties, in the sum of five thousand dollars, to be approved by the governor, conditioned for the fkithful performance of his duties as attorney general, which bond and oath shall be filed in the office of the secretary of Oath and bond to be filed with State. secretary.] SEC. 43. The attorney general shall appear for the State, Duties of attorI y genera e; ney general. and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the State shall be interested or a party, and shall, also, when required by the governor or either branch of the Legislature, appear for this State and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this State may be a party or interested. SEC. 44. It shall be the duty of the attorney general, at the Prosecute any official bond request of the governor, secretary of State, auditor, treasurer when required. or superintendent of public instruction, to prosecute any official bond, or any contract in which the State is interested, deposited with either of them, upon a breach thereof, and to prosecute or defend for the State, all actions, civil or criminal, relating to any matter connected with either of their departments. SEC. 45. The attorney general shall consult with and ad- Consult and advise with county vise district or county attorneys, when requested by them, in attorney. all matters pertaining to the duties of their office. He shall, also, when required, give his opinion, in writing, without 836 STATE OFFICERS. [COn. 187. Gitvohouts feon fee, upon all questions of law submitted to him by the Legislature, or either branch thereof, or by the governor, secretary of State, auditor, treasurer or superintendent of public instruction. Prepare proper SEC. 46. Whenever requested by the secretary of State, drafts. auditor, treasurer or superintendent of public instruction, he shall prepare proper drafts for contracts, forms or other writings, which may be wanted for the use of the State, and he shall report to the Legislature, or either branch thereof, whenever requested, upon any business pertaining to the duties of his office. Pay allmoneys SEC. 47. All moneys received by the attorney general, bereceived. longing to this State, shall, immediately upon the receipt thereof, be paid by him into the State treasury. Keep a record of SEC. 48. The attorney general shall keep, in proper books, eli actions. to be provided for that purpose, at the expense of the State, a register of all actions and demands, prosecuted or defended by him in the behalf of the State, and all proceedings had in Deliver same to relation thereto, and shall deliver the same to his successor in office. When the attor- SEC. 49. When the attorney general shall be interested in ney general is intereted in any any cause or proceeding, civil or criminal, which it is or shall cause, the governorintshall ap be made his duty to prosecute or defend, the court in which such cause is pending or to be brought, may appoint some competent person to prosecute or defend such cause; and, in When sick or all cases when the attorney general shall be absent or sick, absent, a suitable person shall be appointed in and unable to attend to the discharge of his duties, the court place. in which any of his duties are required to be performed, may appoint some competent person to discharge such duties until the attorney general shall appear and resume the discharge of his duties; and the person so appointed shall possess the same power in relation to such causes and the business in such Substitute shall court, and shall be entitled to the same fees therefor as would have the same I fees. have been allowed the attorney general for such service. Perform what SEC. 50. The attorney general shall perform such other dudnties. ties as may be required of him by law. MISCELLANEOUS. Officers of the SEc. 51. It shall be the duty of the officers of the executive executive department shall department of the State, in their annual reports, to mention mention in their reports all appa-all the apparent defects, inconsistencies, omissions, unequal or rent defects.laws which they sall have everall discovered, oppressive laws which they shall have severally discovered, CH. 188.] STATUTES. 837 for the purpose of enabling the Legislature to make such amendments as will tend to perfect the code of the State. SEC. 52. They shall deliver over to their successors in Deliveroverall books, papers, office, or to any other person authorized by law to receive the documents, &c. same, all moneys, books, records, deeds, bonds, documents, maps, papers and other articles and effects belonging or appertaining to their respective offices. SEC. 53. The salaries of all State officers shall be paidSalaries, when paid, quarterly. SEc. 54. If any State officer shall neglect or refuse to take Ifanyofficer re. fuses to qualify. and subscribe the oath of office, or enter into bonds as required by law, within twenty days after the term of office for which he was elected shall have commenced, the office shall be deemed vacant. SEc. 55. The present executive officers of the State shall, When present State officers within twenty days after the passage of this act, take and sub-. shall qualify. scribe the oath of office prescribed by law, and execute, to the State of Kansas, bonds, as herein provided, for the respective offices: and a failure to comply with the provisions of this section shall work a forfeiture of office; Provided, This section shall not apply to executive officers who have already filed their bond according to law. SEC. 56. All acts and parts of acts inconsistent with this Acts inconsis tent with this act are hereby repealed. act repealed. SEC. 57. This act shall take effect and be in force from Takeeffect and after its publication. when. Approved June 3, 1861. CHAPTER CLXXXVIII. (Chapter CXx, Acts of 1859.) AN ACT Concerning the Construction of Statutes. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. In the construction of tire statues of this Territory the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute: First, The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which ac 838 STATUTES. [CH. 188. crued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed: Second, Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed:Number. according to such peculiar and appropriate meaning: Third, Words importing the singular number only may be extended to several persons or things, and words importing the plural Gender. number only may be applied to one person or thing, and words importing the masculine gender only may be extended Joint authority to females: Fourth, Words giving a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority: Fifth, The R oad, &o words " highway " and'broad " include public bridges, and may be held equivalent to the words " county way," "1 county road,"' "common road " and " Territorial road:" Sixth, The:nsane persons. words "insane persons" include idiots, non-comrpos mentis, IRsle. lunatics and distracted persons: Seventh, The word " issue," as applied to the descent of estates, includes all the lawful Real estate, &c. lineal descendants of the ancestor: Eighth, The word'I land and the phrases'"real estate" and "real property," include lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal: Ninth, The 1Personal prop- words "personal property" include money, goods, chattels, erty. evidences of debt, and 6' things in action:" Tenth, The word Property. "'property " includes personal and real property: Eleventh, Month, year, The word " month2" means a calender month, unless otherA. D. wise expressed, and the word "year " alone, and also the abbreviation " A. D.," is equivalent to the expression "' year of Oath and affir- our Lord:" Twelfth, The word " oath " includes " affirmation " natrion. in all cases where an affirmation may be substituted for an oath, and, in like cases, the word "swear " includes the word Per oo.; "affirm:'7 Thirteenth, The word " person " may be extended Seal. to bodies politic and corporate: Fourteenth, Where the seal of a court or public office or officer may be required by law to be affixed to any paper, the word " seal," shall include an impression of such seal upon the paper alone as well as upon State. wax or a wafer affixed thereto: Fifteenth, The word " State,' when applied to the different parts of the United States, includes the District of Columbia and the Territories, and the CH. 189.] STOCK, PROTECTION OF 839 words "CUnited States " may include the said District and Territories: Sixteenth, The word " town " may mean a civil Town. township, unless a different meaning is plainly intended: Seventeenth, The word " will " includes codicils: Eighteenth, will. The words'6 written 9 and " in writing " may include print- In writing. ing, engraving, lithography and any other mode of representing words and letters, excepting those cases where the written signature or the mark of any person is required by law: Nineteenths The term. " sheriff" may be extended to any per- Sheriff. son performing the duties of the shcriff, either generally or in special cases: Twentieth, The word "' deed " is applied to an Deed. instrument conveying lands, but does not imply a sealed instrument, and the words " bond " and "' indenture" do not Bond. Indenture. necessarily imply a seal, but, in other respects, mean the same kind of instruments as heretofore, and the word "'underta- Undertaking. king " means a promise or security in any form where required by law: Twenty-first, The term " executor " includes Executors. an administrator where the subject matter applies to an administrator: Twenty-second, The Roman numerals and Arabic figures are to be taken as a part of the English language. SEC. 2. This act to take effect and be in force fiom and after the first day of June next. Approved February 11, 1859. CHAPTER CLXXXIX. (Chapter LXXXII. Laws of 1861.) AN ACT to provide for the Protection of Stock from Contagious Diseases. Be it enacted by the Legislature of the State of Kansas: SECTION 1. Every person shall so restrain his diseased orEeryperson shall restrain distemnpered cattle, or such as are under his care, that they may hli diseasee not go at large, and no person or persons shall drive any diseased or distempered cattle, affected with any contagious or infectious disease, into or through this State, or from one point thereof to another. Any person or persons offending against this section, shall, on conviction thereof before any justice of the peace, forfeit not less than five nor more than twenty-five dollars for every head of such cattle, and be liable for all costs shall pay danmancd damages. ages. 840 STOCK, PROTECTION OF [CH. 189. Jstice shall or- SEC. 2. Any justice of the peace, upon proof before him that impound cattle any cattle are going at large, or are driven -in or through his at large. o county, in violation of the preceding section, shall order a constable to impound them, and the owner thereof shall be held liable for all costs and damages. ornsitable feesg SEC. 3. The constable who may execute the order of any cattBle,. justice of the peace as aforesaid, to impound any such cattle, shall have twenty-five cents per head for the first fifty and five cents for each additional head, to be paid by the defendant, upon conviction thereof; but, in case the defendant be discharged, then said costs to be paid by the county; and, if any officer to whom any order under this law is directed, should fail A failure to ex- to execute it, he shall forfeit, in case of a failure, a sum not less ecute shall pay a forfeiture of one than one hundred dollars. hundred dollars. No cattle from SEC. 4. No person or persons shall be allowed to drive or south shall come into Kansas be- cause to be driven, into or through the, State of Kansas, any tween April and November. drove or droves of cattle from the States of Texas, Arkansas or the Indian territory lying south of the State of Kansas, between the first day of April and November of each year; and any person or persons violating the provisions of this section, Offenders shall shall, for the first offence, be fined in any sum not less than pay seventy-five dollars. seventy-five dollars, and, for every subsequent offence, in any sum not less than ninety dollars; continuing to drive said cattle through the State shall be deemed a subsequent offence. Dutyof justices SEC. 5. Any justice of the peace, upon an affidavit being when notified. filed before him, that any person or persons have driven or caused to be driven any cattle from the States of Texas, Arkansas or the Indian Territory, into his township or county, in violation of the preceding section, shall forthwith issue a warrant for the arrest of the offender, which warrant shall be executed by the sheriff of the county, or by any constable thereof, or by some competent person, specially deputed by the justice for that purpose. When any person shall be brought before a justice of the peace under the provisions of this act, it shall be the duty of the justice to hear and determine, in a summary manner, the complaint alleged against the defendant; and, if said person or persons, so arraigned, shall be found guilty of violating the provisions of this act, it shall be the duty of the justice to issue an order to the sheriff or constable of the May order said county, directing him to drive said cattle out of the State, over cattle driven out the State. and on the same route whence they came in, and the said sheriff or constable is hereby empowered to drive said cattle in or CmI. 190.] STOCK, HORSES, ETC. 841 through any county through which said cattle may have been driven on their way into this State. SEc. 6. It shall not be lawful for any person to use, let, sell Olandered a nior permit to run at large, any horse, mule or ass, diseased with run at large. glanders. Any person violating the provisions of this section shall pay a fine not less than five nor more than fifty dollars, and shall be liable for all damages. SEC. 7. All fines and forfeitures incurred under the provi- Allfinesshllabe paid into school sions of this act, shall be recovered by action before any justice fund. of the peace, and all such fines shall be paid into the school'fund in and for the county having jurisdiction of the case. SEC. 8. In all cases of conviction under the provisions of this Judgment, how entered. act, the justice shall enter judgment for the fine and costs against the defendant, and may commit him until the judgment is satisfied, or issue execution on the judgment for the use of common schools of the county. SEC. 9. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. SEC. 10. This act shall take effect and be in force from and after its publication. Approved May 1, 1861. CHAPTER CXC. (Chap. CI. Acts of 1558.) AN ACT for the Protection of Property in Horses and other Animals. WHEREAS, The United States Government, annually, sells large numbers of diseased horses and other animals, which are bought and scattered over the country, thus spreading the disease, thereby doing great damage; therefore, Be it enacted by the Governor and Leg'islative Assembl"y of the Territory of Kansas. SECTION 1. When any diseased animal shall be found, hitched Diseased animals killed, or loose, off the Government Reservation, they [it] may bewhen. taken before a justice of the peace; and after the owner, if found, has had notice, as in civil suits, the horse or other diseased animal shall be killed, if, upon said trial, it is found that the animal is so diseased as to endanger the health of other animals. SEC. 2. That the expense of the trial and killing of saidExpense oftrial paid by whom. 842 STOCK, HORSES AND MULES. [CH. 191. animal shall be paid by the owner if known; if unknown, then by the county in which said trial was had. If, upon trial, it shall appear that said killing is not necessary, then the cost to be paid by the informant. Who can pros- SEC, 3. That any inhabitant of the county where the diseased ~cute.animal is found may give the information and appear as prosecutor, and either party may have an appeal, as in other cases; May appeal. but, before the owner of the animal can appeal, he must give a bond, in a sum not less than five hundred dollars, conditioned that he will keep the diseased animal where no other animal can If owner appeals come near it, and he shall be liable on his bond for a failure to he shall give bond. comply; and any one injured may sue, or the county may prosAct applies to ecute on the bond. This act is intended to apply to farcin and what animals. glandered animals. SEC. 4. This act to take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER CXCI. (Chapter XXXVII. Acts of 1860.) AN ACT respecting Horses and Mules. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Penalty for al- SECTION 1. If any seed horse, mule or jackass, over the age lowing seed horses, mules, of two years, be permitted to run at large, the owner shall be &c., to run at large. notified of such horse, mule or jackass, and if said owner fail or refuse to take such horse, mule or jack, and confine the same, he shall be fined for the first offence five dollars, and for every subsequent offence, not exceeding ten dollars, to be recovered by action of debt, before a justice of the peace in and for said county, to be recovered by any person who will prosecute for the same, which fines shall be paid into the common school fund in and for the township in which said suit is prosecuted. Escapilg by SEC. 2. If any stallion or jack which is kept for the purpose neglect. of breeding, should escape from the owner by his neglect, and the same shall be taken up, the owner thereof shall be bound for all damages sustained by any person or persons, and shall Penalty. be fined for the first offence five dollars, and for every subsequent offence ten dollars, to be collected and applied as specified in section first. MCh. 192.] STOCK, SWINE. 843 SEC. 3. If any stallion or jack or mule, not used for breed- May be taipen up ing, over the age of two years, shall be found running at large, and any person shall have taken up the same, such person so doing shall notify the owner in person, or, if not to be found, by leaving a written notice at his or her place of abode; and if he or she fail or neglect to take such property and confine the same, within three days after he or she have been notified, then the taker up of such property may be entitled to the privilege of castrating the animal, using the ordinary precaution for the preservation of the life of the animal, the animal to be retained possession of by the taker up until all charges are paid. SEC. 4. If any horse, mule or jack, not used for breeding, be Aniyal ma: be running at large and cannot be taken up, the owner, upon notice given him in person, and he refusing to take and confine the same, within six days after such notice, such animal maybe killed by the person giving notice, or by any person who may be liable to damage, such sums to be collected from the owner as will pay all damages. SEC. 5. If any horse, mule or jack, shall escape from his Iescape by acowner by accident, he shall be liable for all damage, but shall not be liable to be fined. This act to take effect and be in force from and after its x~ -L passage, and all acts and parts of acts conflicting with this act are hereby repealed. Approved February 9, 1858. CHAPTER CXCII. (Chapter CXII. Acts of 1860.) AN ACT to Provide for the Regulating of the Running at Large of Swine. Be it enacted by the Governor and Leyislative Assembly of the Territory of Kansas: SECTION 1. That all persons residing in the Territory ofPersons ownilg swine to keep Kansas, and owning or having charge of swine in said Terri- snmeconined. tory, from and after the first day of April, A. D. 1860, shall keep said swine from running at large. SEC. 2. That, if any swine shall be suffered to run at large owner liable bo, damazes by in said Territory, and shall trespass upon the land of any per- ew'Je. son or persons, the owner or person having possession of such 844 STOCK, SWINE. [COI-. 192. swine shall be liable for all damages the owner or occupant of such land may sustain by reason of such trespass. Recoverable w. SEC. 3. That such damages shall be recoverable in a civil action, before any justice of the peace of the proper township. Any person may SEC. 4. That, if any swine shall be found running at large take up swine at Large. in said Territory, after the first day of April, A. D. 1860, it shall be lawful for any person to take up such swine as estrays. To give what no- Sec. 5. That it shall be the duty of the person or persons tice of taking up taking up any swine, under the provisions of this act, within three days after such taking up, to post up at least three written or printed notices of the said taking up, with a description of such swine, so taken up, in three public places in the township in which said swine may have been taken up, and shall ile a copy. file a copy of said notice with one of the justices of the peace of the township, and shall certify, under oath, the same to be a true description of the swine taken up by him. Persons taking SEC.. That the person or persons taking up swine, under up allowed 25 cents per head, the provisions of this act, shall be allowed twenty-five cents for each swine, so taken up, and a reasonable compensation for taking care of the same. Owner may have SEC. 7. That, if any swine shall be taken up, under the samne within sixty days by provisions of this act, and the owner of the same shall, within sixty days of the said taking up, prove the same to be his, and shall pay the charges on the same, he shall have possession of the same. If owner does SEC. 8. That, if the owner of any swine, taken up under the not take swine and pay charges, provisions of this act, shall fail or refuse to prove the same-to title vests in taker up. be his, or shall refuse to pay the charges on the same, as provided in this act, within sixty days after the said swine shall have been taken up, complete title shall vest absolutely in the person or persons taking up the same. Drovers may SEC. 9. That nothing herein contained shall be so construed drive swine along highways, as to prevent drovers or other persons from driving swine being responsiblefordamages. from one place to another, along any public highway, the owner or owners, being responsible for all damages that any person or persons may sustain in consequence of the driving of such swine. Failure to com. SEC. 10. Any person taking up any swine under any provision of this act, and failing to comply therewith, shall be liable to the owner of such swine in a sum, to be recovered, in any court having jurisdiction over the same, for all dam Cu. 193-194.] STOCK, SWINE-STRAYS. 845 ages such owner or owners may sustain by reason of such taking up. SEC. 11. The provisions of this act shall not extend to [Amended, eh. Jefferson, Wyandott, Leavenworth, Atchison and Doniphan93] counties. SEC. 12. That an act entitled "' An Act to provide for theActs repealed. Regulating of the Running at Large of Swine," approved February 8, 1858, and all other acts or parts of acts conflicting with the provisions of this act are hereby repealed. SEC. 13. This act to take effect and be in force from and after the first day of April, 1860. Approved January 28, 1860. CHAPTER CXCIII. (Chapter CXIII, Acts 1860.) AN ACT Supplemental and Amendatory to ("An Act to Provide for the Running at Large of Swine," approved January the 28th, 1860. Be it enacted by the Governor and Legislative Assembly oJ the Territory of Kansas: SECTION 1. That so much of section eleventh of' said act as only part of Atchison county relates to the exemption of the county of Atchison from the exempted. [See ch. 192.] operation of said act, be so amended as only to apply to the townships of Shannon, Walnut and Mount Pleasant, in said county, and none other. SEC. 2. This act to be in force from and after its passage. Approved February 24, i860. CHAPTER CXCIV. (Chapter LXXXIII. Acts of 1861.) AN ACT to regulate the Taking Up and Posting of Strays. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That no person shall take up any unbroken [see ch. 192.] No person shall animal as a stray, between the first day of April and the first takenup any unday of November, unless the same be found within his lawful between lst of April and Ist of inclosure, nor shall any person, at any time, take up any stray, Nov1., nlen i unless it be found upon his premises; Provided, That any inclosure. stallion or jack, over two years old, or any bull over one year 54 846 STRAYS. [CH. 194. old, found running at large, at any season of the year, shall be considered strays, and may be taken up at any time or place. SEc. 2. That no person shall take up any horse, mule, ass, ox, sheep, or other animal, under the provisions of this act, unless he be a citizen and householder, and enters into bonds, with sufficient sureties, to the State of Kansas, for the use of the owner, in double the value of the property proposed to be taken up, to be ascertained by the justice before whom the person wishes to post such stray, which bond shall be filed and preserved by such justice. If persons fail to SEC. 3. That, if any animal liable to be taken up, shall come take up strays for more than upon the premises of any person, and the owner of such premten days. ises fails to take up such stray for more than ten days after being notified of the fact, any other citizen of the same county may proceed to take up such stray, and proceed with it as if taken up on his own premises. Shall immedi SEC. 4. That, if any person take up any stray, he shall strays. immediately advertise the same by posting up three printed or written notices, in as many public places in the township, which notices shall contain a full description of the stray. if stray not SEC. 5. That, if such stray be not claimed and proved at the claimed and proved within expiration of ten days after the same was taken up and adverten days, the taikeup to file tised, then the taker up shall go before a justice of the peace of the county, and file his- affidavit, stating that such stray was taken up on his premises, and that he did not drive or cause it to be driven there, or that it was taken upon the premises of some other person, naming him, and that he gave such person ten days notice, and that he has advertised such stray ten days, and that the marks or brands have not been altered since, to his knowledge. Justices shall SEC. 6. That the justice shall issue a summons to three dissummon three householders to interested householders to appear and appraise such stray, wpprise hich summons shall forthwith be served by the taker up of such stray, which service shall be without charge, if not demanded at the time of making the appraisement. Strays shall be SEC. 7. That the householders, or two of them, shall proceed aeppraisd. ~to describe and appraise such stray, stating the sex, size, color, age, marks and brands, and value of the same, which description and appraisement they shall reduce to writing, to which they shall append their affidavit, that the same is a true description, and a fair and impartial appraisement, which shall be filed by eCH. 194.] STRAYS 847 the justice, and recorded by him in a book, to be kept by himsRehOeds nall be for that purpose. SEC. 8. That the justice shall deliver, to such taker up, aDutyof justice. certified copy of the record upon his stray book, which he shall, within fifteen days after such appraisement, cause to be delivered to the county clerk. SEc. 9. That the county clerk, immediately after receiving Dutyofcounty the certified copy from the justice, shall record the same in a book, kept for that purpose. SEc. 10. That any person may use a stray, law-fully taken Strays to be carefully used. up by him, with care and moderation, if he does not injure or abuse it. SEc. 11. That the owner of any stray may, within twelve FHow and within what time ownmonths from the time of taking up, prove the same by evidence, ers shall prove before some justice of the peace of the county; and, if such justice is satisfied, from the evidence, that the stray belongs to the claimant, he shall, upon payment of all costs, order it to be delivered to the owner; and the justice shall certify to the county clerk that such stray has been proved, and restored to the proper owner within twenty days. SEc. 12. That the clerk shall make an entry of the fact Duty of clerk. stated in such certificate, in the margin of the county record, opposite the recorded certificate of the justice before whom such stray was appraised, which entry shall cancel all lien the county may have upon such stray. SEC. 13. That, if the owner and taker up cannot agree as Ifparties differ as to costs, how to the amount of costs, and expense of taking up, it shall be the matter shall be decided. decided, on application of either party, by the justice of the peace before whom the proof of ownership was made, who may compel the attendance of witnesses, if necessary, and, in making up his decision, he shall take into consideration whatever service the taker up may have had of such stray. SEc. 14. That, if the owner fails to comply with the provis- When the title shall vest in the ions of this act for twelve months after the time of taking up, taker up. and the taker up shall have proceeded according to law, a com — plete title to such stray shall vest in the taker up. SEC. 15. That, in all cases where the title to any stray shall When title vests in the taker up, vest in the taker up by lapse of time, the taker up shall pay heshall payinto the treasury. into the county treasury, after deducting all costs, one-half of the appraised value of such stray, to the use of the county school fund; and, in default of such payment, the county shall hold a lien on such stray, to secure the payment of such moiety Countymay hold a liet on sctray to the county. 848 STRAYS. Ecy. 194, remove from EC 16. That, if any person shall sell or dispose of any State. stray, or take the same out of this State, before the title shall have vested in him, he shall forfeit and pay to the county, ay be punished double the value of such stray, and may also be punished by fine, not exceeding twenty dollars, and imprisonment in the, county jail not to exceed thirty days. Nolperson shtall SEC. 17. That, if any person unlawfully takes up any stray unlawfully take y up any stray, and fails to comply with the provisions of this act, or uses or works such stray before advertising the same, or shall drive the same on his premises for the purpose of taking up the same, or shall keep the same out of the county more than five days at one time before he acquires a title to it, he shall forfeit to, the county not exceeding fifty dollars. Duty of county SEC. 18. The county commissioners of the several counties commissioners. of the State, at any regular session of their respective boards, shall examine the certificates or other records of strays filed in the offices of the county clerks; and if, upon such examination, they shall find, by lapse of time, that such strays shall have become the property of the taker up, the board shall issue their warrant, under the seal of the county, directed to, the sheriff, commanding him to collect the amount due the county, according to the provisions of section fifteen, from the goods and chattels, effects or credits, of every kind, of the taker up, without exemption; and, for the want thereof, to levy upon and sell the real estate, of any description, that may be liable to execution, belonging in any way to him, either in law or equity, in the manner provided by law for the levy and sale of real estate on execution; and such stray shall, in all -cases, be subject to the lien held by the county, as provided in section fifteen, and the county commissioners may order the sheriff to seize and sell the same. Justices of perace SEC. 19. Justices of the peace, in their respective counties, diction, shall have jurisdiction and take cognizance of all actions for the violation of this act, and enforce all the penalties and fines against persons who may be found guilty of such violation. Writ of replevin SEC. 20. That,: upon the affidavit of any citizen of the may issue against persons,county wherein such strays may be held or so taken up, being disposing of strays. filed with. any justice of the peace of the county, setting forth that any person [naming him] has disposed of any strays, or in any manner violated the provisions of this act, and describing the stray, in full, said justice shall issue his summons and writ of replevin, as is provided in civil cases, commanding ~Oi. 194.1] STRAYS 849 the officer to take the stray into his possession, and summons Personglwho the person who may have thus violated this act, to appear and these provisions answer, as is provided in cases of replevin. answer. SEC. 21. That, all trials before a justice of the peace, under Trials shall be this act, if demanded by the defendant, shall be by jury ofyjnyr six competent men, to be selected as in civil cases, who shall, if they find the defendant guilty, assess the fine to be paid by him, or the imprisonment to be inflicted, subject to an appeal, as in all civil cases. SEc. 22. That if, upon exalmination and hearing, it shall ap- If this act is vig elated the justice pear to said justice that this act has been violated, he shall as- shall asses fine. -sess the fine as herein provided, and shall order the officer to Stray delivered to any person deliver the stray to any person who will give good and suffi- who shall give cient bond to the county, to keep said stray until the expiration of the twelve months, at which time the title shall vest -n him, as it would have done in the taker up, and he shall be subject to the same liabilities and requirements of this act.'SEC. 23. That all fines collected under the provisions of this Fines paid to county for act, shall be paid into the county treasury, for the use of the schools. ~common school fund. SEC. 24.. That there shall be allowed for taking up strays, what allowed for taking up. the following rewards: For taking up every horse, mule or ass, fifty cents; for every head of neat cattle, twenty-five cents; for all other kinds of animals, fifteen cents per head. SEC. 25. That the county clerk shall receive, for recording Fees of county each certificate of strays, twenty-five cents, whether such cer- clerk tificate contains a greater or less number of animals. SEC. 26. The justice of the peace shall receive the sum Of Fees of justices,. twenty-five cents for recording each certificate of appraisement, whether such certificate contains a greater or less number of animals, and twenty-five cents for each certified copy,of the same, and, for other services, such fees as are allowed by law for similar services, except that in no case shall he re-,ceive milage. SEC. 27. That, if any stray, lawfully taken up, gets away or Taker up not li-?dies, without the fault of the taker up, he shall not be liable for the same. SEC. 28. That, if any county clerk or justice of the peace Penaltyif clerk...... j...or justice fails to fails to perform the duties enjoined upon him by this act, he perform his duty shall forfeit and pay to the county, not less than five nor more than fifty dollars, and pay to the party injured, not less than Eve nor more than one hundred dollars.. 850 or SUIITS-SURVEYORt [Crim 195-196~ hereby repealed. S. 29. That an act entitled "An Act to regulate the taking up an d posting of strays,"' approved February 2, 1859,. also, an act entitled "An Act concerning lost goods and estrays," approved Febraaly 11, 1859;, be and the same are hereby repealed. Take-effect when SEC. 30. This act shall take effect and be in fore from and( after its publication. Approved nay 23), 1861. CHAPTER CXCV. (Session. 1862.) AN ACT relating to Suits on Foreign Judgmernts. Be it enacted by the Legislature of the State of Kansas d. hIoreign judg- SECTION 1. That no juidgment for debt,. rendered in any ment not to be higher evidence other State or Territory against any person or persons resiof indebtedness. unless. dents of this State, shall be of any higher character as evidence of indebtedness, than the original elaim or demand upon which such judgment shall be rendered, unless such judgment shall be rendered upon personal service of summons against the defendant thereon, and upon a verdict of a jury finding the amount for which the same is entered up. SEC. 2. The same defense, to suits on the judgment mentioned in the preceding section; may be made by the judgmentz debtor which might have been set up in the original proceedings. SEC. 3. This act shall take effect and be in force from andc. after its publication. Approved 5March 4, 1862. OCHAPTER CXCVI(Session 1862.) AN ACT defining the Duties of County Surveyor. Be zi enacted by the Legislature of the State of Kansas o Term. SECTION 1. There shall be elected a county surveyor in each, organized county in this State, who shall hold his office for, the term of two years, and until his successor is elected and! CH. 196.] SURVEYOR. 851 qualified, and who shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation before the Shall take oath, clerk of the board of county commissioners, to be endorsed on the commission, that he will faithfully, impartially and to the best of his skill and ability discharge the duties of county surveyor, and he shall also execute to the board of county commissioners a bond in the penal sum of two thousand dol- Shallexecute lars, payable to said board of commissioners, with at least two such freehold securities as the clerk of said board may deem sufficient, for the use of all persons concerned to whom any damage may accrue through the negligence or misconduct of such surveyor or his deputy, conditioned for the true and Deputy. faithful performance of the several duties of county surveyor, performed by himself or deputy, as provided for by law, which bond, with a copy of his commission, said clerk shall file in his office. SEC. 2. That each county surveyor, after being duly quali- May appoint deputies. fled as provided in the foregoing section, may appoint such number of deputy surveyors under him as he may think proper, being responsible for the correctness of their official acts, which deputies shall, respectively, before they enter upon the duties of their office, take a similar oath or affirmation to Deputies shall that required of the county surveyor; and all official duties performed and surveys made by a deputy surveyor or shall be signed by him officially and countersigned by the county surveyor, and shall be as good and valid in law and equity in every respect as if the same had been done by the county surveyor. SEC. 3. That any person who may think himself injured Any person ag grieved by acts by the neglect or misconduct of any county surveyor, or any?f surveyor may institute sulit. of his deputies, may institute suit on any certified copy of the bond executed by any such county surveyor and his sureties, and in case the party for whose benefit such suit may be brought, shall obtain a judgment for any damage or loss by him sustained, lie may sue out an execution on said judgment, as in other cases, and the bond aforesaid shall not become void on the first or any subsequent recovery, but may be subject to be sued on in like manner by each and every person who may think himself aggrieved by a breach of the conditions of such bond. SEC. 4. That it shall be the duty of any party or parties arties having survey to make having a survey to make, in which another party or parties shall notifyuveyor. 852 SURVEYOR. [Cui. 196. are interested, to notify the county surveyor, who shall, on reHis duty there- ceipt of such notice, forthwith notify, by mail or otherwise, upon. such interested party or parties, or their agent or agents, when he shall make such survey, which shall be at least ten days from the date thereof, if the party or parties, or their agent or agents, are residents and thirty days if non-residents in the county in which the survey is to be made, and if it shall appear that said party or parties, or their agent or agents, have received such notice, they shall pay their proportionate part of the expenses of such survey to the party or parties authorizing it. When surveysto SEC. 5. That when any county surveyor or his deputy may be offered in evidence, duty of be called upon to make any survey or surveys, which is or are surveyor. to be offered in evidence in any court of law or equity, the adverse party having notice of the time of making such survey or surveys, such county surveyor or deputy is hereby authorized and required, upon application of either party, to administer an oath or affirmation to any witness who may be brought to prove any corner or line of such survey or surveys, or of any material or artificial object or mark which may be necessary to identify the same; which testimony shall be reduced to writing and subscribed by the witness or witnesses, and a return made thereof to the court with a return of the surveyor. Shall compare SEC. 6. That it shall be the duty of the county surveyor to the magnetic with the true compare the magnetic with the true meridian, at least four meridian at least four times a times a year, viz: between the first and fifteenth of January, year. April, July and October, and record the same in a suitable book provided for that purpose, and he shall, within ten days after the fourth examination of each year, transmit a copy of those examinations to the secretary of State and another to the President of the University of the State of Kansas. What books he SEC. 7. That the county surveyor shall keep three books of shall keep. record, as follows: One in which shall be recorded the annual variations of the magnetic needle, and shall be headed "Annual variations of the magnetic needle." The other shall contain the calculations by latitude and departure of all surveys made by the county surveyor or his deputies, and each calculation shall have a corresponding number with the plat and field notes to which it refers in the book of records. The record book shall be so constituted as to have the left page for diagrams and the right page for notes and remarks, and CH. 196.] SURVEYOR. 853 no diagram shall be constructed to scale less than one inch to twenty chains, and each diagram shall be numbered progressively, and the field notes of the surveys so recorded shall contain a full statement of such surveys, with the variations of the magnetic needle, length of lines, locations of all corners established or re-established, with the size and description of all corners, also description of all witness trees, with the size, distance and course, and all corners established or reestablished shall be of stone, when the same can be had, and when convenient the surveyor or his deputy shall, to every center corner so established, measure and mark four witness trees, and to every quarter section two witness trees, to be marked as near as practicable according to the requirements for United States surveys. SEC. 8. That all calculations to ascertain the contents of a Clculations to ascertain contract of land by the county surveyor or his deputy, or other tents. person or persons who may at any time be called upon by the court to execute a survey, shall be made by latitude and departure, and on each plat the county surveyor or his deputy, or the person or persons called on by the court as aforesaid, shall lay down the variations of the magnetic needle from the true meridian. SEC. 9. That the center corner of all sections in a congres- [See ch. 129J —.] How center corsional township, except those in the north and west tiers, nHers shallbees, shall be established by measuring the distance between thetabuishe. opposite quarter section corners of the section respectively, and at points on a right line and midway between the opposite quarter section corners respectively, the county surveyor or his deputy shall establish temporary corners; unless such Temporary corcorners should coincide, in which case the county surveyor or nr. his deputy shall permanently erect the center corner of the section; but in case the temporary corners do not coincide, the county surveyor or his deputy shall project right-angled off-set lines from the temporary corners previously established, at the point of intersection of' said off-set lines, permanently establish the center corner of sections. SEC. 10. That the county surveyor or his deputy shall per- Center cornels on north and manently establish the center corner of all sections in thewest tiers. north and west tiers of a congressional township, except those closing on a parallel or base line, at the intersection of two right lines, joining their opposite quarter section's corners respectively. 854 SURVEYOR. [CH. 196. SEC, 11. That in establishing the center corner of all sections closing on a parallel or base line, the county surveyor or his deputy shall commence at the quarter section corner on the south boundary of the section, and run a line north parallel to the east boundary of said section, and at forty chains from the quarter section corner on the south boundary, or place of commencement; said county surveyor or his deputy shall permanently establish the center corner of the section, and at the point where said north line produced intersects the parallel or base line, which must be just forty chains west of north-east corner of the section, said county surveyor or his deputy must permanently establish the quarter section corner on the north boundary of the section. SEC. 12. That in re-establishing missing corners, where no Learing or witness tree or trees can be found, the county surveyor or his deputy shall establish said missing corner in accordance with the government surveys.'ersols molest- SEC. 13. That if any county surveyor or his deputy shall ing or interferngwithssurvey-be molested, or prevented from doing or performing any of or in discharge hisdutiessub-his or their official duties, by means of threats or improper ject to prosecution by indict- interference of any person or persons, such surveyor shall call on the sheriff of the county, who shall accompany him and remove all force, and the person or persons thus threatening or improperly interfering with any county surveyor or his deputy, while performing his or their official duties, shall be Oh llobcotoen, subject to prosecution by indictment, and on conviction thereof, shall be fined in a sum not exceeding one hundred dollars, at the discretion of the court, and, moreover, be liable for all And beiablefor damages to any person sustained by the'hindrance of the surdamages, &ac. veyor or his deputy, and also for all the expenses that may accrue in consequence of the attendance of the sheriff. tAlliandssold for SEC. 14. That the county surveyor or his deputy shall taxes to be sur- I veyed. survey all lands, which have been or may hereafter be sold for taxes, which lie within his county, on the application of any person producing to him a certificate from the proper officer, according to law. No resurvey te.S SEC. 15. That no re-survey, made by any person except the tinmony, except, c ex. county surveyor or his deputy, shall be considered as legal testimony in any court of law or equity in this State, except such survey or surveys are made by mutual consent, reduced to writing, and signed by the parties. SEC. 16. That when it shall appear that the county sur Ci. 196.] SURVEYOR. 855 veyor is interested in any survey, the title of which is disputed When resurvey before the court, the court shall direct the re-survey to be othlerPerson made by some capable person, who is in nowise interested, surveyo~r who shall return the said re-survey to the court, on oath or affirmation. SEc. 17. That it shall be the duty of each county surveyor Surveyor to employ chainmnen. and deputy surveyor to employ disinterested persons to act as chainmen; and each chainman employed by the county surveyor or his deputy shall, before he commences the duty assigned him, take an oath or affirmation to faithfully and Chainmta to impartially perform the duties of chainman, which oath or affirmation the county surveyor or his deputy is hereby authorized and required to administer; and that the expense of the chain-carriers and corner-man shall be paid in advance, if required, [to] the county surveyor or his deputy, by the party on whose application the survey may be made, and the money so advanced shall be accounted for by the surveyor, and the amount expended to be taxed on the bill of costs: Provided, that there shall not be allowed to any chainman or marker a greater sum than one dollar for each day that he may becompensation of chainmen. actually employed: Provided, also, that each surveyor shall have the right to retain the return of any survey by him made until he shall be paid the fee established by law, and shall also have the right to collect such fees by suit, if the return of survey is not called for. SEc. 18. That if it shall be made to appear to the board ofIf county surveyor incapable, county commissioners that any county surveyor, for the time &c., board may being, is incapable of performing all and singular the duties aPProint succesenjoined on him by law, or that he has neglected or refused cy. to do and perform any official act he may be required to do, (unless prevented by unavoidable accident,) the county board of commissioners shall dismiss such county surveyor from office, and forthwith appoint a successor to fill such vacancy. SEc. 19. That any person wishing to have a county surveyor removed from office, shall file in the office of the clerk of the board of county commissioners of the proper county, at least thirty days before the sitting of said board, a petition, setting Petition for disYmissal. forth the cause of complaint; whether it relates to incapacity, misconduct in office, or neglect of duty; and the clerk shall forthwith make out a certified copy of such petition, and also Clerk shallmalke a summons directed to the sheriff, requesting him, within ten copy. days thereafter, to notify such surveyor (either by reading 856 SURVEYOR. [Cu. 196. such summons to him or leaving a certified copy at his office) to appear at the next session of the board of county commissioners, on the first day of the term, or as soon thereafter as the parties may be ready to hear such complaint, the answer thereto, proof in support thereof, and decree, as may seem just and proper. Judgment for SEC. 20. That the board of county commissioners before costs shall be renderedragainstwhom such complaint may be tried, shall render judgment'whom. for cost against such petitioner, if the respondent shall be acquitted, and against the respondent if he shall be found guilty. Surveyor may SEC. 21. That it shall and may be lawful for any surveyor, demand official books ofprede- who shall be elected under this act, to ask, demand, and recessor. ceive of his predecessor any book or books relating to said office, in which it is by law made the duty of such surveyor to record all surveys, and calculations of the contents of surveys, made by himself or deputies; and whenever said office shall become vacant, either by death, resignation, or otherwise, it shall be the duty of any person or persons, having the possession of suchi books and records, to hand the same over, on demand, to his successor in office. Surveyor may SEC. 22. That it shall and may be lawful for such surveyor, demand an order on the coun- or his legal representative, whose duty it is hereby made to ty treasury to pay for books, hand over the books and records, to ask, demand, and receive of the board of county commissioners of the proper county an order on the county treasury, for such sum as the commissioners shall believe to be the value of the books and records aforesaid in their blank state, which have been purchased by such surveyor at his own expense; which sum shall be paid to such surveyor, or his legal representative, out of the county Penaylty for re- treasury of such county; and if such surveyor, or his legal fusal to hand over books and representative, whose duty it is hereby made to hand over the records to successor. books and records aforesaid, shall neglect or refuse to do the same as required by this act, he shall, for every such offence, forfeit and pay a sum not exceeding five hundred dollars, to be recovered by action of debt, at the suit of his successor in office, before any court having jurisdiction thereof, which shall, when collected, be paid into the county treasury, to and for the use of the county. County survey- SECe 23. That it shall be the duty of the county surveyor or shall procure coptiesoaa of each organized county in the State to procure, as soon as notes and pl of eacby the surveyor eneral to surveyortgeneral practicable, copies, duly certified by the surveyor general to CH. 197.] TAXES. 857 be correct, of the field notes and plats of the original surveys, by the United States, of the lands of his county, and shall WhicIsnh bo'ok have said plats and field notes bound, each substantially in form. book-form, which shall be kept open, in the said county sur- And kept open to the public. veyor's office, for the benefit of the public. SEC. 24. That copies of said plats and field notes, duly certified by the county surveyor, shall be received in evidence, in any cause where the original plats and field notes could be used. SEC. 25. That the county surveyor may contract with the surveyor general for copies of such plats and field notes; and if such contract be approved by the board of county commissioners of his county, the county surveyor shall, upon receiving such copies, direct the county clerk to draw a warrant upon the treasurer of his county for the amount so agreed upon, and transmit it to the said surveyor general. SEC. 26. All acts and parts of acts inconsistent with this act are hereby repealed. SEc. 27. This act shall take effect and be in force from and after its publication. Approved March 6, 1862. CHIAPTER CXCVII. (Acts of 1860, Chapter CXIV.) AN ACT to provide for the Assessment and Collection of Taxes. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. All property, real and personal, all moneys, Propepty subject to taxation. credits, investments in bonds, stocks, joint stock companies, or otherwise, the property of corporations now existing or hereafter created, and the property of all banks or banking companies now existing or hereafter created, and of all bankers, shall be subject to taxation; and such property, moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise, or the value thereof, shall be entered on the list of taxable property, for that purpose, in the manner prescribed by law. SEC. 2. Real property shall, for the purpose of taxation, be meaningof terms. construed to include the lands only, excluding the crops and [Aened, oh 858 TAXES. [CH. 197. improvements thereon, except in cities and incorporated towns and villages, and all mines, minerals and quarries in and under the same; and the terms "land" and "real estate," when used in this chapter, shall be construed as having the same meaning as real property. Same. SEC. 3. The terms "personal property" and c" personal estate," as used in this chapter, shall have the same meaning and shall, for the purpose of taxation, be construed to include all goods and chattels and every tangible thing, being the subject of ownership, whether animate or inanimate; moneys and effects; all boats and vessels, whether at home or abroad, and all capital invested therein; all debts due or to become due from solvent debtors, whether on account, contract, note, mortgage or otherwise; all public stock, and stock or shares in all banks or incorporated companies, and such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate. Same. SEC. 4. The term "money" or "moneys," whenever used in this act, shall be held to mean and include gold and silver coin, and current bank notes, in actual possession, and every deposit which the person owing, holding in trust, or having the beneficial interest therein is entitled to withdraw, in money, on demand. Propertyexempt SEC. 5. The following property shall be exempt from taxfromn taxation. [Amended, ch. ation: First, All property, real and personal, of the United States and of this Territory. Second, All public or corporate property of the several counties, cities, villages, towns and school districts in this Territory, used or intended for corporate purposes, except land bid off for counties at tax sales. Third, The personal property of all literary, benevolent, charitable and scientific institutions incorporated within this Territory, and such real estate, belonging to such institutions, as shall be actually occupied by them for the purpose for which they were incorporated. Fourth, All houses of public worship, and the lots on which they are situated, and the pews or slips and furniture therein; every parsonage, all burying grounds, tombs and rights of burial; but any part of any building, being a house of public worship, which shall be occupied and used as a store or shop, or for any other purpose than for public worship or schools, shall be taxed upon the cash valuation thereof, the same as personal property, to the owner or occupant; and the taxes thereon shall be collected in the same manner as the taxes Cu. 197.] TAXES. 859 on personal estate. Fifth, All public libraries and the real and personal property belonging to or connected with the same. Sixth, The property of all widows, to the value of five hundred dollars. SEC. 6. Land contracts, to be sold by the Territory and not Tand contracts assessed to per. conveyed, shall be assessed to the person holding the contractson holding. or certificate of purchase for the same, or the occupant; but such land shall be assessed as personal property, and not as real estate; and the tax thereon shall be collected in the same manner prescribed for the collection of taxes upon personal property; but the land shall, in no case, be returned or sold for the non-payment of taxes, and the Territory shall, in no Not Conveed until tax paid. case, convey such lands until all the taxes upon the same shall be paid. SEC. 7. Every person of full age and sound mind, not a mar- Persons to list ried woman, shall list the real property of which he or she is property. owner, situated in the county in which he or she resides; the personal property of which he or she is owner, and for which he or she is liable to pay taxes according to this act; and all moneys in his or her possession, and all moneys invested, loaned or otherwise controlled by him or her, as the agent or attorney, or on account of any other person or persons, company or corporation whatever; and all moneys deposited, subject to his or her order, check or draft; and credits due from or owing by any person or persons or body corporate, whether in or out of such county, the property of every ward shall be listed Listed by whoi,' in case of disa.. by his or her guardian; of every minor child, idiot or lunatic, bility. having no other guardian, by his or her father, if living-if not, by his or her mother or the person having such property in charge; of every wife, by her husband, if of sound mind-if not, by herself; of every person for whose benefit property is held in trust, by the trustee; of every estate of a deceased person, by the executor or administrator; of corporations, whose assets are in the hands of receivers, by the receivers; of every company, firm, body politic or corporate, by the president or principal accounting officer, partner or agent thereof. SEC. 8. Every person liable to pay a tax according to this Persons to rsaks' out statement of act shall make out and deliver to the assessor, when required, a personal property whell re. statement, verified by oath or affirmation, of all the personal quired. property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, in his possession or under his control, at the time notice was given him, by the assessor, to 860 TAXES. 1[H. 197. make out such statement, and which, by the provisions of this act, he is required to list for taxation, either as owners or holders thereof, or as guardian, parent, husband, trustee, executor, administrator, receiver, accounting officer, partner or agent. May deduct SEC. 9. From the statement mentioned in the preceding secdebts. tion, the amount of all just debts due from such person or owing by him shall be deducted, and he shall only be liable for taxation on the balance, subject to the provisions of this act. if there be no SEC. 10. If there be no articles of personal property, moneys such property. or credits investments in bonds, stock, joint stock companies or otherwise, which such person would be, by this act, required to list, on his own account or the account of others, he may set forth such facts to the assessor, who shall require the oath or affirmation of such person to the truth of the same. 1roperty, how SEC. 11. Each parcel of real property, outside of any town, valued. [Amendeda, city or village, mentioned in section second, shall be valued at its true value in money, excluding the value of the crops growing thereon and improvements; but the price for which such real property would sell at auction or at a forced sale shall not be taken as a criterion of such value. Personal property of every description shall be valued at the usual selling price of similar property at the time and place of listing; and, if there be no usual price, then at the price that is believed could be obtained therefor in money. DUTIES OF ASSESSOR. Duties of assess. SEC. 12. Between the first day of May and the first day of [Amended, eh. August, in each year, the county assessor, in the several counties in this Territory shall ascertain, by diligent inquiry, the names of all taxable persons in his county, and, also, all their taxable personal property, owned on the first day of May, and all real estate therein, and shall assess and appraise the same as herein provided, and shall, for that purpose, require of every person liable to taxation, a statement, verified by his oath or affirmation, of all the personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, in his possession or under his control, on said first day of May. If anypersonre- SEC. 13. In case where any person shall refuse to make out fuse to make statement, &c. and deliver to the county assessor a statement of personal property liable to taxation, as provided by this act, or shall refuse to take and subscribe an oath or affirmation as to the truth of such statement or any part thereof; or, in case of sickness or CH. 197.] TAXES. 861 absence of such person, the assessor shall, in every such case, proceed to ascertain the number of each description of the several articles of personal property enumerated in the fifteenth section of this act, and the value thereof; the value of personal property subject to taxation, other than enumerated articles, and the value of moneys and credits, investments in bonds, stocks and joint companies or otherwise; and, to enable him so to do, he is hereby authorized and required to examine, on oath or affirmation, any person or persons whom he may suppose to have a knowledge of the articles or value of the same. SEC. 14. If the assessor shall be unable to obtain positive If unable to obtain items. evidence of the items and value of such personal property, moneys and credits, he shall assess and value such property from general reputation and such knowledge of facts and circumstances as he shall be able to obtain. SEC. 15. Such statement shall truly set forth: First, Thestatementof assessor set forth number of horses and the value thereof. Second, The number what.of neat cattle and the value thereof. Third, The number of mules and asses and the value thereof. Fourth, The number of sheep and the value thereof. Fifth, The number of hogs and the value thereof. Sixth, Every pleasure carriage, of whatsoever kind, and the value thereof. Seventh, The total value of all other articles of personal property which such person is, by this act, required to list: Provided, That, if such person shall Proviso. exhibit to the assessor the animals or other articles of personal property above enumerated, the value of such property may be determined by the assessor, without the oath of the person required to list such property. Eighth, Every gold and silver watch and the value thereof. Ninth, Every piano forte or other musical instrument and the value thereof. Tenth, The value of goods and merchandise which such person is required to list as a merchant. Eleventh, The value of property which such person is required to list as a banker, broker or stock jobber. Twelfth, The value of the materials and manufactured articles which such person is required to list as a manufacturer. Thirteenth, The value of moneys and credits required to be listed, including all book accounts. Fourteenth, The value of all moneys invested in banks, stocks, joint stock companies or otherwise, which such person is, by this act, required to list. SEc. 16. The assessor shall, upon demand, deliver to any Asessor to give copy to owner owner of property assessed for taxation, a copy of the assess- when demanded. ment thereof, signed by himself; and a copy of the certificate 55 862 TAXES. [Ci. 197. memblerftof ft. mentioned in the preceding section, when taken in the absence ily. of the person assessed, shall be left with some member of the family over twelve years of age. File certificate. SEC. 17. The assessor shall file and preserve such certificate for future reference, keeping those of each township separate, but shall enter the total valuation in his assessment roll. If false certi- SEC. 18. If any person shall deliver a false or fraudulent oate delivered. certificate to any assessor, the property therein specified and all that ought to have been listed therein shall be taxed triple, and the offender shall, also, be subject to indictment for the fraud, and may be fined in any sum not exceeding five hundred dollars nor less than fifty. SEC. 19. Repealed. Ch. 198-5. Olerk to furnish SEC. 20. The county clerk shall deliver to the assessor, on or papers to assessor. before the first day of May, in every year, the assessment roll lAmended, ch. 198-6.1 of the preceding year, the abstract of conveyances furnished by the register of the county, and the list of taxable lands, and take his receipt therefor; and the assessor, as soon as he shall have completed his assessment and made his assessment roll for the year, shall return the whole of such papers and documents to the clerk. Assessortomake SEc. 21. The assessor, on examination and comparison of tax roll. the list of property delivered by persons liable to taxation [with] the abstract of conveyances furnished by the register, shall make a correct list of all the taxable property in his county, to be called the tax roll. Style of same. SEC. 22. The tax roll shall contain the names, in alphabetical order, of all persons to whom property has been assessed therein. It shall be in tabular form, with a suitable caption, in separate columns, for the names of owners, the description of lands, denoting the section, town, range and other subdivisions, and the lot and block or street in any city, and the total value of personal property and total value of all property assessed to each person, and the whole amount chargeable to each person, and such other columns as may be found necessary and convenient. If any property SEC. 23. If, by any means, hereafter, any tract of land or msaitted. town lot shall be omitted in the assessment of any year or series of years, and not put upon the tax roll, the same, when discovered, shall be assessed by the assessor for the time being, and placed upon his tax roll, before the same is returned to the county clerk, with all arrearages of tax which ought to have been assessed and paid in former years, charged thereon. VC.. 197.] TAXES. 863 SEC. 24. The assessor shall make out and (return to the Assessor make return of roll,,county clerk, on or before the first day of August, -a true copy when. of his tax roll. BOARD OF EQUALIZATION. SEC. 25. The commissioners or a majority of them shall form Board of equaization shall county board for the equalization of the real property of their meet when aa do what. county. They shall meet on the third Tuesday of August, of each year, in the county clerk's office, and shall examine the assessment roll of the current year and equalize the valuation of the real estate, so that each tract or lot shall be entered on the tax roll at its true value; and shall make such changes in the valuation of personal property, as shall be right and Just; and, for this purpose, they shall observe the following rules: First, They shall raise the valuation of such tracts and lots of Rules to be observed. real property as, in their opinion, have been returned below their true value, to such price or sum as they may believe to be the true value thereof, agreeable to the rules prescribed by this act, for the valuation thereof. Second, They shall reduce the valuation of such tracts and lots as, in their opinion, have been returned above their true value, as compared with the average valuation of the real property of such county, having due regard to the relative situation, quality of soil, improvements on lots in towns, cities and villages, natural and artificial advantages possessed by each tract and lot. Third, They shall hot reduce the aggregate value of the real property of the county, as returned by the assessor, with the additions made thereto by the county clerk, as hereinbefore required[ The county clerk shall keep an accurate journal or record of the proceed-' ings and orders of said board. SEC. 26. The county clerk shall, immediately after the board County clerk to forward abstret4 shall have equalized and corrected the assessment roll, make an to auditor of Territory. abstract thereof, and forward such-abstract to the auditor of the Territory, before the first day of September. Such abstract shall contain: First, The total number of acres of taxable land in the county. Second, The aggregate value thereof. Third, The average value per acre. - Fourth, TThe number of..town lots and aggregate valuation thereof. Fifth,. The aggregate valuation of personal property. Sixth, The total valuation of all taxable property. SEC. 27. The county commissioners, at their meeting in commissiones October, in each year,, shall estimate and determine the amount ey to be raised. 864 TAXES. [mH. 197~. of money to be raised by tax for county purposes; also, the amount to be raised for the support of schools; also, all other' taxes which they may be required by law to levyo. Trusteesoftown- SEC. 28. The trustees of the several townships and such ships may determine rates. other officers and authorities as shall be legally empowered to determine the rates or amount of taxes to be levied for the various purposes authorized by law, shall determine the amount thereof annually, previous to the tenth day of September, and! make a return thereof to the county clerk, on or before the twentieth day of September. Council of mu- SEC. 29. That the council of any municipal corporation is. nicipal corporation to certify to hereby authorized and required to cause to be certified to the clerk of county per centage lev- county clerk, on or before the twentieth day of September, anied by them. nually, the per centag.e by them levied on the real and personal property in said corporation, as valued and returned on the asClerkplacesame sessment roll of the county; and the county clerk is hereby o" ta~ol-. authorized and required to place the same on the tax roll of' said county, in a separate column or columns; and said taxes: Collected by shall be collected by the county treasurer and; paid into the" vounty treasurer county [city] treasury of said corporation, with the same power and restrictions, and under regulations, in every respect, as are by law provided for the collection of other taxes: Provided,. Proviso. That nothing in this act shall be so construed as to prevent any city that may choose to do so, from levying and collecting such taxes as they may by ordinance provide; but such municipal corporation shall, in no case, sell lands for taxes; but such mu[Seech.46,art. nicipal corporation shall cause to be certified to the county 2,sec. 2.] clerk, a list of all the lands and town lots on which the taxes have not been paid, and the taxes thereon, before the first day of March, annually, which taxes, so certified, the county clerk shall place upon the tax roll of the county, in a separate column, and said taxes shall be collected in like manner as the other taxes on said tax roll. Nothing in this section shall be construed to exempt the property within the limits of any municipal corporation from being taxed for county and Territorial purposes, as other property outside thereof. Clerk to make SEC. 30. The county clerk shall make out, in a book to be' out list of taxable property. prepared for that purpose, a complete list or schedule of all the taxable property in his county, and the value thereof, as equalized, arranged in the following manner: Each separate tract of real property in each township of his county, other than town property, shall be contained in a line or lines opposite the names, Aid. 197.] TAXES. 865 of the owner or owners, which shall be arranged in alphabetical -order; each separate tract of real property in each town or city, shall be set down in a line or lines opposite the name or,names of the owner or owners, arranged in alphabetical order; the value of all personal property will be set down in a column ~opposite the name of the owner; the names of persons in each township, who are not residents of an incorporated town or ieity, shall be set down in alphabetical order, in one list; and the names of persons who are residents of an incorporated town or city shall be entered in another list, in alphabetical,order. SEC. 31. The county clerk, immediately after the October county clerk to determine ain't meeting of the county commissioners, shall proceed to deter- oftax to belevied on each permine the sums to be levied upon each tract or lot of real prop- son, company and corporation, verty and upon the amount of personal property, in the name of each person, company or corporation, which shall be assessed.equally on all real and personal property, subject to the same taxes, and set down each tax in a separate column; he shall complete the same, and attach his certificate thereto, and deliver it to the county treasurer between the first and tenth days of November, and shall charge the treasurer with the amount of the respective taxes assessed on the tax roll. SEC. 32. As soon as the treasurer shall have the tax roll ofTreasurertogive notice of amount his county, he shall cause notices to be posted up at each place oftcxon f$oo, and time of colof holding elections in the county; and, also, to be publishedlecting same. in some newspaper having general circulation in the county,'for four successive weeks, stating in said notices the amount of tax charged for Territorial, county, township, school, city or other purposes, on each hundred ddllars valuation; also, on what day the treasurer or his deputy shall attend at the usual place of holding elections in each township, for the purpose of receiving such taxes; and the treasurer or his deputy shall attend, on the day and at the place named in such notice. SEc. 33. When the treasurer shall receive any tax, he shall Givewhat receipt for taxes. give a receipt therefor; if upon land or a town lot, the re- [see ch. 53-1. ceipt shall describe the land as it is described in the tax roll; and, if upon personal property, it shall state the valuation thereof. SEC. 34. On all taxes remaining unpaid after the first day Ten per centun of January, there shall be a penalty of ten per centum added added, when. and collected, in like manner as other taxes. SEC. 35. All lands and town lots5 on which the taxes shall Subjectto ale, when. 8 66 TA~XES [aH. 19t not have been paid before the first day of March, in each year, shall be subject to sale, in the manner hereinafter provided. Treasurer to SiE. 36. The county treasurer shall, immediately after the make out list of delinquents and day specified in the preceding section, make out [a list] of all lands. the lands and town lots, describing such lands and town lots, as the same are described on the tax roll, with an accompanying notice, stating that so much of each tract of land or town lot, described in said list, as may be necessary for that purpose, will, on the first Tuesday of May next thereafter and the next succeeding days, be sold by him-, at public auction, at some public place, naming the same, at the seat of justice of the county, for the taxes-, penalty and charges thereon. Published and SEC. 37. The county treasurer shall cause the said list and pbsted. accompanying notice to be published in some newspaper of general circulation in his county, once in each week, for four successive weeks prior to the day of sale, and shall, also, cause to be posted up copies of said list and notice in at least four public places in his county, and one in some conspicuous place in his office. Printer make SEC. 38. Every printer who shall publish such list and no.affidavit of pubication, when. tice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county, an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such publication who shall fail to transmit such affidavit within six Treasurer same days after the publication thereof. The county treasurer shall, ofposting. also, make or cause to be made an affidavit or affidavits of the posting of such. ist and notice as above required, all of which To be filed. affidavits shall be carefully preserved by him and deposited as hereinafter specified. Commence sale SEC. 39. On the day designated in the notice of sale, the w hen, and continue how long, county treasurer shall commence the sale of those lands and town lots on which the taxes, penalty and charges have not been paid, and shall continue the same from day to day, (Sundays excepted,) until so much of each parcel thereof shall be sold, as shall be sufficient to pay the taxes, penalty and charges thereon, including the cost of advertising and the fees for selling. Didder off of SEC. 40. The person, at such sale, offering to pay the taxes, smallest quantitypurchaser, penalty, and charges against any one person or firm, in any county, for the smallest quantity of land, in a square, off [from] the north-east corner of the tract of land situate farthest north CH. 197.] TAXES. 867 east in such county, belonging to the person or firm against whom said tax is or shall be chargeable, shall be the purchaser of such quantity, located as aforesaid. SEC. 41. The county treasurer may, in his discretion, require Treasurer may require immediimmediate payment of every person to whom any such parcel ate payment. of land shall be sold, and, in all cases where payment is not made in twenty-four hours after the bid, he may declare such bid cancelled, and sell the land again, or may sue the purchaser for the purchase money, and recover the same, with costs and ten per centum damages; and any person neglecting or refusing to make such payment shall not be entitled, after such neglect, to have any bid made by him received by the treasurer, during the sale. SEC. 42. If any parcel of land cannot be sold for the amount If land cannot be sold, bid off of tax, penalty and charges thereon, it shall be bid off by the byutreasurer for county treasurer, for the county, for such amount. SEC. 43. The county treasurer shall give to each purchaser, Eachtlprchaser on the payment of his bids, a certificate, dated the day of the tcficate of pursale, describing the lands purchased, the amount paid therefor, -and the time when the purchaser will be entitled to a deed, which certificate shall be assignable; and any person's interest therein may be transferred by a written assignment indorsed Mayberecorded when. upon, or attached to the same, and such assignment shall have the same force and effect as the assignment of bonds for the conveyance of lands; and such certificate, if acknowledged by the treasurer and certified by a person authorized to take the acknowledgment of deeds, may be recorded in the office of register of deeds of the proper county. SEC. 44. If any lands or town lots shall be bid off for theIf bid off for county, certifi. county, the treasurer shall make a certificate to the county, cate same. similar to that specified in the preceding section, which certificate shall be assignable by the county treasurer in like manner as those given to other purchasers; and such certificates shall be subject to purchase by any person offering to pay therefor a sum equal to the cost of redemption at any [that] time. Need not besold SEc. 45. When any land or town lot is offered for sale for asy prsopty, c. any taxes, it shall not be necessary to sell it as the property of any person or persons; and no sale of any land or town lot for taxes shall be considered invalid on account of its having been charged on the roll in any other name than that of the rightful owner; Provided, That such land or town lots shall be, inProviso, other respects, sufficiently described on the tax roll, and the 868 TAXES. [CH. 197. taxes for which it is sold be due and unpaid at the time of such sale. SEC. 46. The county treasurer shall, immediately after the Treasurer to makelistofland close of the sale of lands for taxes, record a list of all such and property sold, containing lands and town lots, in a book prepared for that purpose. Said what. list shall contain: First, The number of the certificate of sale, and date thereof. Second, The name of the owner or owners, if known. Third, The description of each tract of land or town lot. Fourth, The name of the purchaser. Fifth, The total amount of taxes, penalty and charges at the time of sale. Sixth, Columns for amount of subsequent taxes paid by the purchaser and date of payment. Seventh, Name of person redeeming, and date of redemption. Eighth, Total amount paid for redemption. Ninth, Name of person to whom deeded and Clerk make du- date of deed. The county clerk shall, also, make a duplicate plicate. thereof. Treasurer to file SEC. 47. The county treasurer shall file with the county papers relating to tax sale. clerk all affidavits, notices and papers in reference to such tax sale, to be preserved by him. Property bid off SEc. 48, All lands and town lots, bid off for the county, at for county still liable for taxes, any tax sale, shall continue liable to be taxed, in the same but not sold for same. manner as if they were the property of' individuals, and such taxes, penalty and charges, shall be a lien upon such land and town lots; but no lands or town lots, so bid off for the county, shall be sold for any taxes levied subsequent to such bid, until it shall have been redeemed, or shall be sold by the county, or the tax certificate -issued to the county, shall have been asIf subsequent: sessed. If the subsequent taxes shall not be paid by any taxes notpaidother person, such lands and town lots shall be advertised with, and in the same manner as the other lands and town lots on which the taxes are not paid, and shall be subject to the same penalties and charges as if they should be sold. Subsequent The treasurer shall enter such taxes, penalty and charges, in charges an additionallien. the book of tax sales, of the year in which such lands or town lots were sold to the county, opposite such lands or lots, and such taxes, penalties and charges, shall constitute an additional lien. Person holding SEc. 49. Any person desiring to pay any subsequent taxes certificate make tax payments, on any lands or town lots, for which he holds the tax certificate, shall produce such certificate to the treasurer, who shall indorse thereon the amount of such subsequent tax, and the date of payment thereof; and the treasurer shall, also, enter Ci. 197.] TAXES. 869 said amount and the date of payment thereof, in the bookl of tax sales, opposite such land or town lot. REDEMPTION OF LAND SOLD FOR TAXES. SEC. 50. Any person may, at any time within three years Lands may be redeemed within from the day of sale, redeem any land or town lot, or any three years,how. [Amended, ch. part thereof, or interest therein, by paying to the treasurer of 198-7.] the county where such land was sold, for the use of the purchaser, his heirs and assigns, the amount for which said land or lot was sold, and all subsequent taxes and charges thereon paid by the purchaser or his assigns, in accordance with the provisions of the preceding section of this act, or such proportion thereof as the part or interest redeemed shall amount to, with interest at the rate of twenty-five per cent. per annum on the amount of purchase money from the date of sale, and the same rate on all subsequent taxes paid thereon as provided above, from the date of the payment of the same. SEc. 51. The lands of minors, or any interest they mav Landsofminors, idiots, &c., may have in any lands sold for taxes, may be redeemed at any beredeemed when. time before such minors beconme of age, and during one year thereafter; and the lands of idiots, insane persons, married women and widows, so sold, or any interest they may have in the same, may be redeemed, at any time within five years after such sale; and stock [such] redemption shall be made in the manner provided in the preceding section of this act. SEC. 52. Upon the redemption of any land or lot sold for Pereons redeem.ing receive certaxes, the treasurer shall execute to the person so redeeming, ticate, [Amended, oh. a certificate, specifying the name of the purchaser, the land 198-8.] or lot redeemed, and the amount of redemption money paid, and shall enter into the book of tax sales, opposite such land or lot, the name of the person redeeming, the date of redemption, and the amount paid therefor, which certificate, before it shall have any validity, shall be certified by the county clerk, who shall make a like entry on his duplicate. SEC. 53. The treasurer shall, on demand of any person en- Treasurerto pay redemption motitled to redemption money in his hands, pay the same to such ney to person surrendering person, on his surrendering to him the tax certificate of such certificate. land or lot as has been redeemed; Provided, That if only a portion of the land or lots described in the tax certificate shall Proviso. have been redeemed, the treasurer shall indorse on such certificate the portion redeemed, and the amount of money paid to such person, and shall take a receipt therefor. 870 TAXES. r[C. 197. Ifwrongertfilly catde SEC. 54. If there be a loss or wrongful detention of such tained or lost. certificate, and the land therein described shall have been redeemed, the owner thereof may exhibit to the treasurer evidence of such loss or detention, and, upon his making the same satisfactorily to appear to the treasurer, and upon his executing to him a bonld, with sufficient security, that such person will refund such redemption money, with twelve per cent. interest thereon, if any person shall thereafter show his right thereto, such treasurer shall pay such redemption money to the person so executing such bond. Treasurer to give SEC. 55. The county treasurer, at least six months before notice of time limited for re- the expiration of the time limited for redeeming lands as demption of aendhd ch. aforesaid, shall cause to be published in some newspaper of 198-9.1 general circulation in his county, once a week, for twelve successive weeks, a list of all unredeemed lands and town lots, describing each tract or lot, as tile same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest, calculated to the last day of redemption, due on each parcel, together with a notice, that unless snch lands be redeemed on or before the day limited therefobr, specifying the same, they will be conveyed to the purchaser. If there be no paper of general circulation within the county, he shall cause to be posted, for the same length'of time, such list and notice, in at least four public places in the county, one of which shall be in some conspicuous place in his office. If landsnotre- SEC. 56. If any land, sold for taxes, shall not be- redeemed deemed, deeded to certificate within the time specified by law, the county clerk of the county holder. [Amendeld ch. where the same was sold, shall, on the presentation to him of the certificate of sale, execute, in the name of his county as county clerk, under his hand and seal, to the purchaser, his heirs'and assigns, a deed of the land so remaining unredeemed, and-shall acknowledge the same, which shall vest in the grantee an absolute estate in fee simple in such lands, subject, however, to all unpaid taxes and charges which are a lien thereon; and such deed, duly witnessed and acknowledged, shall beprima facie evidence of the regularity of such proceedings, from the valuation of the land by the assessor, inclusive, up to the execution of the deed, and may be recorded with the like effect as other conveyances of land. Suitfor recovery SEC. 57. Any suit or proceeding for the recovery of lands commenced within three sold for taxes, except in cases where the taxes have been paid years. CO. 197.] TAXES. 871 on the land redeemed, as provided by law, shall be commenced [Amended, ch. within three years from the time of recording the tax deed of sale and not thereafter; Provided, This section shall not be Proviso. construed to interfere with the provisions of section fifty-one of this act. SEC. 58. No sale of land for taxes, and no deed made inNo sale ordeed valid if taxes pursuance thereof, shall be of any validity, if the taxes forpaidpriorto. which the same is sold shall have been paid prior to such sale. SEC. 59. If the county treasurer shall discover, before the Land not sold sale of any land for taxes, that on account of any irregular assessment, or from any other error, such land ought not to be sold, he shall not offer the saime for sale; and if;', after any certificate shall have been granted upon such sale, the county Notconveyed when. clerk shall discover that, for any error or irregularity, such land ought not to be conveyed, he shall not convey the samne; and the county treasurer shall, on the return of the tax certificate, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of six per cent. per annum. SEC. 60. That if; after the conveyance of any land sold for If sale invalid, money refunded taxes, it shall be discovered that the sale was invalid, the county commissioners shall cause the money paid therefor on the sale and all subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded, with interest on the whole amount at the rate of six per cent. per annum, upon the delivery of the deed to be canceled; and, in all such cases, If money refused. when the county treasurer shall have offered to the person entitled thereto his money, as aforesaid, and such person shall refuse to receive it and cancel the deed, he shall not be entitled to receive any interest on the money so paid by him, after the day of such offer and refusal; nor shall any recovery ever be had against the county on the covenant of such deed. MISCELLANEOUS PROVISIONS. SEC. 61. All taxes on personal property, that shall remain unpaidtaxes on personal properunpaid after the first day of May, may be collected by dis-tycollected how. tress in the following manner: The county treasurer shall, before the first day of June, issue a warrant, under his hand, directed to the sheriff of the county, commanding him to levy the amount of such unpaid taxes, together with his fees for collecting the same, of the goods and chattels, lands and 872 TAXES. [Cu. 197. tenements of the person to whom such taxes were assessed, and to pay the same to the county treasurer, and return such Warrant notto warrant within sixty days from the date thereof; Provided, That if the treasurer shall know, or if any one to whom such fact is known, or if the person against whom such unpaid tax is charged, shall make affidavit to the treasurer or any person qualified to administer oaths, that such person is unable, by reason of poverty or infirmity, to contribute to the public charge, such warrant shall not be issued nor executed. The Treasurer to treasurer shall note such fact on the tax roll opposite such note same. tax, and shall preserve all such affidavits and shall submit them, together with uncollected taxes, to the county commissioners. For the purposes specified in this section, the county treasurer is hereby authorized to administer oaths. Sheriff's fees. SEC. 62. For the services specified in the preceding section, sheriffs shall be entitled to the same fees as are allowed by law to sheriffs on executions. Payments made SEC. 63. That on or before the fifteenth day of January, in to Territorial treasurer, when, each year, the several county treasurers shall pay to the TerJAmended, ch. 99 —2.] ritorial treasurer, in gold or silver coin or in Territorial warrants, the amount of Territorial tax received by them, on or before the first day of January; and, before the fifteenth day of May in each year, they shall pay the whole amount of Territorial taxes:charged to their respective counties, which tax, when so paid, shall be credited by the Territorial treasurer to Take receipt for the county so paying the same, and the Territorial treasurer shall give to the county treasurer a receipt therefor. County treasu- SEC. 64. If any county treasurer shall fail to pay into the pay over same. Territorial treasury any moneys in his hands for that purpose, within the time prescribed by law, he shall, in addition to other penalties, be liable to the following: If he fail for the space of ten days, he shall forfeit to the Territory ten per cent. of the amount withheld, and if he fail for thirty days after such specified time, he shall forfeit his office as treasurer and Proviso. be deemed a defaulter; Provided, That [if] he can show a sufficient reason for such delay, he shall not be subject to any penalty. If land conveyed SEC. 65. As between the grantor and grantee of any land even with or prior to war- where there is no express agreement as to which shall pay the rant for tax roll, who pays tax. taxes that may be assessed thereon, if such land is conveyed [Amended, ch. 98-12.] even with or prior to the date of the clerk's warrant, to the tax roll, authorizing the collector [collection] of such taxes, CH. 197.] TAXES. 873 then the grantee shall pay the same; but, if conveyed after that date, then the grantor shall pay them. SEC. 66. The entries in the county treasurer's books, the Records evidence in judicial assessment rolls and warrant thereto attached, and a list of proceedings. the lands sold fbr taxes, recorded by the treasurer, shall be prima facie evidence in all judicial proceedings. SEC. 67. The county board of equalization shall have power Board of equalization authorito enter on the tax roll any lands which may have been omit- zed to enter on tax roll lands ted by the assessor; Provided, The same shall have been en- omitted. tered or pre-empted before the first day of their session, and Provieo. give the same a fair and just valuation. SEC. 68. If any lands shall have been taxed which werefllandS taxed which are not not taxable legally, the treasurer shall omit to collect the same, taxable legally. on the owner's filing with him an affidavit or other proof of the fact; and the treasurer shall make a note thereof opposite such tax, and shall return the description of such lands and the amount of taxes thereon, together with such affidavits or proofs relating to the same as have been filed with him, to the county commissioners, at his annual settlement with them; and said commissioners shall cancel such tax, and credit him with the amount thereof on settlement. SEC. 69. If any person, within two years after the payment If illegally assessed, rodemp. of any tax by him, can satisfactorily show to the county com- tiol made with. in two years. missioners that the same was illegally assessed, the commissioners shall order the same to be repaid by the county treasurer. SEC. 70. That, if any county treasurer shall unavoidablyIflands notsold in May, omit or fail to sell any lands or town lots for unpaid taxes, on the first Tuesday of MAay, he shall advertise and sell such land or town lots on the first Tuesday in September next ensuing, and such advertisement and sale shall conform, in all respects, to the provisions of this act, and shall be as binding and valid as like sale made on the first Tuesday of May; Provided, That Proviso. if such lands or town lots have been advertised as provided by law, and have not been sold by reason of any injunction or judicial proceedings to stop such sale, after such injunction shall have been dissolved, it shall only be necessary for the treasurer to cause to be published, in some newspaper of general circulation in his county, a notice, stating that such lands and lots as were not sold by reason of such injunction, [shall be sold] at such time and place as shall therein be specified, which time shall not be less than ten days from the date of publication; and it shall not be necessary to publish in such notice the description of such land or lots. 874 TAXES. [CH. 198. Fees of officers SEC. 71. In addition to any fees elsewhere specifically allowed and persons concerned. for services to be performed under the requirements of this act, the following shall be allowed, to wit: To the county clerk, for every deed of land sold for taxes, seventy-five cents; for each additional parcel of land described therein, after the first, five cents; to the person taking and certifying the acknowledgment of the same, twenty-five cents; to said clerk, on certificate of redemption, twenty-five cents; for each additional parcel of land described therein after the first, five cents; to the county treasurer, for a certificate of sale of lands, twenty-five cents; for each additional parcel of land described therein, five cents; to the printer who shall publish any notice of sale for taxes, for each tract other than town lot, twenty-five cents; for each town lot, ten cents for all the insertions; to the printer who shall publish any notice of the time when the redemption of lands sold for taxes will expire, for each tract or lot of land, thirty cents for all the insertions. Board of equali. SEC. 72. The meeting of the Territorial board of equalizazation, when hall meet. tion shall be on the second Monday of August, annually. SEC. 73. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed. SEc. 74. This act shall take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER CXCVIII. (Acts of 1862.) AN ACT to amend an act to Provide for the Assessment and Collection of Taxes, approved February 27, 1860. Be it enacted by the Leg-islatu7le of the State of Kansas ~ [See ch. 197-2.] SECTION 1. That section two of " an act to provide for the What term real property shall assessment and collection of taxes," approved February 27, include. 1860, be and the same is hereby amended to read as follows: Real property shall, for the purpose of taxation, be construed to include the lands, excluding the crops and all improvements on lands not exceeding in value five hundred dollars; Provided, Improvements. That no more than five hundred dollars worth of improvements Mines, &c. shall be exempted for any one person. And all mines, minerals and quarries in and under the same are exempted; and the CH. 198.3 TAXES. 875 terms "land" and "real estate," when used in this chapter, shall be construed as having the same meaning as " real property," Provided, further, that this act shall not be construed to prohibit any city or municipal corporation in this State from Citiesmay tax improvements, levying and collecting taxes for city purposes upon improve- ldrdrfillarhuments valued under five hundred dollars. SEC. 2. That section five of the same act is hereby amended Propertyexempt from taxation. so as to read as follows: The following property shall be [see ch. i97-5.] exempt from taxation: First-All property, real and personal, of the United States, and of this State. Second —All public or corporate property of the several counties, cities, villages, towns, and school districts, in this State, used or intended for corporate purposes, except land bid off for counties at tax sales. Third-The personal property of all literary, benevolent, charitable and scientific institutions, incorporated within this State, and such real estate belonging to such institutions as are used and occupied by them for the purpose for which they were incorporated. Fourth-All houses of public worship and the lots on which they are situated, and the pews or slips and furniture therein; every parsonage, all burying grounds, tombs and rights of burial; but any part of any building, being a house of public worship, which shall be occupied and used as a store or shop, or for any other purpose than for public worship or schools, shall be taxed upon the cash valuation thereof, the same as personal property, to the owner or occupant; and the taxes thereon shall be collected in the same manner as the taxes on personal property.,Fifth-All public libraries and the real and personal property belonging to or connected with the same. Sixth-All personal property to the value of two hundred dollars. Seventh-Two horses, or two yoke of cattle, or one of each, two cows, ten sheep, ten hogs, and live stock to the value of one hundred dollars. Eighth-All wagons and harnesses used for teaming; all mechanics' tools and agricultural implemlents. SEC. 3. That section eleven of the same act shall be amended Land and improvements shall to read as follows: Land and improvements shall be valued bealued siepseparately at their true value- in money, but the price for which [See ch. 197 —.] such real property would sell at auction or at forced sale shall not be taken as a criterion of such value. Personal property Personalpropof every description shall be valued at the usual selling cash val'ed. to price of similar property at the time and place -of listing, and if there be no usual price, then at the price that is believed could be obtained therefor in money. 876 TAXES. [Cu. 198, Duties of assess- SEC. 4. That section twelve of the same act shall be amended or. [See ch. 197 —12.] so as to read as follows: Between the first day of April and the first day; of August, in each year, the county assessor, in the several counties in this State shall ascertain by diligent inquiry, the names of all taxable persons in his county, and also all their taxable personal property owned on the first day of April, and all real estate therein, and shall assess and appraise the same as herein provided, and shall for that purpose require of every Affidavit to be person liable to taxation a statement, verified by his oath or required. affirmation, of all the personal property, moneys, credits, investments in bonds, stock, joint stock companies, or otherwise, in his possession or under his control on the first day of April. SEc. 5. That section nineteen of the aforesaid act is hereby repealed. County clerk SEC. 6. That section twenty shall be amended so as to read shall furnish assessment roll.2 a follows: The county clerk shall deliver to the assessor, on or before the first day of April, in each year, the assessment roll of the preceding year, and the list of taxable lands, and take his receipt therefor; and the assessor as soon as he shall have completed his assessment, and made his assessment roll for the year, shall return the whole of such papers and documents to the clerk. [See ch 197 —50e ] SEC. 7. That section fifty be amended so as to read as folHow owner may redeem. lows: Any person may, at any time within two years from the day of sale, redeem any land or town lot, or any part thereof, or interest therein, if the title thereto vested in the person seeking to redeem, at the time of the tax sale, by paying to the treasurer of the county where such land was sold, for the use of the purchaser, his heirs and assigns, the amount for which said land or lot was sold, and all subsequent taxes and charges thereon paid by the purchaser or his assigns, in accordance with the provisions of the preceding and subsequent sections of this act, or such proportion thereof as the part or interest redeemed Penalty. shall amount to with interest at the rate of fifty per centum per annum on the amount of purchase money from the date of sale and the same rate on all subsequent taxes paid thereon as provided above, from the date of the payment of the same. Certiicateofre SEc. 8. That section fifty-two be amended so as to read as [Seech.197-4.2. follows: Upon the redemption of any land or lot sold for taxes, the treasurer shall execute to the person so redeeming, a certificate specifying the name of the purchaser, the land or lot redeemed, and the amount of redemption money paid, which Ca. 198.] TAXES. 877 said redemption money shall be paid in gold or silver except nedmptnto on lands purchased by the county, and for no portion of the or silver. same shall the redemptioner pay warrants or scrip of any kind except on lands purchased by the county; and the treasurer shall enter into the book of tax sales, opposite such land or lot, the name of the person redeeming, the date of redemption, and Entries of reodemption to be the amount paid therefor; which certificate before it shall have made. any validity, shall be certified by the county clerk, who shall make a like entry on his duplicate. And the moneys so paid Money to be paid to the perinto the treasury shall be reserved as a trust fund and shall be son redeeming. paid to the purchaser of the -property, at the tax sale, in like moneys as received by the treasurer, and in no case in' scrip or warrants; Provided, when any county purchase any lot or lots If county purchase, redempsold for taxes in any city, the redemptioner, shall have thetion may be made with scrip. right to pay the amount of taxes and charges due thereon, in the outstanding warrants, of the city, township, county or state, as the case may be, in the respective amounts due thereon. SEC. 9. That section fifty-five be amended so as to read as [See ch. 197 —55. List of unrefollows': The county treasurer, at least four months before the deemed land to expiration of the time limited for redeeming lands as aforesaid, b hed. shall cause to be published in some paper of general circulation in his county, once a week for four successive weeks, a list of all unredeemed lands and town lots, describing each tract or lot, as the same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest, calculated to the last day of redemption, due on each parcel together ith a notice that unless such lands or lots be redeemed on or before the day limited therefor, specifying the same, they will be conveyed to the purchaser, and such advertisement shall be charged in the costs of the deed granted to the purchaser. If there be no paper of general circulation within the county, he shall cause to be posted, for same length of time, such list and notice, in at least four public places in the county, one of which shall be in some conspicuous place in his office. SEC. 10. That section fifty-six be amended so as to read as [See ch. 197 —56.] Tax deed, when follows: If any land sold for taxes, shall not be redeemed within to be made. the time specified by law, the county clerk of the county where the same was sold, shall, on the presentation to him of the certificate of sale, execute in the name of his county, as county clerk, under his hand and seal, to the purchaser, his heirs and assigns, a deed of the land so remaining unredeemed, and shall 56 878 TAXES. [CH. 198 acknowledge the same, which shall vest in the grantee, an absolute estate in fee simple in such lands, subject, however, to all unpaid taxes and charges which are a lien thereon; and such deed, duly witnessed and acknowledged, shall be prima facie evidence of the regularity of such proceedings, from the v'aluation of the land by the assessor, inclusive, up to the execution of the, deed, and may be recorded with the like effect as other conveyances of land; said deed shall be substantially in the following form: Form of deed. Know all men by these presents, That, whereas, the following described real property, viz:-(here follows the description)situated in the county of and State of Kansas, was subject to taxation for the year, (or years,) A. D. and, whereas, the taxes assessed upon said real property, for the year, (or years,) aforesaid, remained due and unpaid at the date of the sale hereinafter named; and, whereas, the treasurer of said county did, on the day of A. D. by virtue of the authority in him vested by law at (an adjourned sale of) the sale begun and publicly held on the first Tuesday of A. D. expose to public sale, at the county seat in said county, in substantial conformity with all the requisitions of the statute in such case made and provided, the real property above described, for the payment of the taxes, interest and costs then due and remaining unpaid on said property; and, whereas, at the time and place aforesaid, A. B., of the county of and State of having offered to pay the sum of dollars and cents, being the whole amount of taxes, interests, and costs then due and remaining unpaid on said property, for(here follows the description of the property sold)-which was the least quantity bid for; and payment of said sum having been by him made to the said treasurer, the said property was stricken off to bim at that price; (and, whereas, the said A. B., did on the day of A. D. duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to E. F., of the county of and State of;) (and when subsequent taxes have been paid by the purchaser, add the following:) and, whereas, the subsequent taxes of the year amounting to the sum of dollars has been paid by the purchaser as provided by law, and, whereas, years have elapsed since the,date of said sale, and the said property has not been redeemed'therefrom as provided by law. Now, therefore, I, C. D., county CIE. 198.1 TAXES. 879 clerk of the county aforesaid, for and in consideration'of the sa/id sum of dollars and cents, taxes, costs, and interest due on said lands for the years to the treasurer paid as aforesaid, and by virtue of the statute in such case -made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said A. B., (or E. F.,) his heirs and assigns, the real property last hereinbefore described; to have and to hold unto him, the said A. B., (or E. F.,) his heirs and assigns forever; subject, however, to -al the rights of redemption provided in the act to which this is amendatory. In witness whereof, I, C. D., county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name, and affixed my official seal, on this day of A. D. Witnesses, C. D., County Clerk. STATE OF KANSAS, } County, sf I hereby certify, that before me,, a -, in and for said county, personally appeared the above named C. 1)., clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to, and who executed, the above conveyance as clerk of said counlty, and who acknowledged the execution of the same to be his voluntary act and deed, as clerk of said county, for the purposes therein expressed..Witness my hand and - seal, this - day of A.D.No irregularities or inequalities in the assessment roll, nor Irregularities not to invalilfat~ omissions from the same, nor mere irregularities of'any kind, title. shall invalidate the title conveyed by the aforementioned deed; nor shall any failure of any officer or officers to perform the duties assigned him or them, upon the day specified, work an invalidation of the said deed: Provided, that their duties be properly and justly performed, to the best of their ability, upon some adjourned or subsequent day. SEC, 11. That section fifty-seven be amended, so as to read suits forrecov-:as follows: Any suit or proceeding for the recovery of lands byought. sold for taxes, except in cases where the taxes have been paid on the land redeemed, as provided by law, shall be commenced 880 TAXE. [COH. 198& within two years from the time of recording the tax deed of' sale, and not thereafter: Provided, further, that before any Tender to be suit or proceeding shall be commenced for the recovery of any made. land heretofore sold or hereafter to be sold for taxes, the party desiring to bring such suit shall tender to the holder of such tax deed, if a resident of the county in which the land so sought to be recovered may lie, otherwise to the clerk of the district court of such county at the time of filing his petition, for the use of the holder of such tax deed, the full amount of all taxes paid on said lands, with all interest and costs as allowed by law up to the date of said tax deed, including the costs of such deed, and the recording of the same, with interest on such amount to the time of such tender, at the rate of twenty per cent. per annum, and the further amount of taxes paid after the date of such deed, and interest thereon, as provided by the fiftieth section of the act to which this is amendatory, and one dollar in addition for a deed of conveyance; If suit be deter- and' in case the said suit or proceeding shall be determined mined adversely to holder of tax adversely to the holder of the tax deed, no action shall lie for deed, he shall notrecover taxethe recovery of the money, so as above required to be tenpaid. dered: Provided, further, that this section shall not impair the provisions of section fifty-one of the act to which this is amendatory. [Seeeh.197 —65.] SEC. 12. That section sixty-five be amended, so as to read As between grantor and as follows: As between the grantor and grantee of any land, grantee, who shall pay. when there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed even with or prior to the first day of April, then the grantee shall pay the same; but if conveyed after that date, then the grantor shall pay them. assessments to SEc. 13. The following shall be added as another section to be made but once in three said act, and shall be numbered section seventy-five: In the years. year 1862, the real property within the State of Kansas, with all improvements thereon, shall be assessed in accordance with the preceding sections of this act, and of the act to which this is amendatory; and no further assessment shall be made until the year 1865, and only once in three years thereafter. But the county assessor shall add to the assessment roll of each,ntriesOatrU. S. year all lands in their respective counties entered prior to land officer to be l n addedto asses- s- arch first of each year, at the United States land office for thet roll. the district in which his county may lie, and such land shall C'ia. 199.] TAXES. 881 be assessed by him to correspond, as nearly as possible, with similar land in the county, and-be taxed the same rates. SEc. 14. The following shall also be added, and numbered How payments' section seventy-six: When the county sells any land or lots laedsbid o f at for delinquent taxes, the treasurer shall exact the State tax in money or warrants of the State, as provided in the revenue law; and township or city taxes shall be paid in the scrip or warrants of the respective townships or cities where the land or lots lay, or in money. SEC. 15. The following shall be added., and numbered as Eeminsiono penalty. section seventy-seven No board of county commissioners shall remit the ten per cent. added to delinquent taxes after the first day of January, nor change the time of sale for delinqueant taxes. SEC. 16. When the treasurer shall receive any tax, he shall Tax receipts.,give a receipt therefor. If upon land or a town-lot, the receipt shall describe the land as it is described in the tax-roll, land give the valuation thereof; and if upon personal property, it shall state the value thereof. SEC. 17. That original sections two, five, eleven, twelve, Repeal. nineteen, twenty, fifty, fifty-two, fifty-five, fifty-six, fifty-seven, and sixty-five of the act to which this is amendatory, be and the samue are hereby repealed; and an act for the encourage- Act for encor- -:Sagemenrt of wool mernt of wool growing, approved February 25, 1860, be and growing repealed. the same is hereby repealed. SEC. 18. This act shall take effect and be in force fromn and after its publication; and it shall be the duty of the secretary of State, immediately upon the approval of this act by the governor, to have a certified copy published once in the "'Daily State Record," which shall constitute such publication. Approved March 6, 1862. CHA PTER CXCIX. (Chapter CXVI, 1860.) AN ACT relating to the Payment of Taxes. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That Territorial warrants shall be received in Territorial and township warpayment of Territorial taxes; county warrants in payment ofralts received for taxes. 882 TAXES, CERTAIN TERRITORIAL [CG. 2O0O county taxes; and township warrants in payment of township taxes. County treasu- SEC. 2. County treasurers shall not be required to pay into rers pay over only taxes collect- the Territorial treasury more Territorial taxes than shall have e0; Ls8ee h. 197 —63.i been actually collected in their respective counties. SEC. 3.. This act to take effect and be in force friom and after its passage. Approved February 27, 18:60. CHAPTER CC. (Session of 1862.) AN ACT to require certain Counties to Collect and Pay over Delinquend. Territorial Taxes. Be it enacted by the Legislature of the State of Kansas: Auditor of State SECTION 1. That the auditor of State is hereby authorized shall give notice to counties and required to give notice, on or before the filrst day of' July, paid Territorial 1862, to the county clerks of such counties as have failed or taxes, neglected to levy and collect, accordicng to law, the amount of Territorial tax due from them, under the provisions of an act entitled'an act to provide revenue for the years eighteen hundred and fifty-nine and eighteen hundred and sixty, ape proved February 27, 1860," and an act entitled "'an act to provide for the assessment and collection of taxes, approved February 27, 1860," or either of said acts; such notice to set forth the amount of tax due front the county to which it is sent, under the provisions of the act or acts aforesaid. Boardi~of e~on- SEC. 2. That the several boards of county conmmissioners of missioners shall, levy, the counties to which said notice shall be sent, shall levy and colleet, along with other taxes for the year 1862, the amount specified in the auditor's notice aforesaid, and shall pay the same into the State treasury. SEC. 3. This act shall take effect and be in force from an.d after its publication in the statutes.. Approved NMarch 6, 1862.. Cii. 201-202.] TAXES-ON CERTAIN LANDS. 883 CHAPTER CCI. (Session 1862.) AN ACT to authorize the Commissioners of Miami County to correct errors and irregularities in the Assessment and Collection of Taxes. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the board of commissioners of the county Commissioners of Miami county of Miami, are hereby authorized and empowered to correctauthliorizedto correct errolrs. errors and irregularities that have heretofore occurred in the assessment and collection of taxes in said county of Miami, so that the same may be made to conform with the requirements of law. SEC. 2. This act to take effect and be in force from and after its passage. Approved March 6, 1862. CHAPTER CCII. (Session 1862.) AN ACT regulating the Assessment and Collection of Tax upon certai; Lands. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That all that portion of sections two and eleven Sec. 2 and II, tp. 15, R. 15, ex in township fifteen of range fifteen east, in Kansas, which has empt from taxabeen platted as a town or towns, and the plat on file in the office of the register of deeds of the proper county, be and the same is hereby released from the operation of an act approved February 11, 1859; and it shall not be lawful for said land to be assessed or sold for tax levied upon the same as a town site: Provided, that nothing herein contained shall be construed to exempt said land for tax, as in ordinary cases, upon agricultural lands. SEC. 2. This act to take effect and be in force from and after its passage. Approved March 4, 1862. 884 TOWNSHIPS AND TOWNSHIP OFFICERS. [CO. 203. CHAPTER CCIII. (Chapter CXXVIII. Laws of 1860.) AN ACT relating to Townships and Township Officers. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Townships body SECTION 1. That each and every township that now is or politic and corporate. may hereafter be organized in any county in this Territory, is hereby declared a body politic and corporate, and, in their proper names, may contract and be contracted with, sue and be sued in any court having competent jurisdiction of the subject matter. Election held SEC, 2. That on the fourth Monday of March next, there for what officers. [See ch. 86-1, shall be elected, by the qualified electors in each township, 2. two justices of the peace, or so many as may be necessary to make two, if there be any in the township, one of whom shall be elected for two and one for one year, and it shall be so designated on the ballot, and two constables and one township trustee, and such number of overseers of highways as may be necessary; and, on the fourth Monday of March, annually thereafter, there shall be elected, by the qualified electors of each township, one justice of the peace, two constables and Julisdictionof one trustee. The powers and jurisdiction and duties of the pusticesndfthne several justices of the peace and constables herein provided stable. for shall be the same as now prescribed by law, and the duties of the several trustees shall be as hereinafter provided for. Trustees hold SEC. 3. The said trustees shall hold their offices for one year office r until their successors are elected and qualified, and, before entering upon the duties of their office, shall respectively take an oath or affirmation, before some person authorized to administer oaths, for the faithful performance of their several duties, and severally execute a bond to the board of county Take oath and commissioners, conditioned as in ordinary official bonds, with A"le bond. at least two freehold securities, in a penalty of not less than double the amount of money which may come into their hands, at any time during their term of office, to be approved by said board of county commissioners. Duties of trustee SEC. 4. The duties of said township trustees shall be: First, To keep a true record of his official proceedings, in a book to be provided for that purpose. Second, To receive all moneys belonging to the township, and pay the same out according to CH. 203.] TOWNSHIPS AND TOWNSHIP OFFICERS. 885 law, as right and justice shall require. Third, To divide his township into convenient highway and school districts, and make such alterations in the same as may be necessary. Fourth, To fill all vacancies in the office of overseers of highways, in his township. Fifth, To see to a proper application of all moneys, belonging to his township, for road, school or other purposes, and to perform all the duties heretofore required of township trustees, [supervisors,] clerk and treasurer. Sixth, To have the care and management of all property, real and personal, belonging to his township, and to superintend the various interests thereof. Seventh, To cause a record to be made, accurately defining the boundaries, and number of each road district as well as all alterations made in such district or districts, in his township, and the number of overseers of highways in each township. Eighth, Shall have power to administer all oaths, in the necessary discharge of the duties of his office. Ninth, shall, by virtue of his office, be inspector of elections and overseer of the poor. Tenth, Shall superintend all the pecuniary concerns of his township, and shall, at the July session of the board of county commissioners, annually, with the advice and concurrence of said board, levy a tax on the property of the citizens of such township, for township, roads and other purposes, and report the same to the county clerk, who shall enter the same on the proper tax duplicate, in a seperate column or columns, and the treasurer shall collect the same as other taxes are collected; but, in a failure of such trustee and commissioner to concur, then such board of county commissioners shall levy such township, road and other taxes. SEC. 5. All vacancies in the office of township trustee shall Vacancies, how filled. be filled by the board doing county business, in term time, or the county clerk in vacation; and every trustee, so appointed, shall continue in office until his successor is elected and qualified, and shall execute a bond, as provided for in section three of this act. SEC. 6. The trustee shall examine and settle all accounts To keep account of receipts and and demands against his township, and shall keep an accurate expenditures.; account with his township, which shall be so arranged and kept as to show the amount received and paid out, on account of separate and distinct funds, and to whom paid, as well as the whole receipts and expenditures, by one general account, and shall file all accounts as vouchers, and report the same to 886 TOWNSHIPS AND TOWNSHIP OFFICERS. [CH. 203. the county board in his annual settlement therewith, which report shall be verified by his affidavit. Settle and make SEC. 7. The trustee shall, annually, on the last Saturday in report annually. February, settle with and audit the accounts of' road overseers of highways in his township, and shall, within five davs thereafter, make, tothe board of county commissioners, a complete report of the receipts and expenditures of his township, during the preceding year; whichl report shall clearly show the amount received and expended on account of township, road, school and other purposes, as well as the proper balance re. maining on hand; and he shall, within ten days thereafter, record, at length, a copy of such report in the township record, and publish the same, by posting up a certified copy of the same, at the place of holding elections therein. Deliver property SEC. 8. Such trustee shall, at the expiration of his term of in his possession to successor. office, deliver to his successor all the moneys, books, papers and other property belonging to his township. To present item- SEC. 9. The trustee, at the time of settling with the county ized account of 5 n charges and board, as provided in section seven of this act, shall file with said board an itemized statement, verified under oath, of his charge and services as such trustees; upon whi-ch the board Compensation. Of counlty commissioners shall allow him such reasonable compensation as they may deem just, Dot to exceed two dollars per day, or in that proportion, for all time necessarily em_ ployed, which shall be paid out of the funds of the proper township. Recordsopenfor SEC. 10. The records and other books of the township truspublic inspection. tee shall always be open for public inspection. Offices abolish- SEC. 11. The offices of township clerk and township treased when. urer are hereby abolished, after the election and qualification of the trustee herein provided for, and, after such election and qualification, it shall be the duty of such clerk and treasurer to deliver to suclh trustee all moneys, books, papers and all other property of such township in their possession. In actions SEC. 12. In all actions against a township, process shall against township, process be served by delivering a certified copy thereof to the trustees, served on trustee at least ten days before the return day of such process, and the trustee may appoint an attorney to defend such suit or proceeding. Persons failing SEC. 13. Should any person elected or appointed to the ofto perform duty after accepting. flee of trustee, under this act, after having accepted such office, fail to perform any duty required of him by law, such CH. 203.1 TOWNSHIPS AND TOWNSHIP OFFICERS. 887 person, so failing, shrall forfeit and pay to such township any sum, not exceeding one hundred dollars for each failure, to be recovered in a civil action, in the name of said township, before any court of competent jurisdiction. SEC. 14. The township trustee shall have, in no case, any Tr{ustee cannot - clange, locate power to cllange, locate or vacate any highway, in any town- o vhwatye any ship, in any county; but such power is vested in the county commissioners of the county, under the same regulations as to the petition, notice and appointment of viewers, and assessment of damages, as are now provided by law;, in cases affecting in more than one township, and that all business now pending before any board of township supervisors, in relation to changing, vacating and locating highways, be transferred to the board of county commissioners of the proper county. SEC. 15. That the trustee and justices of the peace, herein Trustee and justice of the peace provided for, shall be judges of the election in their respective judges of electownships, and shall have power to appoint two clerks for each election precinct, and shall conduct the said election in all respects, as other elections under the general election law; and, should the said trustee and justices, or either them, fail f, they fail to to meet at a place of holding the election, by the hour'of ten o'clock in the morning, then the electors present shall select from their number, viva voce, one or more judges of election, as the case may be, who shall have all the powers and authority of the judges herein mentioned; and, previous to receiving any votes, the judges and clerks shall severally take an oath or affirmation that they will faithfully discharge the duties of their respective offices; which oath or affirmation the judges and clerks are hereby empowered to administer to each othler. SEC. 16. That it shall not be lawful for any elector to vote Ballot forbut for more than one overseer of highways; and, if any ballot shall contain more than one name for the office of overseer, the same shall be deemed void, so far as that officer is concerned. SEC. 17. Every constable, before he enters on the discharge Caoath' oto of the dutius of his office, shall take an oath or affirmation, before a person authorized to administer the same, faithfully to discharge his duties as constable, during his continuance in office, according to the best of his al.bility. SEC. 18. Eveiy constable, within ten days after his election, Give undertaking. and before he shall take the oath of office, shall give an under 888 TOWNSHIPS AND TOWNSHIP OFFICERS. [CI. 203. taking to the Territory of Kansas, in a sum not exceeding two thousand dollars nor less than five hundred dollars, with one Conditions. or more sureties, residing in the proper township, such as the board of county commissioners shall approve, conditioned for the safe keeping and paying over to the proper person or authority all moneys which may be collected or received by him, or which may otherwise come into his hands, by virtue of his office, and for the due, honest and faithful discharge and performance of, all and singular, his duties as such constable, according to law, during his continuance in office. Undertaking SEC. 19. When such undertaking shall have been given, to filed. the satisfaction of the board, the county clerk shall make an entry of the same, and file the same in his office. ]Boardtofill va- SEC. 20. Whenever a vacancy shall occur in the office of cancies. constable, in any township, by death, removal, resignation or non-acceptance of the person elected, or where there shall be a failure to elect, the said board shall appoint a suitable person to fill such vacancy, until the next annual election for constable, and until a successor be elected and qualified. Appointee to SEC. 21. The constable so appointed shall take a like oath give like undertakingand take and give a like undertaking as is required in other cases of oath. constables. Justices of the SEC. 22. Justices of the peace, after the first election under peace hold office how long. the provisions of this chapter, shall severally hold their offices for two years, from and after the[ir] election and qualification, except when elected to fill a vacancy, and, when so elected, shall hold during the unexpired portion of such term. To execute bond SEC. 23. Every justice of the peace, before he enters upon the duties of his office, and within the time limited by law for filing his oath of office, shall execute an instrument, in writTo beapproved. ing, with two or more sufficient sureties, to be approved by the county board of commissioners, which writing shall be, in substance, as follows: "A -- B, chosen justice of the peace, in the township of ---—, and county of s and C - D --- and E- F, his sureties, do hereby jointly and severally agree to pay, on demand, to each and every person who may be entitled thereto, all such sums of money as the said justice may become liable to pay, on account of any moneys which may come into his hands by virtue of his office. Dated at, this day of - —, AD. D. A —- B —--—, C D E F — —." CH. 204.] TOWN SITES. 889 SEC. 24. The approval of said bond shall be indorsed there- fled in oounty on, and the said justice shall cause the same to be filed in the office of the county clerk, and a copy of such instrument, duly certified by such clerk, under the seal of the county, shall Copy evidence. be prima facie evidence of the contents and execution thereof. SEC. 25. Whenever a justice of the peace shall be elected If elected to fill to fill a vacancy, it shall be so designated on the ballot. stated on ballots SEC. 26. All acts or parts of acts inconsistent with this act are hereby repealed. SEC. 27. This act to take effect and be in force from and after its passage. Approved February 27, 1860. CHAPTER CCIV. (Chapter LXXII. Acts, 1858.) AN ACT to Regulate the Entries and Disposal of Town Sites. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTION 1. That in all cases in which any of the public land Town sites, how and by whom of the United States in Kansas Territory has been or shall"entered hereafter be selected and occupied as a town site, if the inhabitants of such town shall be at the time incorporated, it shall be the duty of the corporate authorities of such town, or if not incorporated, then of the judges of the county in which such town site is situate, whenever called on by any of the occupants of such town, and the money for the entrance of such town site furnished, to enter' such town site under the act of Congress entitled "' An act for the relief of the citizens of towns upon the lands of the United States, under certain circumstances. Approved May 23, 1844." SEC. 2. That whenever any town site has been or shall here- Land thns ontered shall be after be entered under the provisions of the above recited act conveyed to the of Congress, and the persons who selected or laid out such town site, or their assigns, have been or shall hereafter be incorporated as a town company, with power to purchase and hold the land on which such town is situated, it shall be the duty of the person or persons entering such town site, to convey the land thus entered to such incorporated company; and where the persons who laid out such town have not been incorporated, it 890 TOWN SITES. [CH. 204. shall be the duty of the person entering such town site to convey the land and lots embraced in such town site to the persons who laid out such town, or to their assigns. All persons who SEC, 3. That all persons who select and lay out a town site, lay out and select a town site and their assigns, shall be deemed occupants of said town deemed occupants. site and the lots embraced therein, within the meaning of the above recited act of Congress, and deeds shall be made accordingly. When persons SEC. 4. That whenever the persons entering any town site entering town site convey land shall convey the land entered by them to any town company, or to town comnpany, title shall to the persons who may have laid out such town site, the title vest in purchasers. thus conveyed shall vest in the persons who may have purchased from such company, or from the persons laying out such town site, as fully and to the same extent that such title would have vested had such town company, or the persons laying out such town, had title to said land at the time of the sale thereof. When entered, SEC. 5. That when a town site is entered under the above deeds shall be made. recited act of Congress, by the corporate authorities of any inNatureof deeds, corporated town, deeds shall be made by the mayor or other and how made. chief officer of such town for the time being, and said deed:r deeds shall be attested by the city clerk or register, and shall be signed by such mayor or other chief officer, under the corporate seal of said city, attested by said city clerk or register, if said city shall have a corporate seal; and if it shall have no seal, then under the scrawl or private seal of said mayor or other chief officer, attested by the city clerk or register, as aforesaid. When the land is entered by the judges of the county court, deeds shall be made by the presiding judge of such court, signed by him, and under his scrawl or private seal. In all cases deeds shall be acknowledged by the officer executing the same, as other deeds for land are acknowledged, and may then be recorded in the office of the recorder of the proper county, in like manner and with like effect as other deeds for lands; and when so acknowledged and recorded, shall be deemed prima facie evidence of title in the person to whom such deed is made. When a person SEC. 6. That if the presiding officer of any town, or the interested in a tow, site may judge of any county court, refuse, on application of any person enter it. interested, to enter any town site, or be an adverse claimant of any portion of any town site, any person interested in said town site shall have the right to use the name of such officer for all purposes in the entry of such town site. Ott. 204.] TOWN SITES. 891 SEC. 7. That whenever the right to any lot or piece of land When the right to any lot or is contested, the person whose duty it is to convey such land piece of land is contested, prounder the provisions of this act, shall have power, and it shall ceedlgs. be his duty to hear and determine the rights of the respective claimants, to administer oaths to witnesses, to summon and compel the attendance of the same, and to punish witnesses for contempt in refusing to appear or testify, in like manner as justices of the peace, in cases in which they have jurisdiction. SEC. 8. That either party shall have the right to appeal from Either party plmay appeal to any decision rendered against him, as provided in the preceding district cort. section, to the District Court of the proper district, by executing bond, with security for the costs of such appeal, at any time within ten days of such decision; and such applicant shall give to the adverse party notice of such appeal, in writing, at least twenty days before the next term of such court, if such term be more than forty days after such decision; if such term be less than forty days after such decision, such notice shall be given at least thirty days before the next succeeding term of said court, and such cause shall be for trial at such term, unless continued for cause. SEC. 9. That on such appeal being taken, it shall be the duty When aiopeCa is of the oflicer to certify a transcript of his proceedings in such shall certifyfi transcript of his cause, to the District Court, and to suspend the execution of pr~ceedngst~o any deed to the land in dispute, until the decision of such ap- court. peal is made in the District Court. SEC. 1(,. That the judge aforesaid shall, on application of the when the judge shall convey parties laying out such town site, convey to trustees, appointed land elntered to by them for that purpose, the entire piece or parcel of land so entered by them, to be conveyed by said trustees as the person laying out such town site shall direct. For every such deed, Fees of judge for entering site,&c, the judge shall receive the sum of ten dollars, and for his services in entering such town site, the sum of five dollars for every day actually employed in making such entry. SEC. 11. That if any officer refuse, on demand, to executeIf~ficefrefuse any deed as required by this act, the party entitled to the land le may be conmdrelled by manmay compel the execution of such deed by mandamus from the damns. District Court of the proper district. This act to take effect and be in force from and after its passage. Approved February 12, 1858. 892 TREASURER. [CH. 205. CHAPTER CCV. (Chapter XC. Acts 1861.) AN ACT prescribing the Duties and Liabilities of the Treasurer of State. Be it enacted by the Legisclature of the State of Kans s:s Duties of the SECTION 1. The State Treasurer shall keep his office at the treasurer. capital of the State; shall have charge of and safely keep all public moneys which shall be paid into the treasury, and shall pay out the same as directed by law, and shall perform such other duties as may be required by law. Shall give bond. SEC. 2. The present Treasurer shall at once give bond, with five or more securities, to be approved by the Governor, in the sum of two hundred thousand dollars, payable to the State of Kansas, and conditioned for the faithful discharge of his duties Shall subscribe aS Treasurer, and shall take and subscribe an oath or affirmathoath of officetion to support the Constitution of the United States and the Constitution of the State of Kansas, and faithfully to discharge shall be deposi- the duties of his office; which bond and oath or affirmation ted. shall be deposited with the Secretary of State. Successors in of- SEC. 3. The successors in office of the first Treasurer of fice shall give bond. State shall, before entering upon their duties, give bond and do every other act as provided for in the preceding section. Legislature may SEC. 4. The Legislature may, at any time during the conrequire additionalsecurity. tinuance in office of the Treasurer, require him to give such additional security as they shall deemn necessary for the complete security of the State. Shall keep accu- SEC. 5. The Treasurer shall keep an accurate account of the rate accounts, specifying per- receipts and disbursements at the treasury, in books provided elons, time, account, &c. for that purpose, at the expense of the State, in which he shall specify the names of persons from whom received or to whom paid, on what account the same is received or paid out, and the time of such receipt or payment. What treasurer SEC. 6. The Treasurer shall receive, in payment of public shall receive in payment of pub- dues, the warrants drawn by -the Auditor of State, in conformity lie dues. with the laws of the State, or redeem the same if there be money in the treasury appropriated for that purpose, and on redeeming such bill or receiving the same in payment, he shall cause the person presenting such bill to indorse the same; and the Treasurer shall write on the face of such bill " Redeemed," Certain duties, and shall enter in his books, in separate columns, the number of such bill, its date, amount, the name of the person to whom Cir. 205.] TREASURER. 893 payable, the date of payment and the amount of interest, if any, paid thereon. SEC. 7. That when any bill shall be presented to the Treas- Interest on bills urer for redemption, and there shall be no funds therein appro- rseftr thirtydays notice priated for that purpose, the Treasurer shall indorse thereonfrom treasurer. the date of its presentation, with his signature thereto, and whenever there shall be funds in the treasury for the redemption of bills so presented and indorsed, the Treasurer shall give notice of the fact in some newspaper published at the seat of government, and at the expiration of thirty days after the date of such notice the interest on such bill shall cease. SEC. 8,. The Treasurer shall, on the first Monday of March, Treasurer shallar June, September and December, annually, deposit in the office rants quarterly with auditor and of the Auditor of State, all warrants by him redeemed or re- take receipts. ceived in payment at the treasury, and take the Auditor'~ receipt therefor. SEC. 9. The Treasurer shall, annually, report to each branch Treasurer shall report to the of the Legislature, on the third day of their session, and to the legislature. Governor whenever by him required, the state of the public accounts and the funds, exhibiting the amounts by him received, the amount paid out during the preceding year, and the balance remaining in the Treasury. SEC. 10. The Treasurer shall, as often as required, submit'Shall submit his his books, accounts, vouchers and the funds in the treasury, to touchePrs, c to, the inspection of the Legislature, or any committee thereof ap-the legislature. pointed for that purpose. SEC. 11. If in any instance, the Treasurer shall neglect to Shall beheold.t countable for the call to account, as directed by law, any delinquents wherebyl~o by delinthe public revenue may suffer loss, he shall be held and deemed accountable for the sums due by such delinquents, to all intents and purposes, as if the same had actually been paid into his office. SEC. 12. If, at any time, it shall appear from the accounts of the Treasurer, the Auditor, or in any other way, that the Treas- Statemmay obtain judgment urer has not accounted for and paid over the public moneys of against treasurer for moneys not the State as directed by law, the State may move for and obtain accounted for. judgment against the Treasurer and his sureties, in any court of record, first giving to the persons, against whom such mo- Sureties are equally liable tion shall be made, five days' notice of the time and place,with treasurer. when and where such motion will be made, and said Treasurer shall be liable to a criminal action, and, upon conviction, shall be punished by imprisonment at hard labor for a term not less Tilmaialeto a criminal action. than five nor more than twenty years. 57 894 SCRIP. [CH. 206. In case of insol- SEC. 13. If any Treasurer, or other person indebted to the pailld, notwit State, shall become insolvent, the debt of the State shall be paid attadmentg n first of all debts, notwithstanding any attachment against his effects, or any voluntary assignment thereof to pay debts, or for other purposes. Shall procure a SEC. 14. The Treasurer shall procure a seal of office, with seal. such devices thereon as the Treasurer and Governor deem most suitable. Moneys shall be SEC. 15. All moneys that may be due the treasury, and which gold or silver. shall be paid to the Treasurer on that account, shall be either gold or silver. Shall give dupli. SEC. 16. When any money is paid into the treasury, the cate receipts, Treasurer is required to give the person paying, receipts in duplicate, stating the fund to which the money belongs; one of which may be kept by him and the other must be delivered to the Auditor, in order to obtain the proper credit, and the amount shall be charged to the Treasurer. When and how SEC. 17. This act shall be published immediately after its to take effect. passage, in some newspaper published at the capital, and shall take effect and be in force from and after its publication. Approved April 26, 1861. CHAPTER CCVI. (Session 1862.) AN ACT to Punish by Fine the County and State Treasurer for Dealing in Scrip. Be it enacted by the Legislature of the State of Kansas: Unlawful for SECTION 1. It shall be unlawful for any State or county State and county treasurers to treasurer or his deputy, to buy, sell trade or traffic in any deal in scrip. county or State scrip with gold, silver or money collected by said officers for the State, county, township or any city. Penalty. SEC. 2. That any person violating this act shall be deemed guilty of a misdemeanor, and upon conviction thereof, by indictment in the district court, [shall be fined] in any sum not to exceed five thousand dollars and be removed from office. SEC. 3. This act to be in force from and after its passage. Approved March 5, 1862. Cu. 207.] TRESPASSES ON SCHOOL LANDS, 895 CHAPTER CCVIi. (Chapter XCI, Acts 1861.) An ACT to Prevent and Punish Trespasses on School Lands. Be it enacted by the Legislature of the State of Kansas: SECTION 1. If any person shall cut down, injure, destroy or No person shall carry away any tree or trees growing upon any school lands, rchtol lands. that are or may hereafter be set apart for the use of schools, colleges or the State university, or cut, destroy or carry away any wood, standing or being upon, or growing on any such school, college or university land, or shall dig up, quarry or carry away any stones, ore or mineral, lying or being upon such lands, the person committing such trespass shall be deemed guilty of a misdemeanor, and may be indicted and Shallbe guilty of a misdemeanfined in a sum not less than double the amount of damages or. proved to have been committed, and not exceeding [one] thousand dollars, and confined in the county jail not less than one How punished. month and not more than six months. SEc. 2. Whenever complaints shall be made in writing, Justicemay issue warrant anu and upon oath, to any justice of the peace, that any person has bring offender violated the provisions of the preceding section of this act, it shall be the duty of such justice to issue his warrant, under his hand, reciting the substance of the complaint and commanding the officer to whom it is directed, forthwith to apprehend the person so complained of and bring him before such justice. SEc. 3. Upon such person being brought before such jus- Dcty of theju-. tice, it shall be the duty of the justice to examine the complainant and the witnesses which either party may produce;. and, if it shall appear to the satisfaction of the justice that the person complained of is probably guilty, he shall require such person to enter into recognizance, in such sum, not exceeding two thousand dollars, with two or more sufficient securities, as such justice may direct, to appear at the next term of the district court, and in default of such recognizance, the justice In default of shall commit such person to jail to await the action of thel may com next district court. SEC. 4. It shall be the duty of each court having criminal jurisdiction, to give this act in charge, especially to the grand jury, at each term. SEC. 5. It shall be the duty of the county superintendent of 896 TRESPASSES, CERTAIN [Cu. 2089 Who ishall tke public instruction, the district directors, clerks and treasurers, passers. and all sheriffs and constables, to take notice of all trespasses committed on school lands in their respective counties, and immediately file a complaint against any person violating this. act, before the proper authorities. ConLty atnd S- SEC. 6. It shall be the duty of the county or district attortrict attorney shallprosecute. neys, in their respective counties, to prosecute all persons charged with the violation of this act. Damages shall SEC. 7. All damages, fines and forfeitures, collected under go to school fund the provisions of this act, shall be paid into the county treasury for the use and benefit of the common school fund. Takeeffectwhen SEC. 8. This act shall take effect and be in force from andC after its publication. Approved June 4, 1861.'3CHAPTER CCVIII. (Chapter CXXVIII, Acts 1859.) AN ACT to Prevent certain Trespasses. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: Persons commit- SECTION 1. If any person shall cut down, injure or destroy, ting depreda- tions shall pay or carry away any tree, placed or growing for use, shade or treble damages. a t r o woo ornament; or any timber, rails or wood, standing, being or growing on the land of any other person; or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mould, roots, fruits or plants; or cut down or carry away grass, grain, corn, flax or hemp in which he has no interest or right, standing, lying or being on land not his own; or shall knowingly break the glass or any part of it, in any building not his own; the party so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs. Penalty for SEC. 2. If any person shall voluntarily throw down or open throwing down or.open bars, any doors, bars, gates or fences, and leave the same open or down, other than those that lead into his own inclosure, he shall pay to the party injured the sum of five dollars, and do uble the amount of damages the party shall sustain, by reason of such doors, bars, gates and fences having been thrown down or opened, with costs. CAH. 209.] TRUSTS AND POWERS. 897 SEC. 3. All penalties contained in the preceding section Offndri may be sued or indicted. mnay be recovered by action, founded on'this statute, or by indictment, at the option of the party injured, in any court having jurisdiction of the same; and, when the proceeding is by indictment, such penalties shall be paid into the county treasury. SEc. 4, This act to take effect and be in force from and after the first day of June next. Approved February 10, 1859. CHAPTER CCIX. (Chapter LXXIII, Laws 1858.) AN ACT Concerning Trusts and Powers. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SECTIoN 1, That no trust concerning lands, except such as Trusts concern. ing lands shall may arise by implication of law, shall be created, unless in be created in writing. writing, signed by the party creating the same, or by his attorney thereto, lawfully authorized in writing. SEC. 2. That no such trust, whether implied or created,No such trust shall defeat the title -of the purchaser for a valuable consider- title.,ation, and without notice of the trust. SEC. 3. That the record of such trust, in the proper county, Record of such trust shall be shall be deemed actual notice thereof to every person claiming deemed notice thereof. under a conveyance made or lien created, after such recording. SEC. 4. That no person, beneficially interested in a trust for No person interested can dispose the receipt of the rents and profits of lands, can dispose Of of such interest unless. such interest, unless the right to make disposition thereof is conferred by the instrument creating such trust; but the interest of every person for whose benefit a trust for the [payment of a sum in gross is created, is assignable. SEC. 5. That every sale, conveyance, or other act of a trus- Sales in contra vention of a tee, in contravention of a trust shall be void. trust void. SEC. 6. That when a conveyance for a valuable considera-When conveytion is made to one person, and the consideration therefor paid anc is void. by another, no use or trust shall result in favor of the latter,'but the title shall vest in the former, subject to the provisions of the next two sections. SEc 7. That every such conveyance shall be presumed 898 TRUSTS AND POWERS. [CH. 209. woncodveym frandulent, as against the creditors of the person paying the fraudulent. consideration therefor; and where a fraudulent intent is not When fraudu- disproved, a trust shall in all cases result in favor of prior lent intent is not disproved, the creditors, to the extent of their just demands, and also in favor trust results in favor of prior of subsequent creditors, if there be sufficient evidence of fraudcreditors. ulent intent. When the pro- SEC. S. That the provisions of the section next before the visions not to extend toahso- last shall not extend to cases where the alienee shall have lute conveyance in his own name taken an absolute conveyance in his own name, without the consent of the person with whose money the consideration was paid; or where such alienee, in violation of some trust, shall have purchased the land with moneys not his own; or where it shall be made to appear that, by agreement, and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land, or some interest therein, in trust for the party paying the purchase money, or some part ttlereof. Parties paying SEC. 9. That no person who shall, in good faith, pay momoney to a trustee not respon- ney to a trustee, authorized to receive the same, shall be resible for his act. sponsible for the proper application of such money, nor shall Fraud on the any right or title, derived by him from such trustee, in conpart of trustee b not toinvalidatesideration of such payment, be called in question, in consetitle. quence of misapplication by the trustees of such money. When court SEC. 10. That upon the death of a sole or surviving trusshall appoint alccessor. tee of an express trust, the same shall vest in the court having jurisdiction thereof, and such court shall forthwith appoint a successor, in whom the trust shall vest. Court may ac. SE. 11. That upon petition of any trustee of an express cept resignaCions.: trust, a court having jurisdiction may accept his resignation and discharge him from the trust, upon such terms as the rights of the persons interested in the execution of the trust may require. When trustees SEC. 12. That trustees having violated or attempted to viomay be removed late any express trust, or becoming insolvent, or of whose solvency or that of their sureties, there is reasonable doubt, or for other cause, in the discretion of a court having jurisdiction, may, on petition of any person interested, after hearing, be removed by such court; and all vacancies in express trusteeships, may be filled by such court. When the title SEC. 13. That a conveyance or devise of lands to a trustee, is void as to trustee, and title whose title is nominal only, and who has no power of dispovests in bene- manage f such lands, ciary. sition or management of such lands, is void as to the trustee, -H. 210.] VACANCIES. 899 and shall be deemed a direct conveyance or devise to the beneficiary. SEC. 14. That a grantor of lands, reserving an absolute Whenrevocation is reserved, title power of revocation, shall be deemed an absolute owner, as lute in grantorab regards creditors and purchasers. SEC. 15. That no disposition by virtue of a power shall be Exercise of unauthorized powvoid on the ground that it is more extensive than was author- or not to destroy actual power ized by the power, but every estate or trust so created, so far created. as embraced by the terms of the power, shall be valid. SEc. 16. That a general and beneficial power may be given Woman's rights to a married woman to dispose of or devise, without the concurrence of her husband, lands conveyed or devised to her in fee. SEC. 17. That every power, beneficial or in trust, shall be Trusts irrevocable without a reirrevocable, unless an authority to revoke it is reserved in the erste imetade in instrument creating the same. SEC. 18. That where a power to sell lands shall be givenolpowran ton n to the grantee, in any mortgage or other conveyance intended mortgages. to secure the payment of money, the power shall be deemed a part of the security, and shall vest in any person who shall become entitled to the money so secured to be paid. SEC. 19. That the provisions of this act relative to powers Not to extend to specific powers shall not extend to a simple power of attorney to conveyof attorney to -.,S~ sell for another. lands, in the name and for the benefit of the owner. Approved February 6, 1858. CHAPTER CCX. (Chapter XCIII., 1861.) AN ACT to provide for filling vacancies in the Office of County Assessor. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That the board of county commissioners for their Board of county commissioners respective counties, shall have power and it is hereby lmadehave power oto fill vacancies. their duty, to fill, by appointment, any vacancy in the office of county assessor that now does exist or that may hereafter exist, and that the chairman of the board of county commissioners, Chairman of board has power where a vacancy may exist, shall have power to call a special to call special meeting of the board for the purpose of filling such vacancy. SEC. 2. This act to take effect and be in force from and after When and how to take effect. its publication in some newspaper published in the city of To 900 WEIGHTS AND MEASURES. [CH. 211. peka, and the Secretary of State is hereby directed to cause the same to be published immediately after its approval by the Governor. Approved June 4, 1861. I hereby certify that the above became a law by publication in the "State Record" at Topeka, on the 15th day of May, 1861. J. W. ROBINSON, Secretary of State. CHAPTER CCXI. (Chapter IXXV., 1858.) AN ACT Regulating ~Weights and Measures. Be it enacted by the Governor and Legislative Assembly of the Territory of _Kansas: Clerk of each SECTION 1. That the clerk of each tribunal transacting county county tribunal shall provide business shall provide, at the expense of the county, one meameasures. Size of measures sure of one foot or twelve inches, English measure; one measure of threefeet or thirty-six inches, English measure, denominated one yard; one half bushel measure, which shall contain one thousand seventy-five and one-fifth cubic inches, denominated dry measure; one gallon measure, which shall contain two hundred and thirty-one cubic inches; and one half gallon measure, which shall contain one hundred and fifteen and oneShall also pro. half cubic inches; also, one set of weights, called avoirdupois vide one set of weights. weights; and one seal, with initials of the county inscribed thereon, which measures, weights and seals shall be kept by the clerk of the tribunal aforesaid. When weights ]. SEC. 2. That so much [soon] as the weights and measures and measures are phaollgied cltiek, are provided, the said clerk shall cause notice thereof to be lng by wforegh given at the court-house door for two months, and any person and measuresr weight, and buy and not correspond- whO shall knowingly keep any measure or weight, and buy and ing with those in clerk's offce. sell any commodity whatsoever, by such weights or measures as shall not correspond with the weights and measures deposited in the clerk's office, shall for every such [offence,] forfeit and pay to the party injured, ten dollars, to be recovered by action of debt, before any justice of the peace of the county. Clerk shall seal SEC. 3. That the clerks aforesaid shall, with the seal aforeall weights and measures. said, seal all weights and measures presented to them for that purpose, correspond[ing] with the county standard. CH. 212.] WEIGHTS AND MEASURES. 901 SEc. 4. That the hundred weight shall consist of one hundred pounds, avoirdupois, and twenty such hundred shall constitute a ton. SEC. 5. That whenever wheat, rye, or Indian corn shall beAggregate weight to wheat, sold by the bushel, and no special agreement as to the measure- rye, &c., per bushel. ment or weight thereof shall be made by the parties, the bushel shall consist of sixty pounds of wheat, and fifty-six pounds of rye, and fifty-six pounds of Indian corn, and fifty pounds of buckwheat, and forty-eight pounds of barley, and oats thirty- [Amended, ch. five pounds, and beans sixty pounds, and clover seed sixty21-1] pounds, and potatoes sixty pounds, and flax seed fifty-six pounds, onions fifty-seven pounds, salt fifty pounds, castor beans forty-six pounds, hemp seed forty-four pounds, timothy seed forty-five pounds, ox bran twenty pounds, dried peaches thirtythree pounds, dried apples twenty-four pounds, stone coal seventy pounds. This act to take effect and be in force from and after its passage. Approved February 12, 1858. CHAPTER CCXII. (Session, 1862.) AN ACT Regulating Weights and M/easures. Be it enacted by the Legislature of the State of Kansas: SECTION 1. That whenever any of the following articles shall Weight per bushel of wheat, be sold by the bushel, and no special agreement as to the weight rye, &o. LSee ch. 211.] or measurement thereof shall be made by the parties, the bushel shall consist of the following number of pounds avoirdupois, to wit: wheat sixty pounds, rye fifty-six pounds, Indian corn in the ear seventy pounds, Indian corn shelled fifty-six pounds, buckwheat fifty pounds, barley forty-eight pounds, oats thirtytwo pounds, beans sixty pounds, clover seed sixty pounds, potatoes sixty pounds, flax seed fifty-six pounds, onions fiftyseven pounds, salt fifty pounds, castor beans forty-six pounds, hemp seed forty-four pounds, timothy seed forty-five pounds, dried peaches thirty-three pounds, dried apples twenty-four pounds, stone coal eighty pounds. SEC. 2. That this act shall take effect and be in force from and after its publication in the statute book. Approved February 27, 1862. 902 WIDOWS AND MINORS-WIDOWS. [CH. 213-214. CHAPTER CCXIII. (Chapter XCVII., 1861.) AN ACT providing for the Protection of Widows and Minor Children. Be it enacted by the Legislature of the State of Kansas: eThpamuntX oe- SECTION 1. That in addition to the amount now allowed abcution shall be solutely to widows,in section eighty-two of an act entitled "An set apart for i ion e wordchldandmiAct respecting executors and administrators;" the amount of Amended.] Seecnh. 91-82.] personal property now exempt from execution under an act See oh. 92-11.] entitled "An Act exempting from sales upon execution or other process," approved February 7,1859, shall be set apart for the An nbe, tryin widow and minor children;n inventory of which shall be made shall be filed in probatecourt. by the executor or administrator, and filed in the probate court. Thewidefowrshall SEC. 2. The widow shall apply for such property named in properdty sha the preceding section, before the same be distributed or sold, be distributed. Shall not be lia- and the property so delivered shall, in no case, be liable for the ble for husband's debts. payment of the debts of the deceased husband. Take effect when SEC. 3. This act to take effect from and after its publication. Approved June 5, 1861. CHAPTER CCXIV. (Chapter XCVIII, 1861.) AN ACT for the Relief of Widows. Be it enacted by the Legislature of the State of Kansas: Time of election SECTION 1. That in case a widow has heretofore or shall extended to widows who have hereafter fail to elect, within six months after the death of her failed or neglected to elect husband, to use, for her benefit,:ei the provisions of an under the pro- t visions of the act entitled "an act relating to dower," approved February book s. 27, 1860; or an act entitled "an act to protect the rights of married women, and in relation to the liabilities incident to the marriage relation," approved February 7, 1859; or an act entitled " an act concerning descents and distributions," approved February 8, 1859; she shall be presumed to have elected to take under, and shall be entitled to all the benefits of the act entitled " an act to protect the rights of married women, and in relation to the liabilities incident to the marriage relation," approved February 7, 1859. Ci. 215.] WILLS. 903 SEC. 2. This act shall take effect and be in force from and Takeeffect when after its publication once in some newspaper published in Topeka. Approved May 20, 1861. I hereby certify that the above became a law by publication in the "State Record," at Topeka, May 21, 1861. J. W. ROBINSON, Secretary of State. CHAPTER CCXV. (Chapter CXXXI, 1859.) AN ACT regulating Wills. Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas: SEcTION 1. Any person of full age and sound mind may dispose, by will, of all his or her property, except what is sufficient to pay his or her debts, or what is allowed as a homestead, or otherwise given by law as privileged property. SEC. 2. Property subsequently acquired by descent or pur- Property subse. quently acquirchase, may also be devised, when the intention is clear anded. explicit. SEC. 3. Personal property to the value of three hundred Verbal wills. dollars may be bequeathed by a verbal will, if witnessed by two competent witnesses. SEC. 4. A soldier in actual service, or a mariner at sea, If a soldier or may dispose of all his personal estate by a will so made and mke verbal witnessed. A verbal will, under this and the preceding section, to be valid, must be proved within one year after the death of the testator. SEC. 5, All other wills, to be valid, must be in writing, 0ther willstobe in writing. witnessed by two competent witnesses, and signed by the testator, or by some person in his presence, and by his express direction. SEC. 6. No subscribing witness to any will can derive any witn3sses. benefit therefrom, unless there be two disinterested and competent witnesses to the same. SEC. 7. But if;, without a will, he would be entitled to any Exception. portion of the testator's estate, he may still receive such portion to the extent in value of the amount devised. SEC. 8. Posthumous children, unprovided for by the father's Pos,thmous SEC 8.Poshumus hilrenchildren. 904 WILLS. [CiH. 215. will, shall inherit the same as though no such will had been made. Children. SEC. 9. The amount thus allowed to a posthumous child, as well as of that of any other claim which it becomes necessary to satisfy, in disregard of, or in opposition to the contemplation of; the will, must be taken rateably from the interest of heirs, devisees, and legatees. Definition. SEC. 10. The word devisee, as used in this chapter, shall, when applicable, be construed to embrace legatees, and the word "'devised" shall, in like cases, be understood as comprising the force of the word bequeathed. Deviseeo SEC. 11. If a devisee die before the testator, his heirs shall inherit the amount so devised to him, unless from the terms of the will a contrary intent is manifest. Revocation. SEC. 12. Wills can be revoked, in whole or in part, only by being cancelled or destroyed by the act or direction of the testator, with the intention of so revoking them, or by the execution of subsequent wills. Cancellation. SEC. 13. When done by cancellation, the revocation requires to be witnessed in the same manner as the making of a new will. Depositofwills SEC. 14. Wills, duly sealed up and indorsed, may be dewith clerk of probate coort. posited with the clerk of the probate court, whose duty it is to file and preserve the same until the death of the testator, unless they themselves sooner demand them. Of wills be SEC. 15. Any person having the custody of a will shall, at Wills to be brought into the first stated term of the court after being informed of the open court when death of the testator, bring the same into open court, when it shall be publicly read. Failnre. SEC. 16. If he fails to do so, after receiving reasonable notice, he may be brought in by rule and attachment, and committed to jail until he complies, and shall be further liable to any person aggrieved for all the damages sustained by such failure. Probate. SEC. 17. After being thus produced and read, a day shall be fixed by the court for proving the same, which may be postponed, from time to time, at the discretion of the court. Notice. SEC. 18. Such notice thereof as the court directs shall be immediately given to all persons interested in the matter. Recorded. SEC. 19. After being proved and allowed by the probate court, the will, together with the certificate hereinafter required, shall be recorded in a book kept for that purpose. Cu. 216.] TAKING EFFECT OF LAWS. 905 SEc. 20. Wills proved and allowed in any other State orForeign wills to be allowed and country, shall be allowed and recorded in any county in this recorded on pro. duction of copy Territory in which it may be desired to use them, upon thethere~f production of a copy thereof to the proper probate court, duly authenticated by the attestation of the clerk of the court in which such bill [will] was proved, together with the certificate of the judge or presiding officers that such attestation is in due form of law. If there be no clerk, such attestation may be made by the judge or presiding officer; and, in all cases, if the clerk or officer making such attestation have a seal of office, such seal shall be annexed to the attestation. SEC. 21. Wills shall not be carried into effect unless thus Pbate conclusive, allowed, and such allowance is conclusive as to the due execution of the will, unless set aside by the original or appellate proceeding in the district court. SEC. 22. When proved and recorded, the court shall direct Copy to oexecute. an authenticated copy of the will to be placed in the hands of the executors therein named, or otherwise duly appointed. SEC. 23. If no executors are named therein, or if the ex-If no executors. ecutors named fail to qualify and act, it shall be retained on file until an executor or administrator is appointed and qualified, in the manner prescribed by law. SEC. 24. Wills, when proved and allowed, shall have a Certficate shall SE-. 24. Will~l 2 be attached to certificate thereof indorsed or annexed thereto, signed by thewills clerk, and attested by the seal of the court; and every will so certified, or the record thereof, or a transcript of such record, duly authenticated, may be read in evidence in all courts within this Territory, without further proof. SEC. 25. This act to take effect and be in force from and after the first day of June next. Approved February 9, 1859. CHAPTER CCXVI. (Chapter LXVII, Acts 1858.) AN ACT to Provide for the taking Effect of Laws. Be it enacted by the Governor and Legislative Assembly oj the Territory of Kansas: SECTION 1. That all laws hereafter passed by the Legislative All laws shall take effect from Assembly of the Territory of Kansas, shall take effect from and after the. last day of the session. 906 TAKING EFFECT OF LAWS. [Ca. 216 and after the last day of the session at which they were passed, unless a different period of time shall be specified, and that all prior laws inconsistent with any law passed, shall be construed to be repealed without a clause to that effect. SEC. 2. That all laws or parts of laws inconsistent with this law, be and the same are hereby repealed. This act to take effect and be in force from and after its passage. Approved February 9, 1858. LAWS NOT PUBLISHED IN THIS VOLUME. 907 LIST OF LAWS OF A GENERAL NATURE NOT PUBLISHED IN THIS VOLUME. ACTS OF 1857. CHAPTER.- An act more particularly to define the boundaries of the several counties in Kansas Territory, approved February 20, 1857. ACTS OF 1859. CHAP. 32.-An act to authorize the Council and House of Representatives to punish for contempts and for other purposes, approved February 11, 1859. CHAP. 79.-An act providing for the incorporation of turnpike road companies, approved February 11, 1859. ACTS OF 1860. CHAP. 24.-An act to provide for the incorporation of building loan associations, approved February 25, 1860. ACTS OF 1861-TERRITORIAL. CHAP. 7.-An act to prevent the payment of certain bonds, purporting to have been issued under the provisions of an act entitled "An act to provide for funding the indebtedness of the Territory, approved February 11, 1859, and certain warrants and certificates purporting to have been drawn under the provisions of an act entitled "An act to provide for the adjustment and payment of claims," approved February 7, 1859, and an act supplementary to an act entitled "An act to provide for the payment of claims," approved February 11, 1859, and to prevent the issuing or putting into circulation of any bank bills or notes purporting to be a promise to pay money or currency, based upon any such bonds, became a law without the approval of the Governor, February 2, 1861. CHAP. 21.-An act to legalize certain official acts of notaries public. ACTS OF 1861-STATE. CHAP. 6.-An act to authorize the negotiation of one hundred and fifty thousand dollars of the bonds of the State of Kansas, to defray the current expenses of the State, became a law May 3, 1861. CHRAP. 7.-An act supplementary to " An act to authorize the negotiation of one hundred and fifty thousand dollars of the bonds of the State of Kansas, to defray the current expenses of the State, became a law June 5, 1861. 908 LAWS NOT PUBLISHED IN THIS VOLUME. CHAP. 40. —An act providing for the location of the lands granted by Congress to the State, approved June 3, 1861. CHAP. 41.-An act entitled "An act providing for the levy, sale and forfeiture of lands belonging to the incompetent Wyandotte Indians, approved May 7, 1861. CHAP. 42.-An act providing for the leasing of lands belonging to the incompetent Wyandotte Indians, approved May 5, 1861. CHAP. 53.-An act to authorize the State of Kansas to borrow money to repel invasion, suppress insurrection, and to defend the State in time of war, approved May 8, 1861. CHAP. 60.-An act to provide for the appointment of commissioners to locate a State penitentiary, and to define their duties and fix their compensation, approved May 28, 1861. CHAP. 62.-An act relating to all railroad companies whose charters have not been declared forfeited, became a law June 24, 1861. CHAP. 64.-An act to provide for the removal of the records and papers of the courts of the late Territory of Kansas, to the courts established by the constitution, became a law April 23, 1861. ETR R-ATA. Page 198, Sec. 444, 34th line, omnit "or stock in trade,'? and insert it in 4th line after "lands." 219, Sec. 544, 6th line, for "same" read "cause." 238, Sec. 1, 6th line, after "Territory" insert "Judges of the [District Courts.? 242, Sec. 30, 5th line, after "County" insert "or of the County." 292, Sec. 35, 9th line, for "six" read "three." 299, last line, after "use" insert "or shall wilfully kill such animal with intent to steal or convert to his own use."' " 347, last line, for "'12" read "15." 486, 3d line, for "less" read "unless." 502, 1st line, after "refuse" insert "to take the oath prescribed by the twelfth section of this act, or shall refuse."' 524, Sec. 77, 3d line, for "may" read "might." 526, Sec. 93, 3d line, for "evidencedcl" read "evidence." " 560, 32d line, after "cents" insert "for copy of order to appraisers, ten cents.' 627, Sec. 58, 2d line, for "'careful" read "certified." 732, last word of title to Chapter 160, read "Partners." 921 and seq., for "CIVIL PROCEDURE" read "CODE OF CIVIL PROocEDURE." 961 and seq., for "CRIMINAL PROCEDURE" read "CODE OF CRIMINAL PROPROCEDURE.'i " 990 to 995, should be headed "CORPORATIONS." 990 to 995, "'ITIES" and "TOWNS and VILLAGES" should be sub-headings. TOPEKA, KANSAS, April 30, 1862, V Secretary of State's Office. I hereby certify that I have carefully examined each and every law published in this volume, and that the copies furnished the printer are true copies of the original enrolled bills. JOHN W. ROBINSON, Secretary of State. JUNE 30, 1862. I hereby certify that this volume is made up from copies of the acts and resolutions furnished me by the Secretary of State, and that I have carefully compared the printed proofs with said copies, and that they are true copies thereof. J. IH. BENNET, Printer. 58 INDEX. PAGE ACADEMIES. How may be incorporated. See Corporatiozts 360 ACCEPTANCE OF BILL OF EXCHANGE. See Bonds, Notes, TCc. ACCOUNTS OF CURRENT EXPENSES. How to be Authenticated............. 100 See Counties and County Officers. ACKNOWLEDGMENTS. Manner of taking and authenticating. See Conveyances. County Clerks may take............................................. 79 Mayors of Cities may take................................. 392 of Tax Deeds to be made by County Clerk............................. 877 Falsifying Certificate of. See Crimes and Punishments Taken before certain persons legalized...........................79 — 83 ACT OF ADMISSION. Kansas admitted on an equal footing with the other States................ 75 Boundaries same as in Ordinance of Constitution........................ 75 Shall have one Representative in Congress.............................. 76 Indian Title shall not be disturbed.................................... 76 This act not to bind the United States to anything contained in Ordinance of Constitution.................................................... 76 School Sections granted............................ 76 Lands granted for University................................ 76 " " Public Buildings.................................... 77 Salt Springs....................................................... 77 Five per cent. of Sales of Public Lands............................... 77 State not to tax lands of United States............................... 77 Laws of United Sta:es to be in force................................... 77 District Court of United States........................................ 77 " " " Terms of............................... 78 Disposition of Cases in Supreme Court of United States from Courts of Kansas 78 ACTIONS IN CIVIL CASEs. See Code of Civil Procedure. on Mechanics' Liens................................................. 682 for Mesne Profits barred against Occupying Claimants.................... 123 against Boats, limitation of........................................... 111 to survive when death is caused by wrongful act, neglect or fault of another... 80 ACTS, CERTAIN, REPEALED................................................. 81 Official, of certain persons, legalized................................. 79 83 ADJUTANT GENERAL'S DEPARTMENT, Appropriation for.............. 96 912 INDEX. PAGE ADMEASUREMENT OF WIFE'S PORTION. How made.............. 469-470 See Descents and Distribution. of Dower, proceedings in...................4.......................... 81 ADMINISTRATION. See Executors and Administrators. ADMISSION OF KANSAS INTO THE UNION. See Act of Admission. ADULTERY. See Crimes and Punishments. may debar Wife from having her Jointure or Dower.................... 480 ADVANCEMENT. See Descents and Distributions:....................... 468 ADVERTISEMENTS, LEGAL........................................... 566 Where shall be printed.............................................. 567 AFFIDAVIT IN CIVIL ACTIONS. See Code of Civil Procedure. See Justices of the Peace. AFFIRMATIONS. See Oaths. AGRICULTURAL IMPROVEMENTS to the amount of $500 exempt from taxation.. 874 Implements exempt from taxation.................................... 875 Society, State, County and Town. See Societies. ALIENS AND CITIZENS, no distinctions allowed between...................... 51 ALIMONY. See.Divorce and Alimony. ALLEGIANCE, Oath of, Voters may be required to take...................... 490 ALLOWANCE TO WIDOW. See Executors and Administrators. See Widows and lMinors. AMENDMENTS. Laws shall not be amended unless the new act contains the sections amended............................................... 56 ANDERSON COUNTY, Location of County Seat of.......................... 438 ANSWER. See Code of Civil Procedure. See Liens. APPARATUS FOR SCHOOLS, tax may be voted for.807 APPEALS from Probate Court, and Justices of the Peace, shall be to District Court 58 See Constitution. in Criminal Cases. See Code of Criminal Procedure. APPORTIONMENT, for State Senators.................................... 84 for Representatives.................................................. 85 See Conshtitution. APPRAISEMENT OF REAL ESTATE, sold under execution. See RealProperty. of property of estates of deceased persons. See Executors and Administrators. of Homestead. See Erxempltions. of Strays. See Strays. APPRENTICES. CHAPTER 8. AFFIDAVIT to be made by master....................................... 90 AGE Of, to be inserted in Indenture.................................. 91 APPRENTICE. Minors may bind themselves, as by consent of father, &c....... 89 may bind themselves, by consent of Probate Court......................90 may be bound by mothers............................................ 90 poor children may be bound as, by Probate Court........................ 90 orphans or minors, by guardian....................................... 90 complaints of, proceedings on.............91............................ 91 misconduct of; proceeding............................................. 92 enticing away, penalty for.......................................92 harboring, penalty for................................................ 92 APPRENTICES, may be bound by executor.............................92 ~~~~~~~~~~~~.~~~~~~~92~ INDEX. 913 APPRENTICES, continued. PAGE removing of, prevented........................... 92 desertion, cause of action against...................................... 94 not to be removed from State.......................................... 92 Court may discharge, when...................................... 91 Probate has jurisdiction in matters relating to............................ 465 limitation of actions against.....................9................... 94 proceedings to prevent removal of, from the State............t e.... 93 embezzlement by....................................... 301 COMPLAINTS OF APPRENTICES. How heard and determined............... 91 COMPLAINTS OF MASTERS. How heard and determined..................... 92 PROBATE COURT may bind poor children.................................. 90 to see that indentures and covenants of apprenticeship are fulfilled, &c....... 91 to see that apprentice is not ill-used................................... 91 may dissolve contracts of apprenticeship................................ 91 COVENANTS, in indenture, specified.............................. 91 Court to see that they are fulfilled...................................... 91 DAMAGES, may be recovered by master.................................... 94 DESERTION, caluse of action against Apprentice............................. 94 ENTICING AWAY APPRENTICES, penalty................................... 92 EXECUTOR may bind infant............................................. 93 FATHER incapable of consenting to bind apprentice, mother may............... 90 incapacity of, how established......................................... 90 GUARDIAN may bind orphan or minor.......................i............. 90 HARBORI-NG apprentice, penalty for......................................... 93 INDENTURE of Apprenticeship, covenants in............................... 91L Courts to see that they are fulfilled..................................... 91 survives to and a gainst.................................9....4..... 94 LIMITATION of actions against apprentices................................ 94 MISCONDUCT of apprentice, warrant to issue.............................. 92 proceedings on warrant.............................. 92 MASTER not to remove apprentice from State.............................. 93 complaint of, how heard and determined......................... 93 wishing to remove, may deliver up apprentice........................ 93 cause of action of, against apprentice................................... 94 REMOVING apprentice from State, proceeding to prevent.............. 93 WARRANT, to apprehend apprentice for misconduct, when to issue............. 92 proceedings on return of............................................. 92 See Poor. APPROPRIATION, for State Law Library $2,000............................ 95 for expenses Supreme Court, $1,500.............................. 94 to assist P. A. Emery, as teacher of the Deaf and Dumb, $500............ 95 for current expenses of 1861 and 1862.................................. 100 for Governor's salary and expenses.................................... 96 for Adjutant General's department.................................... 96 for Secretary of State....................................9........... 96 pay of members of Legislature, &c., for 1862............................ 101 additional for pay of members and officers of Legislature................. 96 for Treasurer's department........................................... 96 for Auditor's department................................... 96 914 INDEX. APPROPRIATION, continued. PAGE for Librarian department................. 96 for Superintendent of Public Instruction.............................. 96 for Attorney General's department.................................... 96 for Judiciary department........................................... 96 for Legislative department........................................... 96 for Legal expenses under order of Legislature........................... 96 for Reporter of Supreme Court........................................ 97 for transcribing record of Lands, District Recorder's offices................ 98 for Indexing laws and preparing marginal notes and references.............. 99 for expenses of trials of Impeachment.................................. 99 for selecting lands granted by the United States..................... 99 accounts for, how authenticated....................................... 100 Bills presented under appropriation act must exhibit detailed accounts....... 100 APPROPRIATIONS, sundry for expenses, &c................................ 97 ARABIC figures to be taken as part of the English language.................... 837 ARBITRATIONS, relative to division fences. See Fences. ARMORIES. See ll;litia. ARREST in civil actions. See Code of Civil Procedure. Members of the Legislature privileged from, when........................ 56 and examination of offenders. See Code of Criminal Procedure. See Justices of the Peace. ARTISAN shall have lien for what. See Liens. ASSAULTS, limitation of actions for. See Crimes and Punishments......... 127 ASSAULTS AND BATTERIES.- See Justices of the Peace. ASSESSMENT of taxes, to be made once in three years........................ 880 county treasurer shall make, of property omitted by assessor............... 412 ASSESSMIENT ROLLS. See Taxes. ASSESSORS shall make enrollment of persons subject to military duty............ 700 vacancy in office of, to be filled by county board, chapter 110. See Taxes. See Counties and County Oficers. ASSIGNEES of debtors to give bond to execute the trust....................... 102 bond of, must be deposited in office of register of deeds.................... 102 ASSIGNMENTS of debtors void, unless assignee be a resident of the State........ 102 may be made of mechanic's lien....................................... 682 ASSOCIATIONS, cemetery, how formed..................................... 117 ASYLUMS. See Poor. ATCHISON COUNTY, correction of tax books of........................... 440 ATTACHMENT. See Code of Civil Procedure. See Justices of the Peace. See Liens. of magistrates, for refusals to return examinations. See Code of Criminal Procedure. judges of the district court, may dissolve in vacation............... 454 homestead exempt from. See Exemptions. may be issued against persons refusing to deliver up property of estates...... 523 ATTORNEY GENERAL, duties of. See State Officers. ATTORNEYS, COUNTY, office of abolished............................... 106 ATTORNEYS, DISTRICT, term of office of............................ 105 shall preside in contested elections when probate judge is a party........... 508 are elected for each judicial district of the State....................... 105 INDEX. 915 ATTORNEYS, DISTRICT, continued. PAGE shall appear in district court fbr each county, and before justice's court when required........................... 105 shall advise county board without reward.............................. 105 shall receive no reward from prosecutor................................. 105 shall not be concerned as attorney, when............................... 106 not eligible to any judicial office...................................... 106 in case of vacancy, district judge shall appoint........................ 106 when absent, a temporary appointment may be made..................... 106 shall appear before grand jury, and examine witnesses and draw indictments. 106 may appoint deputies........................................ 106 shall have such fees as allowed by law.............................. 106 office of county attorney abolished.................................... 106 district attorney shall give bond, &c............................... 106 bond to be deposited in auditor's office............................... 107 duties of in criminal cases. See Code of Criminal Procedure. ATTORNEYS AT LAW, act relating to................................... 102 who may continue to practice........................................ 102 who may practice as........................................ 103 must take oath upon admission.................. 103 supreme court may admit on motion................................ 103 of any State or Territory may be admitted on motion................ 103 form of oath of........................................ I... 103 guilty of deceit or collusion, liable to be disbarred........................ 103 treble damages allowed against, when.................................. 103 may be required to prove authority to act...................... 103 has a lien on client's papers......................... 103 lien may be released by giving security................................. 103 supreme or district court may suspend................................. 104 causes of suspension of.............................................. 104 proceedings for suspension of......................................... 104 accused may plead or demur......................................... 104 plea of guilty, judgment recorded.................................... 104 appeal to supreme court............................................ 104 judgment of acquittal is final........................... 104 refusal to pay over to client, guilty of misdemeanor....................... 105 when lien is claimed, not liable to penalty.................. 105 not to be security in bond of administrator............. 509 how to answer for an infant, person of unsound mind, or person in prison..... 141 may subscribe pleadings, if the party does not........................... 142 when may verify pleadings........................................... 143 may obtain order for arrest of defendant............ 147 or replevin of property............................. 152, 153 or attachment................................................................ 155 or proceedings against garnishee....................................... 156 or an injunction.................................... 164 or arrest on execution..................................... 210 when competent as a witness........................................ 177 may waive in writing the issue or service on defendant of summon in error... 216 fees of, on mortgage foreclosed..................... 722 916 INDEx, ATTORNEYS AT LAW, continued. PIaG when disqualified from being witnesses............................... 237 when may be assigned to prisoner............ 454 See Code of Civil Procedure. AUDITOR, of State, duties of. See State Oficers. County, county clerk shall be ex oqcio................... 418 AUTHENTICATION of statutes, records, office papers, &c., chapter 17.......... 107 printed statute books of this Territory evidence of the private acts therein....'107 printed statutes and laws of other States, evidence....................107, 108 certified copies of statutes, evidence................................ 107 authorized printed act of Congress, evidence............................ 107 copies from such books certified by Secretary, evidence............. 107 public documents of Congress, evidence.......................... 108 copies of proceedings before justices of the peace.......................... 108 copies of files of Territorial [State] officers......................... 108 copies given by successor of justice of the peace................. 108 printed copies of-ordinances of cities............... 108 registers of marriages, births, &c.......................... 108 copies of above certified by pastor or clerk, &c................... 108 copies of official bonds........................... 108 copies of official contracts.....................................109 copies of bonds of executors, administrators, guardians, &c............ 109 court may require production of the original, when....................... 109 copy of translation of written instrument... 109 copies of papers recorded by register of deeds....................... 109 receiver's duplicate receipt proof of title against all but -holders of patent...... 109 receiver's signature presumed to be given.......... 110 if duplicate be lost, certificate of receiver evidence................ 110 copies from courts of foreign countries, how authenticated. See Code of Civil Procedure. BAIL shall not be excessive............................................... 50 all persons shall be admitted to, except for capital offences................. 50 in civil cases. See Code of Civil Procedure. in criminal cases. See Code of Criminal Procedure. See Crimes and Punishments. BALLOT BOXES, trustees of townships shall provide...................... 491 See Elections.'BANKING LAws must be submitted to the people............................ 67 may be amended or repealed......................................... 67 BANK, KANSAS VALLEY, charter amended, chapter 129. BANKS to -be established only by general laws.................. 67 security of, shall be stocks of the several States, deposited with the auditor.. 67 Auditor shall require additional security, when......................... 67 notes of, shall be redeemable in money of the United States................ 67 State shall not be a stockholder in..................................... 67 shall keep offices in convenient localities............................... 67 notes shall not be less than five dollars................................ 67 notes shall -not be less than one dollar................................. 74 BASTARDY. See Illegitimate Children. BENEVOLENT INSTITUTIONS to be established in the State............. 62 trustees of, to be appointed by the Governor and Senate................... 62 INIDEX. 917 LPAGe. BETTING. See Crimes and Punishments. BIGAMY. See ('rime s aln Punishments. BILL OF PARTICULARS. See Justices of the Peace. BILL, OF SALE. See Mortgages, Chattel. of exchange. See Bonds, Notes, 4pc. legislative, final passage of, must be by yeas and nays..................... 55 shall originate in the House of Representatives.................... -,.5 majority of all the members necessary to the passage of,............... 55 when to be signed by presiding officers and Governor..................... 55 if not returned within three days by Governor, to become laws.......... 55 must be read on three separate days, unless....................... 55 not to contain more than one subject......................... 56 how to be printed........................................ 575 BLIND, INSTITUTIONS FOR, to be established by the State...................... 62 BOARD OF CANVASSE RS upon organization-of new counties................. 436 BOARD OF EQUALIZATION. See Equalization Board. See Counties and County officers. BOATS. act regulating actions against.....................10.................. 1 liable for debts.................................... 110 liable for damages....................................... 110 liable for injuries... 110 liable for inries................................................ 110 claims against..................................................... 111 priority of claims on............................................ 111 action on, to be brought within one year.................. 111 liens attach from commencemnent of suit..............1.................... 11 petition, manner and form of...................................... 111 clerk of court or magistrate issue warrant............................... 111 summons issued....................................... 111 manner of serving warrant or summons................ 111 appearance for defense.............................................. 111 no continuance to plaintiff............................................ ll may be discharged, how.......................................... 11il approval of security...................................... 111 when execution issued against boat.................................. 112 when execution issued against securities.................. 112 sheriff may sell appendages of...................................... 112 sheriff may sell boat or share..................................... 112 appeal bond, effect of...........1................... 112 rights of plaintiff to sue...................1............................ 112 what may be alleged in action........................................... 112 if overloaded so as to drown.......................................... 289 burning, to defraud insurer........................................... 303 maliciously destroying or injuring........................ 304 See Ferries. See Crimes and Punishments. BOND. Term does not nec3ssarily imply seal. See interest of money. BONDS, &c., not t) be released on exchange from Territorial to State government... 69 of assignees, must be filed in office of Register of Deeds.................. 102 918 INDEX. — BONDS, NOTES AND BILLS OF EXCHANGE. PAGE. an act respecting them............................ 112 when negotiable................................................... 112 manner of transfer..................................... 112 defense allowed if transferred after due............................ 113 proof or notice of payment allowed if transferred before due........... 113 three days' grace allowed.................................... 113 indorsee may bring suit, when............................ 113 demand on three days of grace deemed due diligence and notice of non-payment 113 acceptance of bill of exchange must be in writing......................... 113 if acceptance on separate paper binds acceptor in favor of person to whom given only............................................................. 114 an unconditional promise in writing a good acceptance................... 114 holder may require acceptance on bill, a refusal to comply shall be deemed a refusal to accept.114 may recover damages of party refusing to accept after promise.............. 114 destroying bill or refusing to return it deemed an acceptance............... 114 FOREIGN NEGOTIABLE BONDS. protested for non-acceptance or non-payment, subject to ten per cent. damages 114 if drawn on any person in the United States, six per cent. damages.......... 114 action may be brought for protested bill against one or all parties liable...... 115 damages not recoverable when agreement made.......................... 115 parties sued, how designated........................................ 115 notarial protest prima facie evidence of refusal............................ 115 this act not to affect suits pending.................................... 115 penalty for forgery of............................................... 307 BORROWING MONEY. See Counties and County officers. IOUNDARIES, of Kansas Territory................................. 38 of the State of Kansas............................................... 75 BRECKENRIDGE COUNTY, name changed to "Lyon"......................... 444'BRIBERY, person guilty of shall not hold office................................ 60 See crimes. BRIDGE, Wyandott City authorized to purchase........................ 116:BRIDGE AND FERRY COMPANIES. How may become incorporated. See Corporations BRIDGE COMPANY, Kansas River, granted extension of time.............. 116.BRIDGES subject to mechanics' liens................................ 681 See Rfoads. -BUILDINGS, liens on. See Liens. i in which liquor is sold, liable for fines, &c., under Dram Shop Act........... 489 GANVASSERS. State Board of. See.Eections. county board of. kSee Elections. CAPITAL of Kansas Territory.................................... 45 of the State of Kansas temporarily located at Topeka................. 69 first legislature to submit permanent location of, to the people.............. 69 a block of land accepted for, from Topeka Association..................... 116 CATTLE, diseased or distempered, not to run at large........................ 839 two yoke of, exempted from taxation......... 875 INDEX. 919 CEMETERY ASSOCIATIONS. PAGE. how may be formed..................I.............................. 117 shall have a corporate name......................................... 117 trustees shall be divided, how........................................ 117 chairman and secretary shall sign and acknowledge a certificate showing the organization................................................... 117 certificate to be recorded in office of countyclerk......................... 117 when to be deemed legally incorporated................................. 118 may have a seal and sue and be sued.................................. 118 trustees shall manage affairs of,....................................... 118 may hold land not exceeding three hundred and twenty acres.............. 118 may convey for cemetery purposes..................................... 118 survey and plat to be recorded........................................ 118 deeds shall be signed by the president and secretary...................... 119 CENSUS, of Kansas Territory........................................ 40 of Kansas......................................................... 56 CERTIFICATES OF ACKNOWLEDGMENTS, requisites of. See Conveyances. of incorporation to be recorded by Secretary of State. See Corporations. CERTIORARI. Supreme Court may issue writs of, in criminal cases............. 450 CHALLENGES, peremptory, each partyentitled to three, in civil cases,............ 238 CHANCERY POWERS, Probate Court to have in relation to estates of lunatics and drunkards....................................................... 694 conferred upon courts under lien acts................................... 686 CHARITABLE AND BENEVOLENT INSTITUTIONS, to be established by the State.... 62 CHAIRMAN OF COUNTY BOARD. See Counties and County oicers. CHASE COUNTY, location of seat of justice................................... 440 CHATTEL MlonTGAGES. See Mortgages, Chattel. CHILDREN, one-half of estate of parents shall descend to..................... 697 how shall inherit. See Descents and Distributions. binding of, as apprentices............................................ 89 See Apprentices. under ten years of age, not competent witnesses......................... 236s. poor. See Poor. appropriation for support of. See Executors and Administrators. illegitimate. See Illegitimate Children. of lunatics. See Lunatics and Drunkards. legitimacy of, not affected by divorce................................... 47fposthumous. See Wills. CHURCHES, act to incorporate............................................. 383, See Corpororations-Religious Societies. CITIES. See Corporations-Cities. responsible for damages by mobs........................................ 467actions against, to be brought as' in other cases........................... 467 powers of, in relation to roads. See Roads. CITIES AND TOWNS,.................................................. 119 concerning plats of.................................................. 19 proprietors make map of............................................. 119 map to be acknowledged................................................ 119, to be filed and recorded in the office of register of deeds..................... 119 of lots sold before map recorded, penalty................................. 119J 920 INDEX. CITIES AND TOWNS, continued. PAGA. when maps recorded the title to parcels of land for public use, vests in the county.......................................................... 120 penalty for making out fraudulent maps................................ 120 forfeiture recovered by action, for use of county.......................... 120 property of individual incurring forfeiture, liable......................... 120 plat of, to be transmitted by register of deeds to register of new county...... 120 all plats laid off on public land to be filed with register................... 120 what they must set f orth............................................ 120 may contract with gas companies...................................... 368 CITY COUNCILMEN to be judges of Elections. See Elections. CITY LOT exempt from attachment and execution. See Exemptions. CITIZENS AND ALIENS, no distinction allowed between........................ 51 CLAIMANTS, OCCUPYING, ACT FOR RELIEF OFr CHAP. 25. Occupying claimant, having color of title, shall not be evicted by adverse claimant proving a better title, until value of improvements be paid............ 121 must pay value of land without improvements........................... 121 not to apply to lands of the State, or Railroad Companies.................. 122 of lands sold for taxes.............................................. 122 holder of tax title in possession entitled to value of improvements.......... 122 value of improvements, how determined................................ 122 jury shall view and value improvements................................ 123 " " off-set damages and rents.................................... 123 " " assess the value of the land, without improvements............ 123 talesmen may be summoned.......................................... 123 court may set aside assessment or valuation, for good cause shown......... 123 if judgment be rendered of a sum in favor of plaintiff, on assessments, off-sets, &c., execution shall issue as in other cases............................ 123 action for mesne profits barred........................................ 123 successful adverse claimant may tender deed or pay the sum assessed against him by the jury................................................. 124,on payment by successful claimant, writ of possession may issue............ 124 if occupying claimant refuses to receive value of improvements, writ of possession may issuec a.......................... 124 occupying claimant not to be evicted unless application be made for value of improvements.................................................. 124 if successful claimant elect to surrender the land, occupant may pay money into court, and obtain decree of title..................................... 124 parties to actions for real property may have relief as.................... 225;-CLERGYMEN, when disqualified as witnesses................................ 236 CLERKS, COUNTY. See Counties and County Oficers. See Taxes. See Strays. shall not issue a greater amount of orders than amount of taxes levied, less delinquencies................................................ 730 See Orders, County. See Roads. See Schools. See Ferries. shall be clerk of court to try contested elections. See Elections cotested. CLERKS OF SUPREME COURT, general duties of............................. 451 of Probate Court, probate judge to be........................... 58, 466'See Executors and Administrators.,of School Districts. See Schools. of Townships to certify amount of taxes to county treasurer........ 435 INDEX. 921 PAGE CLERKS of Township to certify copy of township assessment rolls to county treasurer 435 See Townships and Township 0 ers — Trustees. of Church Corporation. See Corporations. See Churches. CLOTHING, lien may be had for labor, &c., bestowed on....................678, 679 "CODICIL" included in term " Will "........................................ 837 CIVIL PROCEDURE, an Act to establish a code of. CHAP. 26. ABATE, when actions not to................................... 131 proceedings in case of marriage, death or other disability of a party to an action 131 ABATEMENT of actions............................................... 191 ABSCONDING debtor, attachment against property of......................... 154 ABSCONDING defendant, time for commencing action against not to run......... 128 ABSENCE from Territory.' Time of absence from territory not part of period of limitations........................................... 128 ABSENT defendant. ~ See Non-resident. how served by publication.............................................. 136 service on, when complete............................................ 137 may defend after judgment.................................. 137 ACco'UNT, how to be stated in pleading.................................. 144 copy of, sufficient in pleading.............................. 144 ACKNOWLEDGMENT, to take case out of limitation, must be in writing and signed. 129 by defendant on summons, same as service.............................. 135 ACQUITTANCE, when judgment for to operate as............................ 187 ACT. See Code. AcTION, its nature and object............................................ 125 ACTIONS, distinction between actions at law and suits in equity abolished....... 126 form of............................................................ 126 time for commencing, in general....................................... 126 for recovery of real property........................................... 126 other than real property.............................................. 127 general provisions as to........................................... 128 parties to, how designated......................................... 127 when deemed commenced........................ 128 attempt to commence, what,........................................ 128 barred in States by time, barred here also............................... 128 parties to........................................................... 129 revivor of................................................ 127, 131, 191 may be continued by survivor or assignee............................... 131 not to abate by death or marriage, &c., of party to........................ 131 county in which they are to be brought................................. 132 commencement of...........................I.......... 134 what causes of, may be joined......................................... 138 may be consolidated................................................. 147 by whom order of consolidation made..................... 147 arrest and bail in........................... 147 replevin of property in.......................... 152 attachment of property in............................................ 154 injunction in.......................... i............................ 164 receivers and other provisional remedies in............................. 166 trial of... 168 922 INDEX. CIVIL PROCEDURE, continued. PAGE ACTIONS, evidence in the trial of........................................ 176 judgment in..................................................... 186 survivor and abatement of............................................ 191 execution.....1........................................... 194 offer to compromise........................ v............. 212 offer to confess judgment in............................................. 213 when death is caused by wrongful act, default or neglect of another.......... 80 by sureties against principal.......................................... 214 costs in................................................ 222 to determine conflicting claims to real property......................... 224 concerning real property, general provisions as to......................... 224 for waste......................................................... 225 See Existing Suits. on official securities.................................................. 225 See Existing Actions. are civil or criminal................................................. 125 when both lie, they are not merged..................................... 126 against boats........................................................ 110 on mechanics' liens......................................... 680 by master against apprentice, after majority, for damages for absence, &c...... 94 ADJOURNMENT OF COURT, by sheriff when judges do not attend............... 229 ADMINISTRATOR. See Executor. ADMISSION, inspection, and production of documents........................ 184 party may be required to admit a paper to be genuine, or pay expenses of proving it...................................................... 184 inspection and copy of books, papers and documents, how obtained.......... 184 how copies of deeds and other written instruments obtained................ 185 laws of other territories, &c., how proved............................. 185, 107 ADVERSE claims to real property, party in possession may determine by action... 224 " parties may be compelled to testify.............................. 177 ADVERTISEMENT of sale of goods and chattels on execution................... 197 of lands....................................................... 199 AFFIDAVIT, of printer as to service by publication.......................... 137 of defendant to open a judgment after service by publication................ 137 counter affidavits.................................. 137 to verify pleadings..........I...................................... 142 to obtain continuance after pleading amended............................ 147 to verify proceedings against unknown defendant......................... 147 to obtain order of arrest............................................. 147 to be delivered to sheriff............................................. 148 copy of to be delivered to defendant, &c................................ 148 on motion to discharge order of arrest, when used................ 151 to obtain immediate delivery of personal property, requisites of............ 152 to procure attachment, requisites of...................... 155 in proceedings against garnishee....................................... 156 on motion to discharge attachment.................................... 162 to procure attachment before claim due, requisites of................... 163 in injunction, before order granted..................................... 164 on hearing........................................................ 165 INDEX. 92' CIVIL PROCEDURE, continued. PAGX AFFIDAVIT, on motion to vacate or modify.............................. 166 as a witness.................................... 180 defined........................................................... 180 for what purposes may be read..................................... 180 before whom may be made............. I.............................. 180 by applicant on proceedings to perpetuate testimony...................... 185 to obtain order for examination of judgment debtor, before return of execution 206 to obtain arrest of judgment debtor under proceedings in aid of execution..... 206 to obtain order to examine debtor to judgment debtor..................... 207 on motion for writ of mandamus...................................... 226 to obtain arrest of the person on execution............................... 210 by plaintiff, to obtain judgment on accepting an offer to compromise......... 212 by parties to submission of a controversy................................ 212 to petition of error coram nobis in certain cases................. 220 to obtain injunction of a judgment sought to be reversed on error........... 221 to verify service of process when by a person specially authorized........135, 228 affiant may affirm.................................................. 229 AFFIRMATIONS, when to be taken, and effect of................... 229 AFFIRMANCE of judgment of justice of the peace in district court, proceedings on 219 AFFIRMATIVE relief, defendant may have judgment for, if entitled to.......... 186 AGENT, when may verify pleadings..................................... 143 of plaintiff, may make oath to obtain arrest of defendant................... 147 or replevin of property............................................... 152 or attachment...................................................... 155 or proceedings against garnishee......................................... 156 or an injunction............................................. 164 managing foreign corporation, summons may be served on................. 135 ALLEGATIONS, in pleadings, when deemed true............................. 145 when considered as denied or avoided............................... 145, 235 of the petition not controverted by the answer to be taken as true..... 236 of new matter in the answer, not controverted by the reply, to be taken as true 236 of new matter in the reply, to be deemed controverted as upon direct denial.. 236 of value or amount, not to be taken as true.............................. 236 material, when...................................................... 145 ALTERNATIVE Mandamus.............................................. 226 AMENDMENTS, when unnecessary......................... 145 by plaintiff of course................................................. 146 on demurrer................................................... 146 by the court....................................................... 146 See Pleadings. costs on........................ 223 AMERcEMENT of Sheriff, for neglect or misconduct in respect to executions against property, causes of................................................ 203 notice............................................................. 204 AMERCEMENT, amount of..........................................203, 204 to have effect of judgment......................................... 204 sureties of sheriff, how made parties to............................... 205 property of sureties not to be taken while sheriff has sufficient............. 205 of sheriff, for not executing and returning process......................... 229 924 INDEX. CIVIL PROCEDURE, continued. PA g AMERCEMENT of clerk, for what causes.................. 204 proceedings on.................................................. 204 ANSWER, generally........................................ 14 See Pleadings. in action for the recovery of real property, requisites of................. 224 on writ of mandamus......................... 226; APPEARANCE, voluntary, may be entered by defendant on back of summons.... 135 APPEARANCE docket................................................ 175 APPLICATION for an order is a motion.................... 214APPRAISEMENT of lands taken in execution, notice of to be given.............. 772 by three freeholders, their oath, duty and return.................. 198 copy of, to be deposited with clerk............................. 198 new, when allowed.............................................. 202 APPRAISERS, not to purchase property appraised................... 200 their fees, and how collected..................................... 203 penalty for neglecting to serve as............... 203 APPRENTICES, proceedings relating to, not affected by code.................. 230 ARBITRATION, proceedings relating thereto, not affected by code............... 230 ARGUMENT, on a trial............................... 169 ARREST, no person to be arrested in a civil action, except as prescribed by the code 147 proceedings not to apply to contempts, nor to actions in the name of the Territory, nor penal actions......... 147 in what cases...................................................... 147 order for, by whom made............................................. 147 affidavit, to obtain...147 affdavit, to obtain................................................. security on issuing of........................................... 148 when it may issue................................................... 148 must be delivered to sheriff...................................... 148 its contents............................................ 148 when returnable......................................... 148 how executed............................................. 148 copy of, and of affidavit to be delivered to defendant...................... 148 further orders..................................................... 148 motion to vacate.............................. 151 See Motion to vacate order of arrest. how made................................................149 defendant may be discharged from, on bail or deposit...................... 149 by bail............................................................. 151 by bail..151 sheriff, how exonerated from liability............................ 149 See Bail. after judgment.................................................... 206 See Execution against the person. on proceedings in aid of execution...................................... 206 ASSAULT, action for, time of commencing................................. 127 costs in......................................................... 223 costs in... v e r * * e v * X s s * 223 ASSAULT and battery, costs in action for................................. 223 See Assault. ASSESSMENT of Damages, for private property taken for public uses not affected by code.............................................. 230 INDEX. 925 CIVTIL PROCEDURE, continued. PAGE. ATTORNEY, how to answer for an infant, person of unsound mind, or person in prison.................................................. 141 must subscribe pleadings, if the party does not.............................. 142 when may verify pleadings.................................. 143 may obtain order for arrest of defendant.......................... 147 or replevin of property................................................. 152,or attachment................................. 155 or proceedings against garnishee.............................. 156 or an injunction......................1..... 163 or arrest on executionl........ 210 when incompetent as a witness..................... 1 77 may waive in writing the issue or service on defendant of summons in error.. 216 ATTACHMENT, grounds of...................154 how obtained, affidavit necessary...................................... 155 in all cases bond required...................................... L155 order of attachment, how directed and executed...................... 155 property attached may be delivered to the person with whom found on executing undertaking........................ 156 proceedings against a garnishee............................. 156 how order served on garnishee.e................................... 157 different attachments may be made by same officer.................... 157 form of return............................................... 157 when property and garnishee bound............................ 157 district judge may dissolve in vacation.............................. 162 YDisposition of Attached Property..................... 158 receiver may be appointed.......................... 158 who shall give undertaking..................0....................... 158 receiver to take and settle effects................................. 158 shall give notice of his appointment to persons indebted.............. 158 Proceedings upoon Attachment, defendant may discharge attachment at -any time before judgment, by executing undertaking........................... 159 undertaking to discharge attachment may be executed in vacation...... 159 appearance and disclosure by garnishee............................... 159 payment by garnishee..... *......................... 160 contempt by garnishee...................................... 160 diposition of propeaty in hands of garnishee.............................. 160 when plaintiff may appear in action against garnishee..................... 160 as to the action against garnishee................................ 160 if judgment be rendered for defendant, attachment discharged....... 161 if judgment be rendered for plaintiff, money and property to be subjected to its payment...................................................... 161 court may enforce the delivery of property attached, as for a contempt.... 161 may order sheriff to repossess himself of attached property................ 162 when property attached is claimed by a third person, how to proceed........ 162 when question of priority may be referred......................162 General Provisions; proceedings not to end by death of the defendant...... 162 when plaintiff may be required to give additional security................. 162 motion to discharge an attachment.................................. 162 what evidence may be use on such motion.............................. 162 59 9296 INDEX. CIVIL PROCEDURE, continued. PAGEa Before claim due; on what grounds of fraud order may issue.................. 163 who to grant the same and the affidavit............................... 163 action to be discontinued if order of attachment be not issued......... 163 the order, what.................................................... 163 undertaking by plaintiff.............................................. 163 action to be continued until claim is due................................ 163 subsequent proceedings same as in other cases..................... 163 of witness...................................................... 178 Against Sheriff; for neglect or misconduct in respect to executions against property 205, See Amercement. ATTACHMENT of the person; execution in certain cases may be enforced bye.. 194 BAILi; defendant may be discharged from arrest on...................... 14 how given.......................................................... 149 condition of undertaking.......................................... 149 objection to..................................................... 149 justification of..................................................... 149 allowance of....................................................... 150 when sheriff liable as, and how discharged................................ 150 how sheriff's liability fixed and sued..v * o..O............. 15(0 insufficient bail liable to the sheriff..................... 150 liability of, how fixed and sued,.......................... 151 exoneration of................................................ 151 surrender of defendant in discharge of.................................... 150 arrest of defendant by................................................. 151 deposit of money be substituted for................................ 151 proceedings against stayed by proceedings in error, and bail discharged on reversal of judgment against principal................................. 151 amount of may be reduced by order.................................... 151 proceedings on motion to reduce....................................... 151 BATTERY; time of commencing action for................................ 127 See Assault. BASTARDY, proceedings relating to, not affected by code............. 230 BILL of Exceptions................................................. 173 See Exceptions. BILLS of Exchange. See Negotiable Instruments. BOND. See Undertaking. BOOKS. See Admission and Inspection. CA. SA. See Execution against the person. CERTAINTY, in pleading..................................... 143 CERTIORARI, writ of abolished....................................... 219 See Error in Civil Cases. CHALLENGES, each party entitled to three..............................168, 238 CHILDREN, when incn-Imp;tent as witnesses.............................. 177 CIVIL Action, form. of........................................... 126 See- Action. CLAIM and Delivery of Personal Property. See Beplevin of Property. CLERGYMEN, when incompetent to testify................................ 177 CLERICAL Errors, must first be reviewed in court where they occurred, before ground of error................................................... 219 INDEX. 927 CIVIL PROCEDURE, continued. PAGE. rendering judgment prematurely deemed a............................. 219 to be corrected on motion............................................ 220 CLERKS, duties of generally, to issue process upon precipe filed.............. 228 to file papers.................................................... 228 to indorse time of filing papers........................................ 228 to enter on docket names of parties summoned...................... 228 to keep records......................................... 228 to prepare dockets.............................................. 175, 228 other powers and duties.............................................. 228 duties of, &c., incident to commencement of a civil action................. 134 shall direct process to coroner, when................................... 425 See Summons. duties of, &c., incident to provisional remedies, arrest and bail........... 147 See Arrest. replevin of property................................ 152 See Replevin of property. attachment.....................................................155, 163 See Attachment. injunction......................................................... 164 See Injunction. polling a jury...................................................... 170 to enter special verdict.............................. 171 to file agreement of reference when made in vacation...................... 173 to issue subpoenas for witnesses....................................... 177 -Duties of, may take depositions.......................................... 181 when to issue commissions to take depositions.......................... 181 to file exceptions to depositions....................................... 183 to file petitions to perpetuate testimony................................. 185 to file warrant of attorney, if judgment confessed by...................... 188 manner of entering judgment by................................... 189 See Revivor of action. duties of, and incident to execution, to issue writs of...................... 194 what execution against property to contain.............................. 195 Ibee Execution. liable to amercement..................................... 204See Amercement. when to file proceedings in aid of execution............................. 209A when to make order for delivery of property......................... 237, 233 to enter orders made out of court in the same manner as orders made in term 215 to issue summons in error........................................... 216; shall furnish transcripts.........................................216 to take undertaking or stay execution.................................. 216 clerical errors, proceedings on.................................... 19, 220 form of process issued by..................................... 227' CLERK of Court, shall keep docket.............................. 175 appearance docket, what to contain...................................... 175 how arrange trial docket...................176 shall make copy of trial docket for bar............................... 176 shall file and docket transcript of justice's judgments....................... 211 928 INDEX. CIVIL PROCEDURE, continued. PAGE CLERK of Court, when to issue execution thereon........................... 211 costs for filing transcript and entry of the case on the execution docket to be paid by the plaintiff................ 212 amercement of.................................................... 204 See Amercement. to issue subpoenas in proceedings in aid of execution..................... 207 to take undertaking on proceedings to correct errors in justice's judgments... 218 if justice's judgment affirmed in probate court, certificate of clerk to justice... 219 CODE, how styled..................................................... 125 to be liberally construed......................................... 125 provisions as to operation of........................................ 230 when to take effect................................... 232 See Operation of the Code. COMMENCEMENT of a civil action, by filing a petition and issuing a summons.... 134 precipe for summons................................................. 134 requisites of a summons......................................... 134 when action is rightly brought in any particular county summons may issue to any other county............................................... 134 when summons is returnable..................................... 134 when further writs may be issued......................... 135 by whom summons to be served...................................... 135 manner of service................................................... 135 time and manner of service to be stated................................ 135 when the officer to return the summons................................ 135 acknowledgement on writ or appearance of defendant same as service....... 135 how summons served on a corporation................................. 135 may be served on an agent of an insurance company................... 135 if a foreign corporation, on an agent in this Territory..................... 135 infants, how served.................................................. 136 service by publication, in what cases allowed............................ 136 what affidavit necessary............................................. 136 publication, how made, and what to contain............................. 136 when such service is complete, and how proved.,........................ 137 service of a summons out of the Territory............................ 137 how judgment on service by publication may be opened-effect on purchasers 137 proceedings against unknown heirs.................................... 137 proceedings when there are several defendants, and part only served.. 137 after service of summons or publication, action pending, and plaintiff's title protected........................................................ 138 judgment to be notice only in the county where rendered, unless recorded elsewhere........................................................... 138 COMMENCING Action, when deemed commenced......................... 128 attempt to commence, what.............................................. 128 time of................................. 126 See T'ime of commencing actions. COMMISSION, to take depositions................................... 181 COMMISSIONER,,Master, appointment of.................................. 232 conveyance of land by........................... 190 See Chapter 37, Section 1, INDEX. 929 CIVIL PROCEDURE, continued. PAGE COMMISSIONER, Master, oath of office and security by............. 232 fees of.................................................... 232 CoMMON Law, to be the rule of action and decision.......................... 678 rule of construction of, not to apply to code............................. 125 causes of action surviving at, to survive under code.................... 191 COMPETENCY of Witnesses. See Witnesses. COMPROMISE. See Offer. CONCEALED Defendant, time of commencing action against, not to run............ 128 attachment against the property of............................... 154 See Attach7ment. CONDITION Precedent, performance of, how pleaded......................... 144 CONDITIONAL Order, to revive actions........................... 193 CONFESSION of Judgment, after action............................ 188 defendant may offer to make for part of amount claimed, or causes involved.. 213 effect of, if plaintiff refuse to accept................................ 213 offer not to affect defendant on trial.......................... 213 before action, person liable may offer to confess judgment for a specific sum before an action for the recovery of money is brought......... 213 effect of offer, if other party does not accept.............................. 213 offer not to be used on the trial....................................... 213 CONFIRMATION of Sale on Execution...................................... 199 CONFLICTING Claims, to real property may be determined by action of party in possession.. e * m... * a 224 possession...,....,,.,,.,.~............................ 224: to personal property, when interpleader allowed on............... 130 to personal property, when taken in attachment, how determined........... 162 on execution...................................................... 195 on proceedings in aid of execution................................. 207 CONSIGNEE, lien unaffected by attachment................................. 157 CONSOLIDATION OF ACTIONS............................................ 147 CONSTRUCTION, code to be liberally construed.............................. 125 of pleadings......................... 143 CONSTRUCTIVE NOTICE, when notice of is pencdens is......................... 138 CONSTRUCTIVE SERVICE, when service by publication may be made........... 136 what affidavit necessary............................................ 186 publication how made, and what to contain............................ 136 how completed and proved...................................: 136 on revivor of actions................................................. 192 CONTEMPT, disobedience of injunction punished as.......................... 165 refusal by receiver to deposit or deliver money or other thing when ordered, punished as..................................................... 167 of court by a witness, what constitutes................. 178 attachment for..................................................... 178 punishment.................................................. 179 witness released, if illegally imprisoned............................. 179 for not giving undertaking in proceedings in aid of execution................ 206 if defendant in mandamus does not return writ, may be proceeded against as for. 226 CONTINUANCE, offer to compromise, no cause of............................ 212 costs on.................................................. 223 CONTRACTS, not in writing, time for commencing action thereon............... 127 930 INDEX. CIVIL PROCEDURE, continued. PAGE CONTRACTS, in writing, when...............................1........... 127 evidence of new or continuing must be in writing........................ 129 CONTROVERSY........................................... 212 See Submitting Controversy without Action. CONVEYANCE, when judgment for, to operate as................ 187 CONVEYANCE BY COMMISSIONERS, when personal property conveyed by master commissioner............................................. 190 sheriff may act as commissioner....................................... 190 requisites of master's deed............................................ 190 See chapter 37. COPIES, of written instruments to be filed with pleadings.1................43, 144 of lost pleadings may be substituted for................................. 144 of books, papers, documents, how obtained........................ 184 of deeds or other written instruments, how obtained..................... 185 printed, of laws, when evidence.................................185, 107 CORONER, when to serve process............... 227, 425 CORPORATION, how summons served on.................................. 135 may be sued where situated, except, &c................................ 133 may be made garnishee in attachment................... -............. 156 See Attachment Foreign Corporation. Quo Warranto. CosTs, party served by publication, must pay, before judgment opened....... 137 no payment of, or amendment for immaterial variance..................... 146 on demurrer sustained, amendment with or without, as court may direct.... 146 on supplemental pleadings.............................:'. 147 when bail to pay, pending proceedings in error on judgment against........ 151 jail fees on arrest part of costs of case................................... 152 in replevin of property............................................... 153 of keeping property attached.......................................... 158 when garnishee to pay, and when to recover.................. 161 on final judgment in attachment......................... 161 fees of referees part of costs of case............................ 173 of proving a paper or document, when opposite party must pay............. 184 of proceedings to perpetuate testimony, applicant to pay............. 18G full record, on condition of paying therefor.............................. 190 on proceedings in aid of execution...................................... 209 of filing transcript of justice's judgment................................ 212 when defendant offers to compromise................................... 212 on submitting the controversy without action............................ 213 on confession of judgment, after and before action........................ 213 in error....................................................... 219 non-resident plaintiffs to give security for.................... 222 action to be dismissed, unless such security given................. 222 security for, if plaintiff become non-resident, after action brought........... 222 auditional security for, when required................................... 222 judgment for, when and how rendered against surety............... 222 informer under penal statute, when liable for........................... 223 on disclaimer of title or interest in the subject of action......... 223 of motions and amendments......................................... 223 INDEX. 931 CIVIL PROCEDURE, continued. P-A CosTs, to plaint'ff, when allowed of course..................... 223 when not allowed of course......................................... 223 to defendant, when not recoverable unless plaintiff recovers more than five dollars damages. 223 when allowed of course.............................................. 223 when under control of codrt........................ 223 written instrument, but one recovery of costs on...................................... 223 COUNTERCLAIM, various grounds of, may be set forth in answer................ 140 of what it consists................................................. 140 costs not recoverable, if counterclaim not set up in proper case.............. 141 new parties to............. I......................... 141 may be withdrawn, on leave, and made a separate proceeding- proceedings thereon................................................... 145 not affected by plaintiff's discontinuance or default............. 187 if established beyond plaintiff's demand, judgment for excess............... 189 record of case........ z...... I....o...... 189 CouNTY, in Which actions are to'be brought............o................. 1.32 COURT, trial by.........1.................. 171 when may dismiss action...........6........... e16 187 assessment of damages by............................................. 187 when costs under the control of....................................... 223 COURT HOUSE, sales of land under execution to be held at........................ 200 CREDITOR's Bill. See Execution, Proceedings in aid of CRIMINAL CONVERSATION, costs in actions for...................... 223 CRIMINAL PROCEEDING, verification of pleading not to be used in............. 142 CRoss DEMANDS, when deemed compensated.............................. 141 DAMAGES, on arrest.................................1.... 148 bail adjudged insufficient, liable to sheriff for............................ 150 in replevin of property......1....................................... 153 in attcbhmeht..................... o e -.............. ~..o..155, 161 on injunction................................. 1164,on failure to answer, how assessed................................. 187 plaintiff to recover as entitled..................... 175 if plaintiff undertake to pay damages, may sell propertyclaimled as against levy of execution.................................................. 197 when death is caused by wrongful act, neglect or default of another........ 80 DEATH, of parties to actions, effect of........................... 131 not to abate the action......................,........................ 131 See Revivor of Actions. of a person under arrest, does not satisfy the judgment.................... 210 DEBTOR, to judgment debtor may pay amount of his indebtedness to sheriff; in certain cases.............................................. 207 DECEASED PERSONS, settlement of estates of, not affected by code.............. 230 DECREES IN CHANCERY, heretofore rendered, or which may hereafter be rendered, in suits pending when code takes effect, to be subject to review as formerly. 219 DEED, by sheriff for land sold on execution................. 199 932 MNDEX. CIVIL PROCEDURE, continued. AGa DEFAULT, judgment by................................... 187 See Judgment on Failure to Answer. DEFENCES, any number may be interposed........ 1490 to be separately stated and numbered................................. 140' arising after answer or issue...............................,..,... 147 See Answer. DEFENDANT, the party adverse to plaintiff is........ O 126 who may be made or joined as.......................... 130z See Parties to Actions. when part only of several are served-proceedings.................... 137 when liable to arrest......... O.....1... I ~ L47, 209' may offer to compromise, or confess judgment.....................212, 213 when costs to be allowed of course........................................ 223 DELIVERY BOND,. of goods taken on executions its condition and breach........ 197 DELIVERY OF PROPERTY, may discharge arrest of the person............. 20 DELIVERY OF PERSONAL. PROPERTY, See Replevin of Property. DELIVERY OF REAL PROPERTY, executions for..........................2.... 211 DEMAND, of admission of documents, &c...*.... e..... 184 DEMURRER, amendments on...................... 146 See Pleadings. DEPOSIT, defendant may be discharged from arrest on... 143. to be paid into court.....-.O OOD.O v O...*..143 disposition of............... 143 bail may be substituted for........................................... 151 receiver, trustee, or other party, may be ordered by court to make.......... 167 punishment for disobedience............ 167 DEPOSITIONS, when to be used........................................... 180 when taken......................................... 181 officers authorized to take............................................. 181 See Acknowlekdgmtents,. Oaths and Depositions.. in the Territory.......................,0~0 *. O OO..o* 181; out of the Territory................... e............................. 181 commission to take............................................... 181 commissioners to take, governor may appoint........................... 349 powers and duties of.........................o............ 349 requisites of notice...........................181, 182 how taken.........................o.................. 182 where deposited..................................e.........o. *.o 182 when used................................ 182 how authenticated.........................-* 182, 183 when to be filed,.................0... o*................ 183 fees for taking................... e *. O * S * e *.. O * O * O * o. 183 S3e Fees. exceptions to.............................. 183. DEPUTY, duties of ministerial officers may be performed by................. 229 DEVISEES, when action may be revived against............................. 192 DISABILITIES, what are....1..........................128, 127, 217 effect of......................................................128, 127, 217 DISCLAIMER, by defendants, costs on.............oo.......'........ 223 INDEX. 933 CIVIL PROCEDURE, continued. PAGE DISCOVERY, of books, papers, &c............................. 184 of property.................................................... 205 See Execution, Pr~oceedings in aid of. DISMISSAL OF ACTION....................................... 187 DISOBEDIENCE, of an injunction, proceedings on............................ 165 See Contenypt. DISTRICT COURT, powers of, for the correction of errors in proceedings of justices of the peace, and other tribunals................................ 215 rules of.......................................... 230 may add five per cent. penalty on affirming a judgment.......................... 231 DOCKETS, appearance, trial, journal, record and execution.................... 175 action may be stricken from, if not revived.............................. 193 DOCUMENTS........8.................................... 184 See Adlmission, Inspection, 4 c. DORMANT JUDGMENT, how revived..............1....... 194 when it becomes so...............................194 DOWER, proceedings for, not affected by code.............................. 230 EJECTMENT. See Reeal Property, Actions concerning. ENDORSEMENT, on summons. in action for recovery of money only............. 134 of amount due on execution...................................... 195 by clerk of time of filing papers..................................... 228 by sheriff of time of receiving process.......................... 228 EQUITABLE Interests, how subjected to the payment of judgments............ 205 EQUITY, suits in, abolished....................................... 126 if pending, may be prosecuted to final decree............................ 219 See Existing Suits. ERROR in Civil Cases, what may be reviewed in cases before justices of the peace or other tribunals..................................... 215 final order defined.................................................. 215 what may be reviewed in district court................................. 215 error to supreme court...........................................215, 233 proceedings to be by petition and summons............................. 215 requisites and service of summons, and return of...........,........... 215 transcript of proceedings below to be furnished and filed by plaintiff in error.. 216 stay of execution, when allowed....................................... 216 conditions of plaintiff's undertaking to obtain stay of execution.........216, 234 executors, administrators and guardians, who have given bond, need not execute undertaking..................................................... 231. substitute for the undertaking........................................ 217 undertaking to be approved........................................... 217 defendant in error may obtain execution of the judgment by giving security to make restitution, &c..21............................. 217 when proceedings in error must be commenced.......................... 217 stay of execution on justice's judgments................................ 218 what terms of stay to be prescribed.................................... 218 proceedings by appellate court on reversal or modification of judgmen order......~................................................... 218 special mandate to court below, and execution thereon..................... 218 costs in error.......,............................................... 219 934 INDEX. CIVIL PROCEDURE, continued. rAG, ERROR, in civil cases, district court may impose five per cent. penalty.......... 231 misprision of clerk no ground of reversal................................ 219 rendering judgment prematurely a clerical misprision or error.............. 219 writs of error and certiorari abolished................................... 219 affirmnance or reversal of justice's juduments........................... 219 chancery cases reviewed as hitherto................................... 219 when Probate or District Court may revise its own judgments or orders, after the expiration of a term........................................... 220 how proceedings in error coram nobis commenced........................ 220 order of proceeding.................................................. 220 conditions on which judgment may be vacated or modified................ 221 when injunction may be allowed..................................... 221 effect of vacating a judgment rendered before action stood for trial, and orders of the court thereon........................................... 221 limitations of proceedings in error coramn nobis........................... 221 how far title sixteen applies to Supreme Court, and Probate Courts.......... 221 terms of Probate Courts for commencing proceedings in error............... 221 ERROR. Proceedings in Courts where judgments or orders are rendered. See Error. Coram Nobis. plaintiff in shall execute undertaking.................................. 233 cause for which Probate Court or District Court may vacate or modify its own judgments or orders, after a term.... I... 220 proceedings in....................................................... 220 See Error in Civil Cases. limitation for commencing proceedings.................................. 221 provisions, corarm nobis, applicable to all the courts of record................. 221 ERROR, Coraem Nobis.................................................. 220 ERRORS, release of....................................................... 188 effect of waver of................................................... 231 EVIDENCE, copies of records and papers of county officers to be............ 420, 433 printed statute books of this State to be................................. 107 of other States to be................................................. 107 certified copies of proceedings before justices of the peace to be............. 108 See Authentication of Statutes, 4c. when instruments of conveyance allowed as.............,...356, 357 transcript of records of wills admitted as......................... 905 competency of witnesses................................ 176 means of producing witnesses.................................... 177 mode of taking testimony............................................ 180 admission, inspection and production of documents, and general provisions... 184 proceedings to perpetuate testimony.............................. 185 See Witness. EXAMINATION of Parties, allowed to testify................................ 177 adverse party may be examined on behalf of his adversary............ 177 exceptions to rule allowing parties to testify............................. 177 of witness. See Witnesses. of j dgment debtor. See Execution, proceedings in aid of. EXCEPTIONS, defined.................................................. 173 INDEX. 935 CIVIL PROCEDURE, continued. PAGE EXCEPTIONS, time of taking................................................ 173 no forin necessary.................................................. 173 when facts appear on record........................... 173 when facts are not of record.......................................... 173 must be material, and prejudice party excepting....................1...... 174 may be withdrawn........................................ 174 EXECUTION, general requisites, style, seal, date, signature................... 227 how issued................................................... 194 may be directed to different counties................................... 194 different kinds of................................................. 194 when enforced by attachment......................................... 211 EXECUTION against Property, what subject to;..................;......... 194 lien of judgment................. 194 dormant judgment........................................ 194 command and indorsement of execution............................... 195 preferences on...................................................... 195 how levied......................................... 195 claim of property taken............................................. 195 sheriff may take bond for delivery of property............................ 197 return of inventory................................... 198 another writ of, may issue............................................ 209 writ of sale may direct further levy....8,............................ 188 c2pporaisemezn t of lands, by three freeholders........................... 198 their duties..............,,,.................................... 198 return of........................................................ 198 copy to be deposited with clerbly..................................... 198 when liproperty sold with out val uation........................................... 19 when property sold without valuation.................................. 199 notice of sale on, of goods and chattels.................................. 197 of lands............................................................ 199 officer need not publish until printer's fees, after demand made, are paid...... 200 if notice not given sale will be set aside......,,................ 199 sale on, of goods, sheriff and appraisers not to purchase..................... 200 amercemlent of sheriff for not selling and how........................... 203 sale on, of lanrds, not to be sold for less than two-thirds of their appraised value 198 unless for Territorial or official dues, &c................................ 198 where sale to be held......................,,,...................... 200 sheriff and appraisers not to purchase..........,,............. 200 sheriff may be amerced for not selling................................. 203 confirmation of sale by court, and entry thereof on the journal............. 199 retzern of, when to be returned..,,,.......,,,,,,................. 202 See Amercemnent. conf7rmqateio of sale on, and deed of sheriff-how sale confirmed by court...... 199 when and how deed of sheriff made, its recitals and effect................. 199 his deed under sales made by predecessor............................. 201 money made on, may be retained until sale of real estate confirmed.......,.,. 199 to whom overplus paid...................,,,,,,............... 201 sheriff or clerk may be amerced for not paying over...................... 203 stay of, on proceedings in error........................................ 234 936 INDEX. CIVIL PROCEDURE, continued. PAGE EXECUTION, on Justice's Judgments..................................... 211 EXECUTION. Proceedings in aid of, when judgment creditor may proceed against* equitable interests, stocks, &c., of the debtor........................... 205 when execution returned unsatisfied, order for discovery of property allowed.. 205 when judgment debtor refuses to apply property to satisfy judgment, order may issue on affidavit, before return of execution....................... 206 when warrant may issue for arrest of debtor..................... 206 manner of proceeding to examine judgment debtor.................... 206 undertaking by the debtor.......................................... 206 proceedings, if undertaking not given.............................. 206 the existence of a fraud not to excuse from examination................... 206 any debtor may pay execution against his creditor....................... 207 examination of judgment debtor, or those having property belonging to him.. 207 witnesses, how examined......................................... 207 application of property discovered...................................... 207 exemption of property from the order................................... 207 judge may appoint receiver, and prohibit transfers of property.............. 207 proceedings upon claim of another party to property, or on denial of indebtedness to judgment debtor..................................... 208 undertaking by receiver.............................................. 208 proceedings may be continued......................................... 208 reference by judge................................................... 208 disobedience of order, how punished.................................... 208 pleadings to be reduced to writing, and filed with clerk................... 209 conipensations and costs.............................................. 209 EXECUTION against the person, requisites of............................... 209 for what causes may issue............................................ 209 by whom and how allowed........................................... 210 may be issued by Justice of the Peace.................................. 210 when it issues, of course............................................ 210 may be discharged by delivery of property.............................. 210 prison bounds, if debtor admitted to, execution may issue against property.... 610 death of debtor under arrest, no satisfaction of judgment.................. 210 if arrested before judgment, must be again arrested within ten days after judgment.......................................... 210 debtor may be discharged if unable to perform the act, or endure imprisonment 210 EXECUTIONS for the Delivery of Real Property............................. 211 requisites of.................................................... 211 may include damages for withholding the same and costs.................. 211 EXECUTION on Error. Supreme Court or District Court to send special mandate to court below.................................................... 218 execution of mandate............................................... 218 EXECUTION Docket, clerk of court to keep......................... 175 transcript of justices' judgments, when filed in District Court, to be entered on 211 EXECUTORS and Administrators, may sue without joining party in interest...... 129 need not give undertaking in error............................ 231 See Revivor of Actions. EXEMPTION, from Execution. CHAP. 91. of earnings of debtor, from proceedings in aid of execution................. 207 INDEX. 937 CIVIL PROCEDURE, continued. PAGE EXISTING Actions, application of the Code................................. 230 EXISTING Suits, saved from the operations of title two...................... 126 in equity, may be conducted to decree, as if code had not taken effect....... 219 See Operation of Code. pending in appellate courts, may be conducted as formerly, with liens unimpaired......................................... 231 FAILURE of Proof............................................ 146 FAILURE to Answer, judgment on........................................ 187 how damages assessed..187 how camages assessed............................................ 187 not to impair right of trial by jury................................... 229 FALSE Imprisonment, time of commencing action for....................... 127 costs in action for.................................................. 223 FEES, See Fees of Officer. jail, on arrest................................................... 152 of referees......................................................... 173 of witnesses, must be paid, if demanded, on service of subpoena............. 178 payable daily, if witness attends...................................... 180 of printer, on execution against property................................ 200 of Probate Jotdge, on proceedings in aid of execution...................... 209 See Costs. FEIGNED Issues abolished............................................. 126 substitute for....................................................... 126 FICTITIOUS Name, party may be sued by, when real name unknown.......... 147 FICTITIOUS Pleading, abolished.......................................... 143 FILING. See Clerk. FINAL Order, what constitutes, for the purpose of proceedings in error......... 215 FINES, when imposed in mandamus..................................... 227 arrest on........................................................ 147 See Forfeiture, Penalty. FORCIBLE Detention of Real Property, limitation of action for................. 127 FORCIBLE Entry, detention of real property, limitation of action for........... 127 FORECLOSURE, of mortgage, place of trial of action for........................ 132 judgment, to be for sale of premises.................................... 187 FOREIGN Corporation, may be sued wherever effects can be found........ 133 summons may be served on managing agent of.......................... 135 subject to attachment............................................... 154 See Corporation. FORMS, of Action, abolished............................................. 126 of pleading, as prescribed by code..................................... 139 FORFEITURE, action for, to be commenced in one year...................... 127 local............................................. 132 See Fine, Penalty. FRAUD, limitation, in actions for relief on the ground of...................... 128 cause of action to accrue on the discovery of............................. 127 arrest, when defendant has been guilty of...................... 209 See Arrest, Execution against the Person. ground of attachment............................................154, 163 disclosure of, not to excuse from examination of judgment debtor, or proceedings in aid of execution.................................... 206 GARNISHEE. See Attachment. 938 INDEX. QIVIL PROCEDURE, continued. PAG GARNISHEE, how required to appear and answer in attachment............... 156 service on......................................................... 157 effect of order on............................................... 157 appearance and disclosure by....................................... 159 payments by................................................... 160 when in contempt............................................... 160 how property in his hands disposed of........................... 160 on final judgment, execution to issue against garnishee................... 236 action against.......................................... 160 judgment not to be rendered against till judgment against defendant........ 236 Garnishee in proceedings on executions returned not satisfied............ 551 GENERAL VERDICT. See Verdict. GUTARDIAN, may sue without joining his ward............................. 129 how to answer for infant......................................... 141 ad 7it1em.. how appointed, when infant is party to an action................. 130 liable for costs, but may be a witness.................................. 130 HABEAS CORPUS, proceedings on, not affected by Code........... 230 See H;beas Corpus. HEIRS, actions against unknown................. 137 when action may be revived against................................... 192 HUSBAND AND WIFE. Husband must be joined with wife in an action, but if action between them she may sue alone.............................. 125 wife may sue without her husband, but by next friend, when the action concerns her separate property................................. 130 if husband and wife are sued together, she may defend her rights and his also, if he neglects to do it......................................... 130 incompetent as a witness for or against each other.....................177, 236 IMMATERIAL VARIANCES......................................... 145, 146 IMPARTIAL Trial, change of place of trial, to obtain......................... 133 IMPRISONMENT for Debt, when person arrested to be discharged.............. 210 See Arrest. Execution Against the Person. INCOIMPETENCY to Testify, when it exists................................ 177 how removed......................................1............. 177 INDEFINITE and Uncertain Pleading, coui t may require to be made more definite and certain by amendment.........................14........... 143 INFANT. See -Disabilities. must sue by his guardian or next friend................................ 130 guardian of, liable for costs, and may be a witness........................ 130 must defend by guardian.130 how guardian appointed............................................. 130 agent or attorney of, may verify pleadings................................ 143 how served by summons......................................... 136 when may show cause against judgment................................ 189 time allowed for commencing proceedings in error........................ 189 INFERIOR TRIBUNALS, to District Court, how proceedings may be reviewed on error 215 Appellate Court or judge to prescribe terms for stay of execution....... 218 INFORMER, under Penal Statute, when to pay costs.........223 INJUNCTION, when actions on undertakings given in, must be brought......... 127 defined....................................................... 164 INDEX. 939 CIVIL PROCEDURE, continred. PAGE INJUNCTION, when may issue.......................................... 164 writ of, abolished.................................................. 164 causes for..................................................... I.... 164 to be granted on affidavit............................................ 164 notice in........................................................ 164 undertaking..................................................... 164 requisites of order................................................... 1165 how served...................................................... 65 when binding...................................................... 165 not to be granted in certain cases.....1.................. 165 disobedience of, how punished......................................... 165 party enjoined, may apply for further security........................... 165 affidavits on hearing................................................. 166 motion to vacate or modify injunction................................. 166 affidavits on motion................................................. 166 defendant may obtain............................................... 166 transfer of property by judgment debtor forbidden, in proceedings in aid of execution........................................................ 207 See Stay of Executioni, Mandamus. INSANE Person. See Disabilities. INSOLVENT Debtors, proceedings relating to, not affected by Code............. 230 INSPECTION of books, papers and dcuments, how obtained................... 184 INSURANCE Company, how summons served on............................ 135 actions against, may be brought where cause of action arose................ 133 INTERPLEADER, when it will be ordered...............1............. 131 IRRELEvANT Mattelr may be stricken from pleading........................ 143 IssuEs, feigned, abolished; but questions of fact, not put in issue by pleadings, may be tried on special order..................................... 126 different kinds of.................................................. 168 when they arise.................................................... 168 when issues of fact arise............................................. 168 trial, is the judicial examination of............................... 168 of law, to be tried by court, unless referred.............................. 168 of fact, in action for the recovery of money, or of specific, real or personal property, to be tried by a jury, unless a jury trial be waived, or a reference be ordered....................................................... 168 in other actions, to be tried by the court, except a jury trial or reference be ordered...................................................... 168 See Trial, Referees. how entered on trial docket......................................... 176 when considered made up...................................176... 176 how triable............................................. 176 See Verdict. JAm Fees, on arrest, paid by plaintiff, and part of costs in case............... 152 JOINDER, of causes of action............................................. 138 of defences.................................................... 140 of parties. See Parties. 940 INDEX. CIVIL PROIEDURE, continued. PAGE JOINT Debtors, proceedings against, when summons served on one, or some of the defendants only............................................... 137 how made parties to judgment, when not originally summoned............. 193 JOuRNAL, clerk of courts to keep...................................... 175 JUDGE may vacate order of arrest or reduce amount of bail................ 151 powers and duties in respect to injunctions............................ 161 when may appoint receivers........................................ 166 may approve of undertakings by receivers............................... 167 may issue subpoenas for witnesses.............................. 177 See Witnesses. authorized to take depositions..................................... 181 See Depositions. See Motions, Orders, Error in Civil cases. may issue orders of discovery in aid of execution........................ 206 when to issue warrant for arrest of debtor.............................. 206 examination of debtor, by..................................... 206 may order an undertaking to be given by debtor.......................... 206 may examine other parties, in respect to defendant's property............... 207 how parties or witnesses examined............................... 207 application of debtors' property by............................... 207 may appoint receiver and prohibit transfer of property................... 207 may continue his proceedings.............................. 2C8 may order a reference.............................. 208 may punish for disobedience of his orders............................... 208 shall reduce his proceedings to writing.................................. 209 shall allow compensation to officers................................. 209 his compensation, what............................................... 209 JUDGMENT, rendered out of this State, plaintiff in replevin shall not have possession of property on............................................ 237 foreign, not to be higher evidence than original claim...................... 850 how pleaded....................................................... 144 may be amended........................................ 146 what, in action for the replevin of property.............................. 153 what, in attachment............................................... 161 defined generally........................................ 186 may be for or against either of the parties......................... 1.... 86 of dismissal without prejudice to a future action......................... 186 defendant may proceed with counter claim or set-off, though plaintiff dismiss action.......................................................... 187 in that case, full record to be made............................... 190 of foreclosure, sale must be ordered.................................... 187 for conveyance, release or acquittance, to operate as such, if not complied with. 187 on failure to answer, damages may be assessed by court or jury or referee.... 187 by confession, defendant may appear and confess judgment.................. 188 debt, or cause of action, to be briefly stated.............................. 188 release of errors.......................................... 188 warrant of attorney to confess to be produced and filed............. 188 how warrant by person in custody to be executed........................ 188 against garnishee, final, shall not be rendered until action determined........ 236 if for defendant, garnishee to recover costs............................... 236 INDEX. 941 CIVIL PROCEDURE, continued. rAGE JUDGMENT, if for plaintiff garnisheee to deliver up property, &c.......... 236 if against garnishee, execution shall be issued as in other cases............ 236 manner of giving anal entering, in conformity to verdict....................... 189 when court shall order........................ 189 state of pleading to control..................................... 189 in cases of counter-claim or set-off............................ 189 right of infant to appear and show cause against judgment need not be entered 189 to be entered on journal..................................... 189 record of case....................................... e......... 189 when made up and how signed....................................... 189 of what record to consist, but may be abbreviated........................ 189 further time to complete record may be granted............1............ 190 cases in which record need not be made................................. 190 if action is dismissed without prejudice, record may be made on payment of costs thereof............................................ 137 may be opened, when service was by publication........................ 190 effect on purchasers....................................... 137 on application to open, counter affidavits allowed.............. 137 how reviewed, and new parties to be made.............................. 193 before justices of the peace............................... 211 proceedings to vacate, modify or reverse.......................... 234 shall have lien on real estate from the date of transcript................... 233 ho w revived on error................ 215 in actions concerning real property..................................... 224: on official securities................................................ 225, in mandamus................................................ 2271of District Court, fbr what causes may be reversed, vacated or modified, by Supreme Court,233 Supreme Court.........................I................. i......... 233',: JUDGMENT Debtor, proceedings against, after execution, returned unsatisfied..... 205 examination of...................................................... 206 debtors of, may pay amount of indebtedness to sheriff in certain cases..... 207persons having property belonging to, may be examined........................ 207 when may be punished for a contempt............................. 208 See Execution, Proceedings in aid of JuDICIAL Sales. See Execution. JURORs. See Jury, Verdict, Trial by Jury. JURY, mode of impanneling, summoning, &c................................ 168, 238, See Trial by Jury. JUsTICE of the Peace, when suits against, for misconduct in office to. be. brought. 132 may take depositions................................................. 181; depositions may be used before........................ 182 actions against for misconduct in office abate by death of parties. 191 duties of, on claim by third person of property taken under execution.... 195, 196 may enforce: penalties for neglecting to serve as appraisers- under executions against property..................................... 203 - may issue execution against the person of a judgment debtor............... 210 judgment before, transcript may be filed and docketed in office of the Clerk of the District Court.........................211 when to operate as a lien on lands................................... 233. 60 942 INDEX. CIVIL PROCEDURE, continued. PAGE JUSTICE of Peace, execution thereon...................................... 211 transcript to certify the amount paid on............................. 212 costs of transcript and filing the same paid by plaintiff........... 212 error from judgment or final orders of, to the District Court........... 215 to furnish transcripts of their proceedings............................... 216 stay of execution on judgment of........................ 234 shall execute the decision of the court above, if so directed............ 219 if action within his jurisdiction be brought elsewhere, no costs allowed....... 223 costs in action for misconduct in office................................. 223 LANDLORD, may avail himself of tenant's possession in actions respecting real property................................................ 223 LANDS, subject to execution.................................. 194 See Execution. sale of, on execution............................................ 198 sale of, on foreclosure of mortgage.................................... 187 See Aplpraisement. LAw, Common, rule of construction of, not to apply to code.................... 125 See Common Law. LAws of other States and Governments, how proved..................... 185, 107 LEGAL and Equitable Relief, may be asked for in one petition................ 138 remedies, when may be still used................................... 231 LEGAL Estate in Real Property, may be recovered by action............ 224 LIABILITY created by Statute, time for commencing action on................. 127 LIBEL, time of commencing action for................................ 127 rules of pleading and proof in action of................................. 145 action for, to abate by death of parties............................ 191 if plaintiff recover less than five dollars in action of, no costs allowed......, 223 See Slander. LIEN of Judgment, when it attaches to lands or goods.................... 194 when it ceases..................................................... 194 restricted by two-thirds of appraised value of lands levied on............... 198 lost, if execution not leviedin one year................................. 202 of Justices' Judgments, how obtained, and when to operate on lands....... 211, 233 of Judgments and Decrees, not affected by adoption of code.............. 231 LIMITATION, of actions.....................................,.... 126 See Times of Commencing Actions of proceedings in error............................................... 217 LIs Pendens, what constitutes, and effect of.............................. 138 LOCALITY of Actions. See County in which Actions are to be Brought. LOST Pleadings, copies may be substituted............................ 145.LUNATIC. See Disabilities. MAIL, executions issued out of the county may be returned by............... 204 but money not to be sent by, unless sheriff specially instructed............. 204 MAIn Stages or Coaches, where actions against may be brought............... 133 MALICIOUS Prosecution, action for, time of commencing...................... 127 abate by death of parties............................. 191 costs in........................................... 22f, INDEX. 943 CIYVIL PROCEDURE, continuede PAGE MANAGING Agent of a Foreign Corporation, service of summons on..... 135 AND)AMUS, Proceedings on Writ of, to whom and for what issued............. 225 not issued when there is an ordinary' remedy..................... 226 writ, alternative or peremptory........................... e. 226 when peremptory writ may be allowed.....I................. 226 motion therefor................................ 226 how allowed and served...................... I..................... 226 xanswer on-return of writ................... I............ 226 if no answer, peremptory writ must issue................................ 226 no pleading, but writ and answer................................ 227 if judgment for plaintiff, damages recovered and peremptory writ awarded... 227 such judgment a bar to another action................................. 227 when a fine may be imposed....................... 227 MARRIAGE, of party not to abate action................................ 131 MA;RRIED Woman. See Disabilities. when she may sue alone..............D.129, 488, 699, 697, 688 when shetmust join with her husband in the suit.................... 129 how she may defend............................................. 129, 130 3MASTER Commissioner. See Chapter 37. when to assess damages on failure to answer............................ 187 how appointed.................................................... 2, 2 oath of office and security by.................................. 232 fees of................................................ 232 MATERIAL Allegations, what...................................... 145 when taken as true................................. 145 MERITS, decision must generally be on............................ 187 MINISTER of the Gospel, when incompetent as witness........................ 177 MINISTERIAL Officers, duties of may be performed by deputy............... 229 may require person offered as surety to qualify.......................... 220 MINOR. See Infant. MISJOINDER of Actions, court may direct separate suits..................... 140 MISTAKES in Pleading. See Pleadings, Amendments. MisPRIsON. Clerical Errors. MORTGAGE Cases, sale of lands on foreclosure.............................. 187 MOTION, defined........................................ 214 may include several objects..................................... 214 notice of........................................................... 214 how served........................................................ 214 fees of serving........................................ 214 court or judge may direct notice of motions to strike pleadings and papers from files............................................................. 214 to appoint guardian ad litem.......................................... 130 to supply parties, on disability or transfer by original parties................ 131 for an order to be made party to a suit......................... 131 to obtain interpleader................................ 131 for substitution as defendant in action against sheriff by plaintiff in the execution......................................................... 131 to change place of trial........................................ 133 by defenda.nt, served by publication, to open judgment.................... 137 944 IN.DEX.CIVIL PROCEDURE, continued. Arm MOTION, to strike redundant or irrelevant matter from pleading............... 143 to make a pleading definite and certain............................ 143 to withdraw counter claim or set-off, or make it the subject of a separate action 144 for a continuance, or anendment..................................... 147 by bail for stay of execution on proceedings against them.................. 151 to vacate order of arrest......................................... 151 by plaintiff in attachment, for appointment of receiver.................. 158 for disposition of property, pending attachment........................ 158 to discharge attachment..........1........ 162 or for additional security on........................... 162 for order of attachment before claim due................................. 163; to obtain order of injunction.................... 164 to vacate or modify injunction................................... 166 to appoint receivers................................................ 166 for a reference.................................1............. 172' for a new trial.......................... 174 time of hearing....................................................... 176 to obtain inspection, or copy of books, papers, or documents........... 184 for the revivor of actions....................................... 192 for the revivor of judgments........................................... 194 to amerce sheriff or clerk for misconduct, on execution against property...... 203 to obtain examination of judgment debtor............................... 205 for arrest of judgment debtor in proceedings in aid of execution............ 206 to obtain examination of debtor of judgment debtor........................ 206 See Proceedings in aid of Execution. to obtain order of arrest of the person on execution..................... 210 to suspend execution of special mandate................................ 218 to vacate judgment for error, coram nobis............................... 220 for an injunction of judgment sought to be reversed on error............... 221 costs of...................................................... 223 for the writ of mandamus........................................... 226 NAME Fictitious, when party may be sued by.............................. 147 NEGOTIABLE Instruments,............................................. 112 parties to actions on.......................................... 130 how stated in pleading............................................ 144 copy of, sufficient................................................ 144 costs of; several actions on............................................ 223 NEw matter, in answer, when plaintiff may reply to....................... 141 in the answer, not controverted by the reply, to be taken as true............ 236 in the reply, to be deemed controverted as upon direct denial................ 236 NEW Parties, to judgments how made................................... 193 NEW Promise, to take case out of limitation, must be in writing and signed..... 129 NEw Trial, for what causes may be granted............................ 174 for what causes may not be granted.................................... 174 application for, when to be made.................................. 174 how application to be sustained................................ 175 in actions for the recovery of real property............................... 224 NEXT Friend, married women, suing or defending without her husband, must sue or defend by................................................ 130 INDEX. 945,CIVIL PROCEDURE, cotirnued. PAGB. NON- Obstante Veredicto........................................ 1,. 189 NON-RESIDENT plaintiff, must give security for costs........................ 222 proceedings on such security...................................... 222 NON-RFSIDENT, attachment against property of............................ 154 NON-SUIT........................................o e o.... 197 See Dismissal of Action. NOTES. See Negotiable lizstruments. NOTICE, on application to open judgment, when service was by publication..... 137 See Lis Penzdens. of the filing of an amended pleading, to be given to opposite party........... 146 requisite, if supplemental pleading filed............................ 147 requisite to adverse party, on motion to consolidate actions................ 147 of exceptions to bail........................1......... 149 of justification of bail....................................... 149 on application. for injunction........................................... 164 on motions in attachment............................... 162 on proceedings to obtain inspection or copy of book or document.. 184 in proceedings to perpetuate testimony...........1.................. 185 of appraisement of land to be sold on execution, &c. See Chapter 172 of sales on execution against property.............................. 197 on offer to confess judgment before action.............................. 213 of a motion, requisites............................................... 214 how served.................................................... 214 of motion to strike pleadings and papers from files, to be as court directs..... 214 of proceedings in error coramre nobis...............e........ 22'0 in mandamus........................................... 226 See Sutmmons. NUISANCE, actions for malicious prosecution for, abate by death of parties...... 1e91 costs in actions for............................................... 223 OATH, affirmation, to have effect of............................ 229 OCCUPYING Claimants, parties to actions for real property, may have relief, as.... 225 See Claimants, occupying......................................... 121 -OFFER, of defendant to compromise the whole or part of the action.............. 213 defendant may, before trial, offer to allow judgment for a certain sum........ 212 acceptance -of offer.................................................. 212 when offer deemed withdrawn.............................. 212 effect of offer if plaintiff do not recover a more favorable judgment.......... 212 offer, no cause of continuance. I.......................... 212 offer to confess judgment............................................ 213 OFFICER, action against local.................................. 132 OFFICIAL Bonds, action on local.................... O 32 OFFICIAL Securities, proceedings on............................. 225 judgment on, no bar to another action, for different breach.................... 225 OPENING Judgment, when service has been by publication............. 137 See Judgment. OPERATION of the Code, provisions as to rights of action under existing laws, how enforced...................................................... 230 not to control certain special proceedings................................ 230t how statutory remedies may be used...............'..6......... 231 946 INXDEX. CIVIL PROCEDURE, continued. PAGe ORDER. See Motion. may authorize trial of a question of fact, not in issue by pleadings..... 126~ to appoint guardian ad literm............b. 130 to supply parties on disability, or transfer of original parties......e.e oee 131 to be made party to a suit....................................... 131 for substitution of plaintiff in execution, as defendant in action against sheriff 132 -to change place of trial,............................ 133 to open judgment, when desfendant served by publication.............. 37 to strike redundant or irrelevant matter from pleading..................... 143S granting leave to withdsraw counter-claim or set-off, or make it the subject of a separate action....................................................... 144 for a continuance on amendment............................. 147 for consolidating actions, when and by whom made......................... 147 of ar>rest, by whom made................... 147 affidavit to obtain.............................................. 147 not to issue, unless plaintiff gives undertaking... 148 when made..................... 148 form of....................................... 148 to be delivered to sheriff................................ 148 copy to be delivered to defendant......................................... 148 how executed....................................o 148 may be vacated...................................................... 151 for stay of execution —proceedings against bail............................... 15 for the replevin of the property, when to issue.............................. 152 requisites of.......................................1............ 152: execution................................,..........152, 154 for the delivery of property, may be made by the clerk...................233, 23 237 for the delivery ofplqoperty, Supreme Court may reverse.................... 233 of attachment, how directed and executed.............. e I......... 155 may issue to several counties......................................... 153 when returnable...................................... 15G copy of; to be served on garnishee............................... 15~ proceedings under different orders........e.o...e............ 157 return thereon................ 157S before claim due....................................................... 163 for appointment of receiver in attachment................................ 158 to dispose of attached property, court mav make............................. 1 58. for ijunzction, when and by whom granted......................... 164 requisites of................................................ 165 service of............................... 165 when binding.................... 165 disobedience of, how punished.................................. 1615 may be vacated or modified on motion..................... 1656 made by district court, supreme court may reverse, vacate or modify..... 233 defendant may obtain....................... 16 See Injunction. in respect to receivers., how enforced...................G. 1f67 for a reference..................,............................ 17 INDEX. 947 VIL PROCEDURE, continued. GE ORDER. For inspection or copy of books, documents, &c........18 for revivor of actions..................................... 91 for revivor of judgments..................................193 to amerce sheriff or clerk for misconduct on execution against property20 of discoveron proceedings in aid of execution...............205 of arrest of execution....2................................ 09 to suspend execution of special mandate....................218 geer y, defined....2.................................... 15 if made out of court, to be entered on journal as in term......215 PARTIES to Actions, real party in interest to sue.................29 executor, administrator, guardian, trustee, of an express trust, &., may sue without the beneficiary.................................129 officers may sue as authorized by law......................129 when the wife must join with her husbaid —when sue alone...129 how wife may defend....................................130 t sue by guardian or next friend.................130 infant to defend by guardian..............................30 who may bejoined as plaintiffs............................130 who may be joined as defendants......................... 30 parties united in interest must be joined.................... 130 when one or more may sue or defend for all.................130 persons serally liable on written instruments may all or any of them be included in one action...................................0 if parties die, husband, representative or successor may be substituted. 131 if the interests of others involved, they must be made parties.........131 a person interested may, on his application, be made party..........131 how a third party may be brought in to interplead.............131 sheriff may call in.'a third party to defend..........I.......131 in action against officer for property, plain'tiff in execution may be substiuted.. 131 *causes joined must affect all....................I..139 court may dismiss action for want of necessary...............187 See Ex mination of Parties, Witnesses. I1 ART Ser-vice, of several defendants, proceedings on..............137 PARTITION of Real Property. See Chcpter 162 place of trial of actions for......................132 PARTY inl Interest, action to be -in'name of..................129 PAYMENT effect Of; on times of limitation...................129 PENAL Statute, when informer under, liable for costs..............223 PENALTY, a-Ition. for, local.........................132 within what time to be commenced...................127 arrest in........................I.......148 five per cent. on affirmance, of judgment in District Court.........231 PENDENCY of Action, what constitutes, and effect of.............138 PERFORMANCE, of conditions precedent, how pleaded............I..144: P ERISIIABLE Property, proceedings on attachment of.............158 PRRPETUATION of Testimony.....I..................185 petition- to be filed, its requisites................I.....185 order for examination, what it must contain................185 948 INDEX. CIVIL PROCEDURE, continued. PERPETUATION of Testimony, when cross interrogatories must be filed.. 186 depositions, where to be filed..186........ depositions to be approved, and effect of the same186 applicant to pay costs................. PEREMPTORY Mandamus................187 188 PERSON of unsound mind. See Disabilities. PERSONAL Property, time for commencing actiosn for takin, detaining or injuring or for recovery of possession of..12..... judgment in action to recover..153........ See Replevin of Pro erty. PERSONAL Representatives, when action may be revived against..191 PETITION, civil action to be commenced by filing..134 is the first pleading allowed plaintiff.....139 requisites of, ordinarily..1..39......236 See Pleadings. in proceedings to perpetuate testimony... in error, requisites of..215...............,en to be filed in error corarn nobis..2..20 Ehditions to recover real property..224 PLA'E of Trial. See county in which actions are to be broug. when and how changed............... causes of action joined, must not require different..139 PLAINTIFF, the party complaining is..126..... who should be joined as..130............. or made, in case of death, marriage or other disability..............131 See Parties to Action. may dismiss action'before final submission............... 187.non-resident to give security for costs,................222 costs to, when allowed of course.....................223 when not allowed of course.......................219 PLEADINGS in Civil Actions, defined.....................139 rules of, abolished...........................139 forms and rules, as prescribed by code...I................139 what pleadings allowed............139............ petition, what must contain......................... 139, 236 each cause of action to be separately stated and numbered...........139 demurrer, when defendant may demur...........I...........139 must specify grounds..........................140 objection may be taken by answer.....................140 if demurrer for misjoinder of actions be sustained, court may direct separate suits. 140 defendant may answer part and demur to part...............140 answver, what it must contain.........................140 different grounds of defence, counter claim, &C., may be set forth in answer.- 140, 236 counter claim, what....................I.......140 when costs are recoverable on counter claimi or set-off............141 new parties, made if necessar~y......................141 INDEX. 949 ~~~~~CIVIL PROCEDURE, continued.~ ~PAGE PLEADINGS in Civil Actions, set-o when it can be pleaded................. 141 new parties on set-off.................................... 141 when cross demands, deemed compensated.......................... 141 i~~~n adwhat css.141......... o........................... 141...................................................... 141, 236 what to contain.................................... 14236 geveral rules of, times for......................................................... 142 times for, may be extended...................................... 142 must be subscribed........................................ 142 must be verified......................................... 142 when need not be verified.................................. 142 one of sever parties may verify.................................... 142 of what verification may consist...................... 14 2 verificion by nonresident............................ 143 by_ guardian.................................................. 235 verification to be signed and cetified................................... 143 when verification shall apply to amount claimed......................... 143 when verification may be made by agent or attorney..................... 143 pleadings to be liberally construed.................................... 13 fictions abolished.................................... 143 title of cause uncaned.................................... 143 copies of written instruments to be filed with pleadings................... 143 redundant or irrelevant matter to be stricken out........143.... counter, claim, or set-off may be made the subject of a separate action...... 144 facts conferring jurisdiction, need not be stated...............144 performance of" conditions precedent need not be stated............ 144 how written. instruments for the payment of money may be stated.... 144: pleading private statutes......... 144 extrinsic facts need not be stated in action of slander or libel..........145 defendant may allege truth of the matter, and mitigating circumstances.....145 real property must be described in. petition.................145'every material allegation not controverted, to be taken as true....145, 2035, 236 presumptions of law- need not be stated.................145 copies of pleadings may be substituted for originals in case of loss.1......I45 mistakes in _pleading and cnnenclments, variances in pleading not material unless the adverse party has been misled. 145 facts to be found accordingo to evidence, and ama~ndment.....146 if claim or defence is wholly unproved, failure of proof.............146 plaintiff may amend his petition before -answer............... 14-6 amendments on demurrer........................146 party may reply after his demurrer is overruled...............146 eonrt may authorize amendments of pleadings at any time..........146 eourt shall disregard all errors or defects, not affecting substantial rights....146 if demurrer sustained, amendments may be allowed..... -.........146 cour-t may gatfrhrimfor trial, if necessary after amendment......147 suing a party by a fictitious name, when allowed...............147 supplemental petition, answer or reply...................14:7 950 INDEX. CIVIL PROCEDURE, cmontinued. PLEADINGS in Civil Actions, actions which might have been joined, may be consolidated by order of court..........147 the order of consolidation, by whom made147 judgment to be entered according to statement of.189 in mandamus......................227 PRECIPE, for summons................................. 134 PREFERABLE Liens. See Liens. PRESUMPTIONS of Law, need not be stated in pleading145 PRIEST, when incompetent to testify......177 PRINCIPAL, proceedings by sureties against.214, 351 PRINCIPAL and Surety, how judgment against, entered and execution thereon.. 202 PRINTER'S FEES. See Fees Printer's, Chapter 100. to be paid before advertisement by sheriff on executions against propert 200 PRISON BOUNDS, judgment debtor under arrest, entitled to.210 PROBATE Judges to furnish transcripts of proceedings216 stay of execution on judgments removed from.216 how far provisions upon error in civil cases applicable to22 may vacate order of arrest, or reduce amount of bal151 powers and duties in respect to injunctions.164 when may appoint receivers...........166 may approve of undertakings by receivers.167 may issue subpoena for witnesses. See Witnesses. authorized to take depositions..........181 See IDepositions. See Motions, Orders, Error in Civil Cases. may issue orders of discovery in aid of execution..... i.....206 when to issue warrant for arrest of debtor................ 206 examination of debtor by...............................206 may order an undertaking to be given by debtor...I...........206 may examine other parties in respect to defendant's property........ 2 07 how parties or witnesses examined....................207 application of debtor's property by.................... 207 mayf appoint receiver and prohibit transfer of property............207 may continue his proceedings.......................208 may order a reference...........................208 may punish for disobedience ofl his orders.................208 shall reduce his proceedings to writing...................209 shall allow compensation to officers....................209 his compensation, what.........................209 PROCESS, general style of.........................227 general requisites............I............... 22 7 if sheriff a party, or interested, how directed................ 227' if sheriff and coroner interested,7 how directed.............425, 227 when a person appointed to serve.....................228 See Sunmmons, Subpcena, Execution. PRoMIssoRy Notes. See Negotiable Instwmnents. PROOF of Service of Summons, when served by sheriff............ 1135 when served by any other person....I.................135 when served by publication........................137 by acknowledgment or appearance of defendant............... 135 INDEX. 951 ~~~~CIVIL PROCEDURE, contw~inued.~ ~PAGE PROOF of Service of Summons, of laws of other States, &c..................... 185 PROPERTY, execut.................................194 PROVISIONAL Remedies...........147............................. 147 See Arrest an Bil, plevi of Property, Attachment, Injunction, Receivers. PUBLICATION, service by.136................................. 136, 192 See Constructive Service. PURCHASE Money, to be restored by judgment creditor, if j udgment reversed.... 202 PURCHASERS on Execution, title of not affected by reversal of judgment........ 202 QUESTION Of Fact, court may direct trial of................................ 126 See Issae, Trial. QUO WARRANTO, proceedings on, not affected by code....................... 230 See cha~pter 169. RAILROAD Company, where may be sued................................. 133 REAL Property, time for commencing actions for the recovery of........ 1...126, 127 time of commencing action for trespass on............................... 127 place of trial in actions relating thereto................................ 132 must be described with convenient certainty in actions to recover........... 145 actions concerning, to determine adverse estate or interest.................................. 224 statement of plaintiffs..................................... 224 statement of defence................................... 224 statement of plaintiff in action against co-tenriant.......................... 224 recovery, where plaintiffs right terminates during the pendency of an action. 224 actions concernin~g, new trials..............................224 occupying claimants, relief as.....................225, 121 waste, action of, abolished, but its relief preserved..............225 given as security, not to be sold except on judgment.............187 execution for the delivery of.......................211 redemption of, Chapter 171. to be sold, appraisement of, Chapter 172. RECEIVERS, when, and by whom appointed................. 160 party or attorney not to be.......................167 oath and undertaking by........................167 powers of..............................716 investment of funds...........................167 disposition of property in bands of trustee.................167,enforcement of orders..........................167 in attachmnent,,may be appointed............................158 oath and undertaking by.........................158 duties of............................. shall notify those indebted........................158 report by...............................158 sheriff may act as.......................... 158 may be appointed, of the property of the judgment debtor, in proceedings in aid of execution.........................I.....207 sheriff may be appointed........................208 un1dertaking by...........................208 952 INDEX. CIVIL PROCEDURE, continued. AGE REcEIVERS, his sureties liable, if sheriff appointed receiver208 duties of receiver.................... 7 RECORD of a Case, to be made by clerk....189 when made and how signed...........189 of what to consist...................189 may be abbreviated..................189 further time to make.................190 when record dispensed with.................... 90 when made, on paying expenses of......190 complete record, when judgment on counter-caim a set-off190 docket of Court of Record.............175 RECORDER'S Office, notice of his lispendens to be recorded in.18 REDEMPTION of real estate sold on execution, &c. See Real Estate sold, c. REDUNDANT or irrelevant matter to be stricken from pleadings. REFEREES, trial by..................... all issues referable by consent..........172 when reference may be compulsory ordered.172 mode of trial by.....................72 effect of report.......................172 how chosen.........................172 shall sign exceptions..................73 oath by...........................173 compensation of.....................7 may be directed to assess damages on failure to answer.187 REFERE-NCE. See [Lhial by Referees. in vacation, by consent of parties................... 1730 as to priority in attachment may be ordered.................162 judge may order in proceedings in aid of execution..............208 RELEASE, when judgment for, to operate as.................187 REMEDIES are, first, actions, second, special proceedings.............125 REPEAL'of Acts, inconsistent with this act....................120 REPLEVIN of Property, when delivery of personal property may be claimed.. —— 152 judg~ment rendered out of the State does not entitle party to.........237 affidavit of plaintiff and causes for delivery............152,2 233, 237 to whom the order of delivery to be delivered, and its contents........152 when returnable............................ 152A bow executed.............................152 plaintiff to give bond........................ 153 va lue of property, how fixed.............I......I.153 officers' duty and liability as to the property, if plaintiff fail to give bond....153 qualifications of sureties, &c........................153 proceeding s in the action..................I......153 orders may be issued to different counties................154when'officer may break open buildings..................154 when action may be brougght on plaintiff'Is bond.............. 154 when order may be set aside at clerk's costs................1541 REPLY,7 when to be made, and what to contain................141 parties may reply on leave, after demurrer overruled............. 14 6 See Pleading. INDEX. 953 ~~~~~~~CIVIL PROCEDURE,~~ continued.~~ ~PAGF, REPORT, of referee.................................................... 172 REPORTS of Cases adjudged in Foreign States............................... 185 books of, presumptive evidence of the law in such States............... 185 RESTITUTION by judgment creditor, n reversal of judgment................. 202 security for by defendt in error, to remove stay of execution, when........ 217 RETURN of Execution to be within sixty days from the date thereof.......... 204 See Process, Summons, xecutzon. REVIEW, decrees and orders in chancery, heretofore rendered, and in cases now pending, subject to........219..................................... 219 REVIVOR of Actions, when one party dies, &c., action may proceed in name of survivors........................................................ 191 court may continue proceedings when cause of action does not survive, if the case allows.191......................................... 191 action may be revived in certainases.................................. 191 mode....................................... 191 by whom motion made....................................... 192 copyof to beserved............................. 192 constructive service...................................... 192 when defendant dies.................................................. 192 when plaintiff dies....................................... 192 when defendant in real action dies.1................................... 92 against representatives of defendant, after one year....................... 193 in favor of representatives of plaintiff within one year.................. 193 of time for, passed action may be stricken from docket.................... 193 defendant may have case. stricken from docket, if plaintiff fails to r-evive....193 action stands, for trial at term it is revived.................193 REvIveR and new parties to judgments, joint debtors not originally summoned, may be made parties to judgment.....................193 after death of parties.................194 of dormant judgment......................... 194 RIGHT of Property, trial of; to goods and chattels tak-en in execution.......195 RULES, ofpractz'ce, judges of Supreme Court required to frame.................230 of _pleading, as heretofore existing, abolished......139 as prescribed by code......*..................... 139 SALE, of property in attachment........................ 158 on execution.....................I.......... 200 in proceedings in aid of execution.4................. 208 of mortgaged premises, judgment on foreclosure to be for...........187 of real estate not to be- made except on j udgment....187 ScimRE Facias. SeeOrder. SEALED'Instrument, time for commencing action on...........127 SEITRiRT- for Costs,, non-resident plaintiffs must furnish...-........ 222 requisites.and effect of........................ 222 unless given, action dismissed...................222 to be given, if plaintiff become'non-resident after action brought.........222 when additional required-....................... 222 judgment on, against security.*.-... 222.. 954 INDEX. CIVIL PROCEDURE, continued. PA SEDUCTION, costs in action for........... 22 SEPARATE Levies. See Execution. SEPARATE Suits, in cases of misjoinder of actions, court may direct.. 140 SERVICE of Summons. See Co.nmencement of a ivil Action. SET-OFF, effect of assignment on................ 129 what and when pleadable............. new parties on......................, may be miade separate proceeding......14 not affected by plaintiff's discontinuance or default.187 if established beyond plaintiff's demand, judgment for excess189 record of case.......................190 SHERIFF, service of summons by.........135 duties of, ~c., incident to arrest, to execute order by arresting the defendant...148 to deliver copy of order of arrest and affidavit to defendant... 148 to receive deposit of money in lieu of bail..149 to pay deposit into court...149........... to take bail.........................149 to take justification of bail...................... 9 when liable as bail...................... 150 how liability fixed................... 150 rights of, against bail adjudged insufficient... 50 in respect to exoneration of bail...................... 51 duties of, 7.c., incideZnt to attachment......1.0. may act as receiver....................158 pay proceeds..........I.................. 158 duties of, 4.c., incident to repi7evin of property, may be required to take. property.................... 11532 to approve sureties........................... 153 to take property...........152................. t3 leave copy of the order with defendant..................152 liability to plaintiff............................ 1530 powers of, in executing order........................A4 duties of, 4~., incident to execuation against property. shall first levy on goods and chattels, then on lands.............195 whene property is claimed by third person.................195 may take delivery bond.......................197, 1.99 notice of sale..............................197 sale of goods............................197 sale of lands..............................772 See App1raisement. deed by................................199 in respect to printer's fees.........................200 to hold sales at court house.........................200 cannot purchase............................200 separate levies.............................200 further writs to..........,.................. 200 in respect to deeds for lands sold by predecessor...............201 balance beyond execution.......................... 201 when to return writ of execution........................202 INDEX. 955 ~~~~CIVIL PROCEDURE, continued.~ F~PAGE SHERIFF duties o for what causes liable to amercement.................... 203 how amerced.203....................................... 203, 204 may return executions issued out of the county by mail................... 204 but not to send money by mail without instructions...................... 204 notice to amerce sheriff of another county, how given..................... 204 proceedings against sureties of sheriff.................................. 205 attachment against sheriff..................................... 205 SHERIFF may have execution on original judgment......................... 205 may act as master commissioner ill selling specific real property by order or judgment of..................................... 190 when to arrest judgment debtor in proceedings in aid of execution........... 206 may receipt for money paid by any person indebted to the judgment debtor on ~~~~execution~~~ ~..................................... 207 ~~~his powers and obligations as rece........................e....... 208 may serve notices of motions...................................... 214 how served, and fees therefor..................................... 214 if a party, or interested, coroner to serve process.......................... 227 duties generally, to endorse the time of receiving process................................. 228 to execute and return process................................... 229 under what penalties................................................. 229 to adjourn court from day to day, if judges do not attend.................. 229 other powers and duties.........................229 SLANDER, action for, time of commencing...................1297 rules of pleading and proof in......................1450 abate by death of parties........................191 -.costs in................................. 229 QCing.................................. 127 SPECIAL Jurisdiction, facts conferring, may be pleaded generally.........114 SPECIFIC Performance, of contract for sale of real estate, may be brought where defendant resides............................132 SPECIAL Proceedings, certain, not affected by code..............2300 SPECIAL Verdict, defined...............I...... 171 when jury may render..................I.......1.71 when to control general verdict........171 when referees' report to have. effect of..................172 See lVerdict. STATUTE, rule of strict construction og, not to apply to code..........125 _private, how pleaded...........................144 of limitation. See Time for Comnge'ncing Actions. liability erected by, when action thereon to be brought.............127 STAY of E xecution, when. of course on proceedings in error, by the undertaking of the plaintiff in error..............210,6 234 conditions of undertaking.........................................216, 218 substitute for undertaking........................217 may be removed, in an Iaction on contract for the payment of money, by defendant giving security to make restitution................217 on justices' judgments.......................... 218, 234 condition of undertaking...........................218 when court or judge to prescribe terms of.-...218 956 INDEX. CIVIL PROCEDURE, continued. PAGE "STOCK in Trade," meaning of words.................................... 234 STOCKS, how debtor's interest in, may be subjected to the payment of a judgment 205 SUBMITTING Controversy, without action, controversy, how submitted....... 212 case to be agreed upon........................ 212 affidavit that controversy is real....................................... 212 judgment thereon.................................................. 212 record, how constituted......................... 213 judgment may be enforced or reversed as in an action.................... 133 SUBPENA for Witnesses, what to contain............................. 178 how issued........................................................ 178 by whom issued.................................................... 178 how served..... 178 fees for attendance under............................................. 178 punishment for disobeying.......................... 178 witness not to be sued while obeying................................... 180 may contain a clause for production of any book, &c..................... 178 duces tecumn....................... 178 SUBSTITUTION, in case of transfer of interest, pendente lite, transferee may be substituted, as a party to the action....................................... 131 when ordered, in case of two or more claimants of one subject matter....... 131 See Intepleader. plaintiff in execution for sheriff, in action against the latter................ 131 SUIT. See Action. in equity, pending when code takes effect, to be conducted to decree as heretofore............................................................ 219 See Existing Sits. SUMMONS, actions commenced by issue of.................................. 134 requisites of.................................... 134 how endorsed in actions for recovery of money only...................... 134 when issuable to other counties than that where action is commenced....... 134 when returnable................................................... 134 further writs may issue......................................... 135 to different counties, may issue at the same time........................ 135 by whom to be served..............................................135 manner of service........................................ 135 time and manner of service to be stated................................ 135 when officer to return summons....................................... 135 acknowledgment onback summons or appearance of defendant, same as service 135 how served, on corporations............................................. 135 on insurance companies............................................. 135 on agent of foreign corporations........................................ 135 on infants................................................. 136 may be served out of the Territory.................................... 136 See Constructive Service. fees on, when issued out of county..................................... 224 in error, requisites of...................................... 216 issue, service and return of........................................... 216 when issue or service of, waived...................................... 216 SUNDAY, when reckoned in the computation of time........................ 229 INDEX. 957 ~~~~~CIVIL PROCEDURE, continued. ~PrAGM SUPPLEMENTALPleadins, when allowed.................................. 147 SUPREME Court, may revise the proceedings of inferior tribunals, by petition filed on leave of the court or a ju.................................... 215 judges of to frame rules.................................... 230 SURETY, may be required to qualif by ministerial officer......... 229 qualification of................................ 229, 230 to be described in judgment aainst principal and........................ 202 rights of, on execution.................................. 202 SURETIES, Proceedins by, when may require creditor to bring suit against principal, or to permit surety to do so................................... 351 sall be dischaed if creditorse.........................351 may maintain action against principal, to compel him to discharge debt or liability after due..................................... 214 may maintain action before debt or liability due, whenever surety is subject to arrest or attachet..................................... 214 entitled to provisional remedies, as in other cases................ 214 SURVIVOR of Actions................................... 191 TENANT Joint in Common or in coparcenary, when may maintain action against co-tenant..................................... 663 TENANT in Common, of real property, cannot bring action against co-tenant unless defendant denies plaintiff's right.................................. 224 TMto retuam summons, within the county.................184 ~~out of co~unty............................... 134 answer or demur............................146 to reply........................................... 1346 for pleading may be extended.................................... 146 within which to amend of course....................142 of notice to take depositions......................181 to return execution......................... 202 how computed.............................229 of trial, how causes set for trial.................O....176 when cases to be tried.........................176, TIME Of Commencing Civil Actions in general..... 126. special'statutory limitations to be observed............. 126, when infants, married women, insane or imprisoned may bring action.... 127, 128 for -,he recovery of real property.........i............126" other than for the recovery of real property................127 if action barred in States, barred here also..................1231 if commenced in time, and judgment reversed, one year to bring a new action. 129 how cause of action may be taken out of limitation..............129~ TITLE, of a cause unchanged in any stage...................143. TRANSCRIPTS, Must be filed with petition in error.. *..216; probate j udges, justices of the peace and clerks, must furnish.. 216, may be compelled to do so........................219; of justices, judgment, may be filed and docketed...............211, effect of filino, and docketing................... 211, 233 TAsEtOf Property;, when judgment debtor "May be forbidden to make... 207' of inerest, of party to action not to abate it...,. 0I131' 61 958- INDEX. CIVIL PROCEDURE, continued.AG:TRANSFER of Property, name of the assigneemay be substituted131 TRESPASS to Property, time for commencing action thereon127 TRIAL in General, definition of............168 issues of law tried by the court, those of fact by jury, unless waived or referred 168 other issues by the court................ 68 further time may be allowed for, by court after amendment.17 of action when revived...............193 TRIAL by the Court, trial by jury may be waived, and cause submitted to court, when and how.....................171 court need not state facts specially unless exceptions are filed...... 171 See Exceptions. provisions concerning jury trial to apply.. 75 TRIAL by Jury, right to, of a party in default of answer... 187 order of trial.......9................. view by jury......................... duty of jury after case submitted........169 separation of jury....................170 disagreement of jury..................170 discharge of jury......170............... manner of delivering verdict............170 jury may be polled....................170 verdict must be in writing and signed by foreman.170 court may correct errors in form of verdict170 verdict may be either general or special..171 jury may render a general or special verdict.171 if special finding is inconsistent Iwith general verdict, the former controls....171 jury must assess the. amount of recovery.................171 TRIAL Docket............................175, 176 TRUSTEE, disposition of property in his bands which is subject of an action. 167 TRUSTEES of an exprems trust may sue without joining party in interest.....129 TURNPIKE Company, actions against, where may be brought..........133 UNDERTAKING, on arrest, by plaintiff, to indemnify defendant, if order wrongfully obtained..............................148 by defendant that he will be. amenable to process of court........148 on rplein o prperty, by plaintiff before delivery15 on attachiment, requisites of..........155 by third person, to retain property attached in his possession.........156 by defendant, to discharge attachment..................159 on injunction, requisites of........................164 additional security........................165 by receiver.............................167 by plaintiff in execution to retain property adjudged to belong to a claimant... 197 by defendant in execution, that property levied shall be forthcoming......197 by juqdgment debtor, that he will attend for examination...........206 to obtain stay of execution, on proceedings in error.............216 by defendant in error, of restitution, on removal of stay...........218 person offered as surety may be required to make oath of his qualifications..220 qualifications of sureties......................230 -executors, administrators and guardians, who have given bond, may stay execution on error, without further undertaking........231 INDEX. 959 CIVIL PROCEDURE, continued. PAa, UNDERTAKING, plaintiff in error shall execute..............234 UNKNOWN Heirs, proceedings in actions against......................... 137 UNSOUND Mind, persons of, incompetent to testify.......................... 177 See )Disabilities. VARIANCE, in pleading, when deemed material 1................. 145 may be amended on terms........................................ 145 - if immaterial, to be disregarded........................................ 14 if immaterialthedseadd 145 VENUE, may be changed................................................ 133 See county in which actions are to be brought. VERDICT, how delivered............................................... 170 form of................................................... 170 may be general or special............................................. 171 general, defined................................................... 171 ~pecia4, defined...-.......................................... 171 what it must state.................................................... 171 when court may direct................................................ 171 to be filed and entered on journal.......171 controls general verdict............................................. 171 when report of referee to have effect of................................... 172 general or special, when jury may render at their discretion............ 171 amount of money recovered to be stated in.................. 171 judgment to conform to................................... 71 if special, court to order what judgment to be given....................... 189 VERIFICATION of Pleadings, generally.......................... 142 of fact........ 235 wha ned nt e vrifed........................................... 4 what need not be verified............... 142 one of several parties may verify............................. 142 what is sufficient....................................... 142 by non-resident.............. 1.....- 1 43 to be signed and certified.......... I........... 143 when to apply to the amount claimed.................................. 13 by agent or attorney.............................................. 148 on petition to perpetuate testimony.................................... 185 VOLUNTARY Appearance, of defendant, equivalent to personal service of the summons..................................................... 135 WAIVER, attorney may waive in writing the issue or service on defendant of summons in error................................................. 216 of errors, summons in error not to issue where proceedings certain, unless on leave................................................... 231 WARRANT of Attorney, to be filed when judgment entered on confession by..... 188 if executed by a person in prison at the instance of the creditor, to be attested by the debtor's own attorney....................................... 188 WASTE, action of abolished, butrelief to be obtained by civil action.......... 225 WIFE: when incompetent to testify......................... 177, 236 See Husband and Wife, Married Women. WIT, proceedings to establish or set aside, not affected by code... 230 WITNESSES, who competent to be................ 236 who disqualified fronim being...................................... 236 in suit for or against wife in her own right, she may be a witness, if husbialnd be joined as a mere nominal party..................................... 23 ~960 ~I~~NDEX. CIVIL PROEDURE, continued. A WITNESSES, competency of, parties, or persons interested, or convictec kd ~......... e. i e ~ e e ~ ~ e.e e. *. ~ ~ ~ ~ ~ I 7 * e ~ ~ * disqualified.......... 170 exceptions to rule...................................... 17 adverse party may be compelled to testify................. 17..7 exceptio. 1 e 7 e 7e I..... e. ~. e ~ ~ ~ ~ ~..e ~ I ~ ~ ~ ~ ~ ~ ~.. 1 7 who competent as, how incompetency removed.......... 177 eans of producing, subpcena, what to contain....................... 177 ow issued and served................................... 177 witness not compelled to attend beyond the county of his residence...... 17 witness fees....................................................... 17. proceedings against witness for contempt..... 17.............. conivict, how examined..... 1.790 V ex am in ed.................................. witness not liable to be sued, when........................ 180 fees, when he may demand.................................. 180 oath................................., 180 mde of. king the testimony of7 affidavit.e...... 1....80 Seafadvit.... depositions............................ 18.. See Depositions. in proceedings in aid of execution..................199..... WRITINGs. See Admission. and Inspection. WRITTEN Instruments, time for commencing action on... 127 2.......32 copies of to be filed with pleadings..... 143.................... for pament of money, how stated in pleadings..... 144 costs,recoverable but once in several actions on the same.... 23 WRIT of Mandamus..................... 2215 WRiTs Abolished, expressly, certiorari...................219 error................................. 219 waste.................................. 225 byimnplication.............................. 12G See Provisional Remedies. CODE OF CRIMINAL PROCEDURE. ABATEMENT, plea into be sworn to, or otherwise........... 257 ABETTING, commission,of offence, how regarded.................252 A-oscoNDING, Of person indicted, cause of continuance.............. 250 Acc-EssoRy after the fact, may be indicted................ 252'AccESSORY, indictment against, where may found................ 253 where may be, punished.................241 ACQUITTAL a bar to another indictment, when.................267 AcTION shall not be barred for omission to note default, &C...........240 attorney may proceed by, against bail................... 250 rules governing such action........................256 shall not be defeated for formal defect, &ci................. 250 title of; must be stated in indictment....................251 ADMINISTRATION1 of effects Of'person sentenced to imprisonment for life...... 283 AFFIDAVIT must contain title of the court...................251 AFFRAY person who shall make in presence of magistrate may be committed... 239 AIDING the commission of an offence, how reg-arded...............252 ALiEw nDot entitled to jury of part aliens...............9...a-262 ALLEGATION inlindictment, when not essential....,.,,o*,$......252 INDEX 961 CRIMINAL PROCEDURE, continued. -rAa, ALLEGATION in pleading a judgment, how may be stated................. 252 ANIMAL stolen, when may be sold..................... 278 APPEAL, when may be taken to the Supreme Court, by defendant......... 274 when may be taken by the State...................................... 275 within what time... *.............................. 275 how taken........................................................ 275 notice of, how given......................................... 275 taken by the State, shall not stay judgment in favor of defendant........... 275 by defendant, does not stay execution.................................. 275 of transcript on appeal by the State................................. 275 when shall stand for trial.................................... 275 one or more joint defendants may have................................. 276 duty of appellate court.............................................. 276 shall not be dismissed for informality.................................. 275 if judgment affirmed it must be carried into execution..................... 275 APPELLATE Court, powers and duties of; in criminal cases................... 276 ARGUMENTS how conducted....... 266 in appeals, not to refer to former verdict............................... 274 ARRAIGNMENT, prisoner not to be asked how he will be tried....... 0......... 257 what deemed a plea of not guilty.......................... 257 ARREST and Examination of offenders........ 242 wha magistrates shall have power to issue process for................. 242 warrant for, when to be issued...................... 242 when offender has fled..................... *..................... 242 of b ii. and recnizanc e o n................................'..... 243 when prisoner charged with capital offence, where to be taken.............. 243 until after made, the indictment not to be inspected....................... 253 definition of:.................................................... 254 how made......................................................... 254 officer must show warrant when......................................, 254 necessary means may be employed................................... 254 if person escape, may be pursued and taken............................. 254 when defendance, court may order.................................... 270 efficers may break doors, windows, &c.................................. 279 on complaint of intended breach of the peace........................... 239 ARREST of judgment, when may be ordered.......................... 274 effect of........................................................... 274 court may order re-arrest of defendant................................... 274 appeal may be taken on............................................. 275 ASSESSMENT of value of property stolen, embezzled, &c.......................2..263 of punishment by the jury........................O....... 268 by the court..................................................... 269 of punishlment, higher or lower than law allows, how to be entered......... 269 may be reduced by court, when....... 269 ASSIGNMENT of counsel for prisoner by court............................. 257 ASSISTANCE, officer making arrest may command...................... 254 ATTACHMENT of magistrate for refusal to return examinations and recognizances 246 writs of, when returnable............................................. 251 ATTEMPT tO Commit ain offernce, when indictment may be found for............ 253 962 INDEX. QRIMINAL PROCEDURE, continued. PAGE ATTORNEY, prosecuting, shall cause witnesses toesummoned when.243 examinations and recognizances shall be returned to.246 must sign indictments............................ 0 shall indorse name of prosecutor..25..... shall attend the grand jury when required.248 shall not attend, when...................248 cl1rk to issue subpoenas or other process...248 may file another indictment in case of loss.253 sha l not disclose fact of indictment foun when253 may direct warrant to be issued to another county.254 may proceed against bail, when..... 256 how to conduct trial............................. 66 may attend executions.................. 272 notice of appeal must be served on......275 may order change of venue for trial of indictment against the judge of the court 258 shall ttend inquests of insanity of convic..2 of pregnancy of convict............... 272 BAIL, when mag strate may admit to..243.... to be certified on warrant by magistrate........ 24 person charged with capital offence, not to be admitted to245 to be allowed in other cases........... 2.5 to be admitted after commitment, when.. 24 when process to issue against...........24 all offences bailable except murder.......24 court must order amount when.. 25 when writs of attachment have been issued.................254 who may take and approve.....................255 when sheriff may approve.........................255, when sureties desire to surrender principal, proceedings................ 25,5 when forfeited................................ 255 when prosecuting attorney may proceed against. 256, may be required by the court in addition to sentence............ 269, BANK, charter of, may be proven without copy.....2614 BAn, to action on recognizance.................... 24G discharge to give testimony bar to another action for the same offence.. 267 BILL of Exceptions, to he certified, on appeal.............. 275 to be settled, signed, sealed, and filed as in civil cases..... 266 BOAT, jurisdiction when offence committed on hoard............ 241 BOOK, to'be kept for record of indictments......... 252BOND, to be given by trustee, of estate of convict for life.............. 284 BUILDING may be broken into to make arrest.............. 27a BURGLARY, property taken by, to another county, jurisdiction in either........-. 241 CERTAINTY requisite in indictment.,.....,.,......~ 251 CHALLENGE of Grand juror, by person charged with offence.,... 247of j urors on trial........,,........ 262. of juror who has been a witness, in the case............ 2 633 other causes for..........................26,1 CHARGE to,be given the jury by the court',. ~..,.2 INDEX. 963 CRIMINAL PROCEDURE, continued. PA.Gi. CHARGE, when j urors separate during- trial........... 267 to be given in wtriting when requested.............................. 268, ~what must be stated.............................. 268................................ 268 CLERK may discharge surety on deposit of amount of bail...................... 246 to record indictmen..................................... 252 shall not disclose till after arrest..................................... 253 to issue warrants on indictments, when................................ 253 to issue summons for witnesses, when................................. 253 to indorset................................... 254 when may fix amount of bail....................................... 254 must recordrecognizance taken by peace officers........................... 255 misprison o shall not defeat........................................... 256 costs to be taxed aainst for unnecessarily subpoenaing witnesses.......... 282 spenalty for neglect to make.................................. 282 nalty for neglect to co1ectfee bill when allowed........................ 283 to issue subpenas for witnesses for grand jury........................... 248 to make copy of indictment when requested by defendant............... 256 to makue transcript on change of venue.............................. 261 to file transcript on chane o e................................... 261 penalty for neglect or refusal toperform duty in relation to change of venue... 261 shall enter judment of court upon conviction.......................... 270 shall certify transcript of such entry to sheriff.......................... 271 shall certify copy of sentence to sheriff............................... 271 may witness hanings...................................... 272 shall issue (Executions for fines and costs.................. 273 notice of, appeals to be served on..................... 275 of grand jury, how to be appointed..............*...248 COMPLAINT, proceedings on...............I........... 242 when person charged has fled from the county........... *.....242 when magistrate may associate another with him............... 246 when made of threatened offence................238 COMPLAINANT, on failure of to appear, defendant to be discharged..........240 to be examined on oath, by magistrate..............................242, 244 witnesses to be summoned on application of................. 243 in charges of theft and embezzlement,......I........ 276 CMIMENT of defendant by examinin'g Magistrate............ 245...,of witnesses, on refusal to recognize..................... 245 of defendant on failure to pay fine and costs............... 270 of prosecutor ou failure to pay costs.................... 270 of defendant after arrest of judgment.................... 274 to be executed'by sheriff in all cases.,............ 279 CoMmissioN to take depositions when witness. sick, infirm, &C...257 prosecuting attorney may join...................... 258 proceedings as in civil cases..............4........... 258 may be issued in behalf of defendant.................... 258 COMMUTATION Of punishment, when may be granted.......... 272, 273'COMPENSATION of trustee of estate of convict...................286 COMPE TE NCY of grand juror may be excepted by person charged..........247 CJONCEALMENT'v time of, not to be included in limitation....... 242 964 INDEX. CRIMINAL PROCEDURE, continued. PAG CONDITION, defect of in recognizance, not to defeat the same................. 256 CONSCIENTIOUS opinions, ground of rejection of jurors263 CoNsPIRACY, overt acts of, must be alleged and proven before conviction.26 CONSTABLE may execute search warrant..276 CONSTRUCTION of words in indictment, rules of251 of words in statutes.................. 251 CONTEMPT, magistrate may be proceeded against, as for, for neglect to return examinations and recognizances.... 246.... of juror ior declaring fact to his fellow jurors, and not to the court and defendant...........................267 where witness committed for, shall give recognizance...249 rules in civil cases to apply here..26..... CONTINUANCE not to be granted for non-attendance of witness whose name is not indorsed on indictment............. 50 to be had from term to term, when defendant abscond.256 witnesses may be required to enter into recognizance on262 may be granted as in civil cases........264 when to be granted on application of defendant for discharge, after second term. 265 CONVICTION may be had of either of two offences charged.253 must be of the lowest degree in case of doubt.266 shall be a bar to another indictment for the same offence.. 267 CoPY of indictment, defendant may be tried on, when original lost.252 indictment, defendant entitled to..25..... COUNTY in which offences shall be punishe.240 when offence committed, part in one and part in another, jurisdiction in either.- 241 when offences committed on boats....................2411.of jurisdiction of certain offences named...................241 of property taken from one county to another................241 in which accessory may be punished.................241, 253 when defendant shall flice from that in which offence was committed... 2412, 243 a mistake in. name of; not ground for quashing indictment...........252 to which warrants shall issue.,.....................254when, prosecution commenced in wrong, county, proceedings......... 267 costs to be paid by that in which offence is committed........... 281 COUNTY Commissioners to examine fee bills.................281 may make allowance for ironing prisoner, medical services, &c....... 282 COUNSEL, person charged, may have assistance of; on examination.........244may be assigned by court, when prisoner unable to employ.........257 COURT, upon appearance of party recognized to keep the peace, proceedings of.. 240 to order prosecution of recognizance, when.................240 to order compulsory process for attendance of witnesses...........248 proceedings of; when witnesses refuse to testify befbre grand jury.....248, 249 when may summon another grand jury..................249 shall appris~e grand juries of their duties relative to disclosures........249 may direct clerk to issue warrant when indictment found...........253 must order amount of bail to be given by person indicted..........254 also amount to be given in case of attachment........I.......254 must charge jr..........................266 must recognize defendant if discharged for mistake of grand jury.......267 INDEX. 965 ~~~~~CRIMINAL PROCEDURE, continued.~ ~PAGE COURT, when shall increase punishment assessed by jury e................ 269 when to diminish punishment assessed by jury.................. 269 when may increase or diminish punishment................. 269 must admonish grand jury when permitted to separate during trial......... 267 may order warrant for arrest, if defendant fail to appear.................... 270 may order chane of venuewhen.................................. 258 may suspend execution of convict................................. 272 may fix the time of execution..................................... 271 shall issue writ of habeas corpus for convict, when........................ 273 ma grant new trials, for what causes....................... 274 may ordr view of placeby jury, when................................. 279 shall assess punishment, when jury fail to do so........................ 269 CORPORATION included in the term "person," when...........,,,.280 CORRUPTION of sheriff in impanneling jury cause of challenge................. 279 COSTS to e certified to county commissioners........I.......... 283 to be delivered by clerk to judge and prosecuting attorney........ 282 jude and attorney to examine and certify............................... 283 when to e taxed aainst clerk................................. 282, 283 to be paid by county, when..281, 282 to e paid by prosecutor, when..................................... 281 liability fixed by grand j lusive..281 juryico...............................28 when prosecutor condemned to pay, execution shall issue............... 281 county commissioners to examine before allowance............... 281 ury, on trial shall determine who shall pay............................. 281 in all cases not otherwise provided county shall pay..282 no costs incurred by convict except for hoard, to be paid by county. or State. 282 not to be taxed for subpoena or recognizance after witness once recognized or subpomenaed............................282 allownce b couny commissioners for ironing prisonersfe,&. 8 of no more than three witnesses allowed to establish one, fact.........238 when may be paid by surety, who shall be discharged..........255, 246 how to be allowed on change of venue...................261 when defendant adjudged to pay, on default, to be committed........270 when prosecutor adjudged to pay, on default, to be committed....... 270 imprisonment to be one day for every fifty cents of fine and costs.......270 yet, execution may issue for the same...................270 clerk shall issue execution for......................273 execution may be stayed for, on appeal by order..............275 to be paid by prosecutor when true bill not found..............250 DATE, represented by figures, not ground for quashing indictment.......252 DEATH caused in one county, and occurring in. another, jurisdiction in either.... 241 if offence punishable with, prisoner to be conveyed to county where warrant issued..............................243 prisoner not to be admitted to bail....................245 warrant of execution of sentence, of to be delivered to sheriff.........271 must be inflicted by hanging......................271 in case of death of convict for life, trustee, how to dispose of property.....286 DEFAULT to be certified by magistrate, when...............-245 to he recorded and process issued, when..................246 966 INDEX. CRIMINAL PROCEDURE, continued. PA DEFAULT, how released by surety.........246 discharge not to be had on, by neglect to record246 DEFENDANT sufficiently described in indictment, as a person whose name is unknown to the grand jurors...........251 may be found guilty of less offence than that charged....253 may be convicted of either of several degrees charged253 if not present when necessary, warrant may issue for his arrest.270 when appearing for judgmenrt, must be informed of verdict.270 execution to issue against for fine and costs, when.270 if appeal taken by, notice to be served onprosecuting attorney.275 to be discharged on reversal of judgment against.276 may have witnesses examined by commission, when258 may have subpoenas and compulsory process257 shall take notice of change of venue.....261 with consent of prosecuting attorney, may submit trial to the court.262 may challenge jurors, for what causes...262 DEFENDANTS, one or more of, several indicted, may be convicted or acquitted.... 252 presumed to be innocent..266............ may be discharged to be witness for the State..267 if one appeal, others not to be affected thereby... 276 DEFINITIONS in Code of Civil Procedure, adopted in this act..280 DEGREES of offence charged, how considered.253 266 267 DEPOSIT of money may be made in lieu of bail..255 may be returned to defendant, when....80 DEPOSITIONS, when commission may issue to take................257 DESTRUCTION of indictment no cause of delay of trial..............253 DIscHARGE of defendant mayv he had on deposit of money............255.of bail, upon surrender of principal.....................255 of defendant on recognizance before commitment on complaint of threatened offence........I...................239 afte cmimnin like case.....................239 of defendant for non appearance of complainant,, in like case.........240 of prisoner when charged with having committed an offence.........245,on hail, when thus charged.......................245 when defendant not tried till after second term after indictment.......265 when not until after third term.....................265 of defendant to be a witness for the State.......I..........267 of jury without prejudice to prosecution..................267 DISCHARGE, of jury without rendering verdict, when aldnoaper268 of defendant when unable to pay fine and costs............266 of defendant when judgment reversed.....I...........276 DIscLosuREs, j ury to be charged in relation to................249 Doous may be broken open in making arrests................279 DUELING, of the local jurisdiction of................. 241 DWELLINGS may be broken open in mak-ing arrest..............279 EMBEZZLEMENT, property taken by to be valued on conviction..........268 search of property secluded by......................276 ENCLOSURE may. be broken open in making arrest...............279 ERuons, technical not to be regarded by appellate court............276 INDEX. 967 CR~IMINAL PROCEDURE, continzed PAGE ESCAPE of defendant frm the county, officer authorized to pursue and arrest in any county in the State................................... 242, 254 ~ESTATEOC ifl ds d of................................. 283 trustee to e appointed y probate court.............................283, 284 EVIDENCE on trial, how to e produced................................... 266 1received by the jury, not authorized by the court, ground for new trial....... 274 EXAMINATION Of person charged with, or being about to commit an offence...238, 239 of person chared with having committed an offence................... 243, 244 to e certified to countyattorney..................................... 246 of hail as to..................................... 255 of witnesses, sick, infirm &c..................................... 257 EXCEPTIONS not affecting substantial rights of parties to be disregarded, on appeal.276............................................ 276 to be made as in civil cases..................................... 265 EXPERT ay be called to testify as to the genuineness of bill, note, draft, &c. 265 EXECUTION to issue On forfeited recognizance.............................. 256 may issue notwithstanding imprisonment of defendant for failure to pay fine and costs......................................... 270 of sentence of death where and how to be performed..................... 272 must be issued by the clerk for fines and costs........................... 273 notstayed by an appeal, except for fine, or fine and costs only........ 275 of sentence of death shall be suspended when convict has become insane.... 272 FACTS constituting the offence, o be stated in indictment................ 251 constituting the jurisdiction in pleadin.g a judgment, must be estab.lished on trial................................252 FACTS in personal knowledge of a juror must be stated to the court.......267 if presented in the charge of the court, the jury must he informed that they are the excinsive j udges thereof....................268 stated in indictment, not constituting a publi c offence, ground for arrest of judgment..............................274 FEES of keeper for returning. convict for new trial,..............280 witnesses not entitled to tender of in criminal cases.............257 FEE-BILL to be made out by the clerk....................282 to be examined and certified by j urdge and prosecuting attorney.......283 original to be preserved by the clerk....................283 FELONY, an accessory to, after the fact may be proceeded against tho' the princ-ipal he neither indicted nor. tried....................252 FELONY, person indicted for, must be present at trial.............263 one jointly indicted for may he tried separa-tely if he desire.........265 reward may be offered for person charged with, on escape or concealment....280 FIGUREs, dates and numbers in, indictment represented by, not ground for quashing or setting aside the same......................252 FiNE, if judgment be for, defendant must be present, unless, &c.........270 defendant to be committed on default of payment of.............270 execution to be issued for by the clerk.................2-7 3 eetinmy be stayed on appeal, by order............... 275 to be pi id into the county treasury.....................282 FooD, jury, on deliberation, shtdll not be allowed, except by order. 268 968 INDEX. CRIMINAL PROCEDURE, continued. PA FOREMAN must indorse indictments, how...249 250 when indictment found on information of members shall sign statement to that effect............................. 250 must present indictments to the court....250 to be appointed by the court...247......... form of oath to be administered to.. 247..... may administer oaths to witnesses...247.... FORFEITURE of bail, when declared.. 255..... collectable on execution, although he be afterwards arrested... 256 of clerk for neglect relative to the change of venue..261 FoRMS of pleading, in criminal actions, consist of what...239 defect of, in recognizance not to cause defeat thereof...256 FRAUD, verdict to declare value of property taken by..268 FUGITIVE from justice, how to be recovered...279 expenses attending recovery, how to be paid279 GAMING, witness competent though concerned as a party:... 265 GENUINENESS of note, bill, &c., three witnesses requisite to prove, except in case of larceny thereof..................265 GOVERNOR may respite prisoner sentenced to be hung272 may after inquest of insanity, appoint time and place of execution of person respited..........................72 or may commute the punishment......272 may exercise like powers after inquisition of pregnancy of female convict. 273 may issue warrant to receive fugitive fromjustice..279 may offer reward for apprehension of felon when............. 280 GOVERNOR, power of, in granting pardon.................. 280 GRAND j ury, constituted of how many..K................... 247 foreman of; how appointed........................247 oath to be administered to.......................24:7 for what causes may be challenged.....................247 -may appoint one of their own members, to act as clerk............248 may require advice from prosecuting attorney................248 members of may be required by the court to testify and make disclosures, when...............................249 shall not be obliged to testify, or disclose, what...............249,253 when deemed guilty of a misdemeanor..................249 twelve must concur in indictments....................249 member of not to serve as petit juror, when.................263 decision of relative to liability for costs conclusive..............281 GUA~RDIAN may apply for chang~e of venue, when................ 259 HABEAS Corpus, when covc a b ruh beoe court, on writ of..... 27 HANGING, to be the mode of punishment of death..............271 IMPRISONMENT Of person for failure to pay fine whene to cease~.......... 270 in county~ jail, sentence of how executed..............I...... 271 hNDICTMENT, fact of, not to be disclosed by grand juror till after arrest.......... 249 4t~welve jurors must concur in finding.....................,... 249 foreman shallindorse....................I..... 249 when not a true bill...........................250 shall be presented to the court by foreman.................250 INDEX. 969 ~CRIMINAL PROCEDURE continued. PAGE INDICTMENT, when not to b preferred without indorsement of name of prosecutor............................................................ 250 may be preferred on information of two or more grand jurors............... 250 name of prosecutor, how to be endorsed................................. 250 when not to be quashed for want of indorsement...................... 250 if not a true ill, prosecutor to pay costs.................... 250 must be signed by prosecuting attorney.....................2........... 250 judge must examine..................................... 250 names of material witnesses must be indorsed thereon...................... 250 the first pleading on the part of the State............................... 251 what it must contain................................................ 251 must be direct and certain................................... 251 precise time of commission of offence need notbe stated................... 251 ineed not state names of l of joint offenders........................... 251 words o how to be construed..................................... 251 when to be deemed sufficie...................................... 251 ma not be quacts................................... 252 what need not be stated in..................................... 252 must be recorded by the cler...................................... 252 proceedings in case of loss or destruction of.............................. 253 what in custody of clerk...................................... 253 need not state names of all of several partners............................ 253 shall not be noe prossequied, except by order of the court.................. 266 of proceedin on when wrong name stated.................. 266 for what causes may be quashed......................266 venue of may be changed when defendant prosecuted in wrong county.....267 when quashed or set aside, Sta~te may appeal.................275 to be tried at first- term of court........................256 INDORISEMENT of Indictment.......................249, 250 INQUEsT Of Insanity of convict........................272 of pregnancy of female convict..................... 272 INQUISITION Of Insanity, how signed, transmitted, &c............272, 273 INSANITv Of Convict, how ascertained................... 272 INTERROGATORIES,, on commission to take depositions..........257, 258 INTE REST of j udge, ground for change of venue................258 JAILOR -to keep prisoners in transitu....................279 JUDGE may admit prisoner to bail....................246, 254 must examine indictments........................250 a peace officer..............................238 must compare indictment with the record thereof..............252 for what causes may order change of venue.........I........258 may discharge prisoner confined for non-payment of fine and costs....... 27 0 may stay execution on appeal, when...................275 must examine fee bills.........................283 JUDGMENT, not to be arrested for neglect to record default of recognizance.....246 how pleaded..............................252 defendant to be present when rendered..................270 when to be rendered...........................269 motion in ar~rest of defined................... 274 970 INDEX. CRIMINAL PROCEDURE, connued PAGE. JUDGMENT, original to be carried into effect, as directed by appellate court 276 must be executed by sheriff...........279 JURISDICTION of Public Offences...240...... in county where offence committed, except, &...20 of offence committed by person out of the State, by agent within... 240 of dueling by persons who leave the State for that purpose..241 o offences committed partly in one county and partly in another...241 of offences committed on water craft.. 2..41 cases where, in any county...24....1.....1 when property brought from one county into another...241 where accessory may be punished......241 when wound inflicted in one county, and death occur in another...24 mistake of an indictment not material...252 indictment found without ground for arrest of judgment...274 JuaoR, conscientious opinions of, a disqualification...263 interest or kindred a disqualification....263 grand juror disqualified to be...263....... witness disqualified.................. 26 opinions previously formed a disqualificatio...263 JURY, may find verdict of less degree than that charged...253 when may be discharged without prejudic.. 267 of what to be admonished by the court...267 how to be charged by the court...268...... proceedings of, in finding verdict...6.... must be discharged, if all do not appear to render verdict... 268 when to specify degree of offence.................268 when to assess value of property taken, &c..................268 of proceedings of; when law provides alternative punishmnt.. 268. wejury fail to agree on the punishment..................269 when punishment too low.........................269 when too high...... I.....................269 what misconduct of; ground for new trial............... I....274 when to have view of place where fact occurred............. 279 shall determine who shall pay costs, when...............;. 281 may be summoned to try security of convict....I.............272 to try pregnancy of female convict...................272 See Crand ftryl. Jus~ic of te Peac, whe to deliver propei'ty to owner.............277 KEEPER Of State Prison to execute order of appellate court.'. 280 KIDNAPPING, of the jurisdiction of that offence................ 241 LARCENY, of the jurisdiction of that offence.......I........... 241 LIEof security against repetition of................... 269 LIMITATION of criminal -actions, provisions relative to.............. 241 Loss of indictment no cause of delay of trial....I............. 252 proceedings in case of..........................252 MAGISTRATE who have the laws and public peace to be kept........... 23 8 duties of; on complaint of threatened offence................238 on complaint that offence has. been committed................242 duisof; in relation; to the restoration prsrvation, &. fsoe rpry. 7 INDEX. 971 CRO~IMINAL PR~OCEDURE, continued.~ ~PAGE MANSLAUGHTER may be joined inindictment with murder............. 253 MANSTEALING osecution fo without limitation................. 241 MAINTENANCE family of convict, his estate may be leased or mortgaged for... 284 MARRIED w a, whena material witness, any other person may recognize for appearance of.24.......................................... 245 MATERIAL fact, place in which itoccurred jury may have view of, if court see proper.279............................................... 279 MAYOR and chief officers of cities, shall have power to keep the peace........... 238 MEDICAL servies for prisoner county tribunal may allow moderate compensation for..................................... 282 MESSENGER shall receive fugitive from justice, and convey him to sheriff -of county awherein offence committed, whe.................................... 279 MINISTER of the gospel shall be permitted to attend execution, at request of defendant............................................................ 272 MINOR, wen a material witness, another person may recognize for appearance of. 245 MISCONDUCT of Jury, a cause fornew trial............................... 274 MISTAKE, if made in charging proper offence, defendant shall not be discharged.. 267 MISPRISION of clerk not a bar to action on recognizance..................246, 256 relative to change of venue, penalty for................................. 261 MONEY may be deposited in lieu of bail.................................. 255 may be returned, when...................................... 280 prisoner may be searched for, when............................... 277 MOTION in arrest of judment, forwhat causes may be made................. 274 MURDER, prosecutions for, without limitation.............................. 241 how counts in, may be joined......................253 offence of; not bailable..........................254 NAME wron,-ly stated in indictment, not a material, defect...........266 NEw trial may be awarded on application of defendant, as in civil cases. 264 what it consists of.*.................273 places parties as if no trial had been had.....,............. 274 for what causes may be had,.....................274',application for, must be made before judgment..............274 appellate court may order.........................276 NOLLE Prossequi to be entered only onl order of court, and on motion.266.... NOTE, bill, &c., expert may be called to prove genuineness of...........265 three witnesses requisite to prove................... 265 NOTICE of application for change of venue, must be given prosecuting attorney... 259 what deemed sufficient..........................261 seifshall give, of execution of convict............272......of appeal, provisions respecting....................... 275 requisites of; to be given by trustee of estate, of convict for life......... 285 how to be given........................!.... 2815 NUMBERS may be represented by figures in indictment.............. 252 OATH, complainant to be examined on................I.... 244 form of; to be administered to foreman of grand jury.............247 to be administered to grand jurors................... 247 foreman may administer to witnesses................... 247 may be adminis tered by officers taking bail....... 255 to be administered to trustee of estate of convict for life.....:..........284 ~~~~972 ~INDEX. CRIMINAL PROCEDURE, continued. PA OFFICER, when may convey prisoner from one county to another.243 278 duties of while in charge of jury.........................268 to hold stolen property, subject to whose order...............277 cital, condition or undertaking of recognizance, not to defeat the same........................................... 256 OPINIoN of juror relative to punishments, conscientious and preconceived how to be regarded........ 263 ODE for change of venue, when to be made and proceedings under.. 258 ORDER BOOK, recognizances to be entered in....................55 opinions of supreme court to be recorded in..................276 OVERT acts of treason must be alleged in indictment therefor... 2..64 of conspiracy must be alleged in indictment therefor.........264 ust be proven in these cases.............................264... 2 ay be proven though not alleged in indictment.......................... 264 OWNEs, when tolen property to be delivered to.. 27...7 278 PARDON on what conditions governor may grant..............280 PARENT, chane of venue may be had on application of..........259 PARTNERS, indictment sufficient if only part of several named in.... 253 PEACE, what officers authorized to keep....................... 238 PERSON," what the term designates in this act..28........0 PETTIT juror must not have been grand juror.................263 POISON, administered in one county, causing death in another, jurisdiction in either.....................241.............. 2 PLEADING, style, form and rules of...........................51 of judgyment, form of..........................252 of private statute............................252 rules of; in action against b-ail......................256 of dilatory plea's............................257 PREGNANCY Of femafle Convict, inquest relative to................272 PaEJUDIOE of judge, ground for change of venue............... 258 of inhabitants of county, cause for change of venue..............259 of inhabitants of district, cause for change of venue........I..... 259 PRESUMPTIONS of law, nor matters of judicial notice, need be stated in-, indictment'. 252 PRINCIPAL,2 how may be surrendered by bail.................255 PRISONER, when, may be dischar-ed..................... 245 when may be bailed by j udge or committing magistrate.......... 246 when to be returned to proper county, on reversal of judgment.. 276 when to be discharged, after second and third terms, after indictment without trial.............................265 may be carried from one county to another, when............ -- 278 PROBATE Court may appoint trustee of estate of convict for life.......... 2.83 may make orders concerning, disposition of property of convict.........284 PROPERTY, name of only one of several joint owners of, need be stated in indictment...............................251, 253 concerning search for..........................27 6 when to be retained by officer......I................ 277 when to be delivered to owner......................277 when may be sold............................278 PROCESS, who m~ty issue for arrest.....o.........I..........242 INDEX. 913'CRIMINAL PROCE DURE, continued. PAGE PAdtR PROCESS whentobeissueaaistbail.................................. 246 may be issued for arrest of escaped offender at any time................. 256 of District Court, must be executed by sheriff............................ 279 PRosEcuTI on................................... 251 PROSECUTOR, when to be sentenced to pay costs............ I. 270 o pay costs if defendant discharged on examination................ 281 jury may find judgment aainst, for costs on trial................ 281 PUNISHMETS to be inflicted in county where offence committed.. 240 RAPE, what prof or..........sfce, i l......... 264 RECOGNIZANCE to keep the peace, when to be given................. 239, 243, 244 magistrate to transmit the same to clerk of District Court............ 239 to be forfeited on failure f erson charged to appear.................... 240 when not deemed to be broken......... 240 when to be prosecuted................................................... 240............................. 240 record of conviction may be assigned as a breach of....................... 240 when to be given by witness..................................... 245 when other pers................................... 245 to be crtifed to county attorney or clerk of district court, when...... 246, 255 proceedings in default of................................... 246 may be taken in open court..................................... 255 what officers may take...................................... 255 actionon not to be defeated for former defect, &c......................... 256.forfeited collectable upon execution.................................... 26( on change of................................... 260' of witne sses on continuance.............i......262 on mistake found in indictment...........267 may be required in addition to sentence............269 form, entry and record of..I...........6.......... 278 RECORD of default of recognizance to be entered........... I...244 of indictment in book for that purpose...................252 of recognizance, may be made after execution awarded............256 what to be certified in~transcript to appellate court..............275 to be made of all opinions of Supreme Court.... 276 RELATIVES of Person sentenced to death may attend, execution..........272 RESPITE may be granted by governor to convict sentenced to death.)......272 by sheriff, for what causes....................272 REWARD, governor may offer, in certain cases...........280 SALE of stolen property, when to be ordered..................278 SEAL, warrants -need not be issued under...................278 SEARCHi, when warrant may issue for.......I..............276 when -may be. made of person........I.............. 277 SENTENCE to pay costs, when to be given prosecutor'.............270. duty of clerk and sheriff; after............ 271 of death, execution of......... 272. SET-OFFS, when allowable against estate of convicts................286 SHERIFF, warrant to issue to................ 254 may take recognizance, when.................255~ shall accept surrender of principal, when.............. 255. duties of, -in regard to change of venue......260 62 974 INDEX CRIMINAL PROCEDURE, continued PAG. SHERIFF, his duties after sentence..271....... shall make inquest of insanity of convict, when..248 of pregnancy of female convict, when...272 corruption of, in impanneling jury, ground of challenge..279 must execute all process of district court.279 when to summon second grand jury..24... STATE, for what causes may appeal to Supreme Court..275 proceedings on appeal by.................. 75 may challenge jurors.................262 STATUTE, how to be pleaded...252......... words of, need not be strictly construed... 251 STAY of Execution not to be had on appeal, when..275 STOLEN Property, of proceedings in search of.276 277 how to be disposed of..................7 278 STYLE of Pleadings in criminal prosecutions..251 SunBPoENAs and compulsory process, defendant entitled to..257 disobedience of, punishable as in civil cases.257 not to be issued, when..282.............. SuMMONS to be issued for witnesses, when.253 when to be served..25................. SUPREME Court, judges of, peace officers... 238 appeal may be taken to by defendant, how.274 275 by the State, in what cases.. 275 powers of, onl appeal.................. 276 must not regard technical errors.....276 opinions of; must be given in writing and recorded.. 276 SURETIES, when to be prosecuted..I.........I............216 how to be discharged...........................246 action against not It-o bar.........................246 -how may surrender principal.......................255.When may arrest principal........................ 255 SURPILUSAGE not ground for' quashing indictment................252 SUSPENSION of execudtion of death, when allowed.........._......272, 273 TESTIMONY on examination to be taken in writing..............245 TIME of committing offence need not be precisely stated in indictment. 251, 2 5'2 within which warrant must issue after indictment.............253 when indictments shall be tried......................256 of imprisonment for fine and costs.........270 within which penalty of death must be executed after sentence........ 271 within which.appeal must be taken..,...........275 when appeal shall stand for trial......................275 TITLE of action must be stated in indictment..................251. only, of statute, need be stated............I...........252 TRANSCRIPT to be made by clerk on change of venue..I...........261 on appeal, within what time to be filed...................175 what to be certified in.........................175 TREASON, what evidence shall. be admitted in trials for.............264 TRIAL to be had without delay, though indictment be lost or destroyed.......253 manner. of and proceedings. on...................262 INDEX. 975 ~CRIMINAL PROCEDURE, continued.~~ r ~PAGE TRIAL, in what order to proceed............................. 266 of appeal, when to be had...................................... 275 TRUSTEE of estate of convict for life, when and how to be appointed....... 283, 284 to give bond and take oath..................................... 284 to be under control of probate court.................................... 284 powers and duties of.................................... 384 VENUE. See Gounty, (Pe. VENUE Of plea laid Without the county, how tried.......................... 257 for what causes change of may be ordered............................... 258 when judges indicted........................................ 258 on account of interest, &c............. of judge..258 because of prejudice of the county..................................... 259 because of prejudice of the district................................... 259 petition for, by whom may be made............... 259 must be accompanied by affidavit..................................... 259 when court may order without application.............................. 259 what order must state....................................... 259 when application for must be made during term, when indictment found...... 259 where afterwards..................................... 260 order for, how made................................................ 260 of reconizances on change of..................................... 260 of the removal of prisoner...................................... 260 of transcript on change of..................................... 261 of notice to defendants and witnesses................................ 261 costs of, how adjusted and taxed......................261 when change as to only, part of defendants.......I.......... 262 VERDICT, manner of rendering.......................268 shall specify degree of offence found.....................268 shall declare value of property stolen, &c..................268 shall assess and declare punishment................... 268may be set aside, for what causes....................264 in what cases court may modify.................... 26-9 shall determine who shall pay costs........268 WARRANT, when to issue on threatened breach of the peace...........239 what shall contain...........................239 onl commitment to specify cause thereof............. 239 what officers authorized to issue....................242 when to issue for arrest of person charged with having committed offences.. 242 when offender has fled...242 to contain certificate of recognizance taken....................243 when clerk to issue after indictment...................253 to whom to be issued..........................254 amount of bail to be indorsed on......................254 must be shown defendant on arrest.......................254 to be issued to sheriff after sentence.....................271 respite of sentence to be noted on by sheriff..............271 to be transferred on change of venue....................260 may be issued by court when defendant not in attendance...I....... 270 may be issued in habeas corpus...... *........... 273 ~976 IN~INDEX. ECRIMINAL PROrDURE, continued. A WARRANT of execution may issue, when execution of death has been delayed... 273 ofsearch, when may be issued.......................... I.. 27* requisites of search warrant.................2.......... 277 by whom to be executed.............277.............. shall be valid without official seal..........................27 of arrest of fugitive from justice to be issued by the governor....279 ow may be broken open in making arrest................ WITNEssEs to be examined on complaint of threatened breach of the peace.. 238' to be examined on complaint that criminal offence has been cornmmitted... 242 241 examining magistrate shall cause to be summoned to attend the court243 in what order to be examined by magistrate..................44 may be kept separate..................................... testimony of, shall be reduced to writing, when.... 24.......... shall b bound in recognizance, when..245 with sureties, when....................................24. when married woman or minor may be recognized by other perso, or may recognize themselves. 24........ 243 theseles................................... may be committed on refusal to recognize.................245 compulsory process may be issued against, when...248........ proceedings against, on refusal to testify before grand jury.... 24 on commitment for contempt on account of refusal............248 names o to be endorsed on indictment.............................. 50 smons to be issued for, when warrant issues after indictment..253 of notice to, on change of venue.............................261 to be recognized on continuance......................261 not to he sw orn. as jurors..........................263 not disqualified because he is. the person injured...............264 three to be required to prove genuineness of writing.............263 not disqualified by reason of being a, party concerned in the offence.......265 WITNESSES, when defendant may become for the State.............267' may he produced on- inquest of insanity...................272WORDS used in indictment, how must he construed..........I.....251 used in statutes -need not be strictly pursued................251 WOUND, if inflicted. in one county and death occur in another~jurisdiction in either, 241'WRITING, when testimony to, be reduced to.......243 opinions of supreme court to be given in. 276 WaITS of attachment, if returnable after clo e. of term, court must fix amount of bail.............................I...251 COLLECTOR of taxes, county treasurer shall be.................431 COLLEGE ENDOWMENT FUND. See Corporations. COLLJEGES, how may be incorporatad.....................360 See Corpiorations. COLLUSION or deceit of attorney, penalty. for..................103 COMMISSIONERS, COUNTY. See Counties and C~ounty O.0 era. See, Roads. See Poor. See Taxes. See Constitution. COMMISSIONERS to take depositions in other States and Territories, governor may appoint..... 1......................... 349 powers and duties of........................... 349 must file oath with the'Secretary of State............350, INDEX. 977,C~~~~~RIMIJ~NAL PROCEDURE, continued.PAGE COMMISSIONERS MASTER shallnotsel real estate................................ 350 such sales to be made by the sheriff........................ 350 See C'ode of Civil Procedure. COMMISSIONERS for management and investment of school and unmiversity funds. See Fends. COMMISSIONS of officers shall be signed by the governor, and countersigned by the secretary of Sta...... 50 ~CONSTITUTION OF KANSAS. ORDINANCE, the United States not bound by, act of admission............... 76 the riht to tax lands of the United States relinquished.................... 48 sections sixteen and thirty-ix shall be granted for common schools.......... 48 State university, seventy-two sections granted for......................... 48 lands of nonresidents ot to be taxed higher than those of residents........ 48 public buildings, thirty-sixk sections to be giane fo r......48 s to be grianted for............... 48 charitable and benevolent institutions, seventy-two sections to be granted for. 49 salt springs and lands adjacent...................................... 49 proceeds of sale of public landsof United States, five per centumrn to be granted to State for common schools 49 five hundred thousand acres under act of 1841, granted for common schools. 49 how selected............................49 BILL OF RI S. equal natural right clared............................. 49 governments founded on the authority of the people...................... 50 legislature shall not grant special privileges.....~.. 50 )rvigs..........................5 right of petition granted............. 50 prilght to bearars guarand..... 50 right to trial by jury guaranteed..o.............a..50..... * slavery prohibited... ~~~~~~~50 rights of conscience secured........................560 religious tests prohibited.................50 property qualifications prohibited................5 0 reight to writ of habeas corpus not to be suspended, unless........... 50 nill persons shall have, except for capital offences................ 50 excessive fines and cruel punishments prohibited.,........ 50,speedy trial by -jury, and liberty to defend, granted...... 50 liberty of the press shall be in iolate...51 libel, in actions for, the truth may be given ina evidence............ 51 no person shall be transported from the State................ 51 conviction Shall not work -corruption, &c................... 51 treason defined.................. t reason, two witnesses necessary to conviction................. 51,soldiers shall not be quareewhr..51 persons and property secured from unreasonable search............ 51.search warrant not to issue, unless....51 imprisonment for debt prohibited, except for fraud............... 51 citizens and aliens, no distinctions allowed...51 justice shall be administered without delay..... 51 hereditary privileges shall not be granted...51 powers not delegated, remain with the people...51 xEJX~cuTIVE, officers of executive department, and how. chosen...............52 978 INDEX. CONSTITUTION OF KANSAS, continued. PA EXECUTIVE, term of office of..5..2........ election of, and return and canvass of vote..52 governor, supreme executive vested in.... 52 may require information of other officers. 52 shall communicate information to the legislature..52 may convene the legislature on extraordinary occasions.. 52 GOVERNOR, may adjourn legislature, when..52 pardoning power of may be restricted... 52 shall keep the great seal...................2 shall sign commissions..53.............. who excluded from holding office of.....53 vacancy in office of, how filled..53....... to fill vacancies in office of trustees of benevolent institutions..62 LIEUTENANT GovERRNOR, duties of................ 52 5 vacancy in office of, how supplied........5 LEGISLATIVE, the legislative power vested in senate and house of representatives 5 number of members...................5 compensation shall be three dollars per day and Mileage.54 shall not exceed one hundred and fifty dollars per session.54 qualification of members...............54 members shall take oath of office.......54 quorum, a majority shall constitute......55 vacancies to be filled by election........55 yeas and nays to be taken on final passage55 neither house shall adjourn for more than two days, without consent of the other, 55 bills shall originate in the house......................55 majority of all members necessary to passage...........I.....55 bills when to be signed.................55 veto of; by governor.......................... must be read on three separate days, unless................55 not to contain more than one act..........I............56 laws shall be uniform..........................56 enacting clause shall be what...............I........56 relative to county tribunals.......................56 members privileged from arrest.56................... schools, no distinction shall be made between males and femiales.......56 legislature, sessions of; shall commence on second Tuesday in January.....56 shall provide for taking the. census....................56 impeachment, house shall have sole power of................57 who subject to, mode of trial and punishment...........o....57 JUDIOIAL, judicial power, in what courts vested...............57 supreme court, how constituted.....................57 shall have original jurisdiction in habeas corpus and mandamus.......57 there shall be a reporter and clerk of...................57 district courts, there shall be five judges, of.5........I....... 7 jurisdiction of; to be established by law...................58 clerks of; to be elected.........................58 aprobate court to be established in each county...............58 jurisdiction of; to be established by law.58........ INDEX. 979 CONSTITUTION OF KANSAS, continued. rAGE. JUICIAL, judge of shall be his own clerk.................. 58 justices of the peace shall be elected in each township............. 58 numbers may be increased.................................... 58 appeals from probate court and justices of the peace shall be to the district court, 58 vacancies shall be filled by the governor............................... 58 judicial officers shall hold office till successors qualified.................... 58 compensation of judge of supreme and district courts not to be less than $1500, 58 judges not to practice..................................... 58 may be removed from office by the legislature........................... 59 umber of districtsmay be increased.................................... 59 style of process shall be "The State of Kansas"......................... 59 judicial districtscomposed of what counties..............................59 ew counties shall be................................... 59 judge pro tem. of district court, how selected............................. 59 ELECTIONS, by the people shall be by ballot............................... 59 ~bytesabv e....tlsu h bv v................. 59 general, shall be held annually on Tuesday succeeding the first Monday in November.9.........- 59...................................5 township, shall be held on the first Tuesday in April..................... 50 SUFFRAGE, wo entitled to right of suffrage................................ 60 who not entitled to right of........................................ 60 laws shall be passed to ascertain who entitled to......................... 60 EDUCATION, superintendent of public instruction shall have supervision of school fnu~nd.6~~..0.................................... 60 county superintendent shall be elected.60 legislature shall establish common schools and schools of a higher grade....61 land granted by congress -for, shall be a perpetual common school fund.....61 lands granted by congress for, under act of,1841, shall be a perpetual common school fund........I.....................61 interest of school fund shall be disbursod by state superintendent.......61 interest of school fund no district shall be entitled to, unless school has been kept three months.........................61 lands shall not be sold unless authorized by vote of the people.........61 money for military exemptions, fines, and strays shall be applied to schools.... 61 a State university shall be established by law..............62 a State university shall contain an agricultural and normal department.....62 school or university funds shall not be controlled by any religions denomination 62 COMMIuSSIONERs, board of; for management and investment of school fund......62 COUNTIES, Legislature shall, provide for, the organization of...........63 COUNTY Seats, Legislature shall provide for the location.............63 COUNTY Lines, Legislature may provide for the change of.......e....63 COUNTY Officers, shall hold their offices for two years..............63 COUNTY Officers, may be removed, how....................63 COUNTY Treasurer and Sheriff- shall not hold their office more than two consecutive terms............................. 6 3 TowNsHIP 0fficers shall hold their offices one year, except justices of the peace. 63 APPORTIONMENT, Counties shall be divided, how.................63 first Legislature shtall make...................... 64 APPRTIN ET, ew shall be made in 1866, and every five years thereafter... 64 -980 INDEX. CONSTITUTION OF KANSAS, continued. AG FINANCE and Taxation; the Legislature shall provide a uniform system of taxation 65 what property shall be exempted from...65 notes, bills, and property employed in banking shall be taxed.65 sufficient revenue shall be raised each year to defray current expenses. 6 taxes shall be applied to specific objects.,.65 public debts, how contracted and to what extent65 no other debts to be contracted except by a vote of the people65 the State may borrow money to repel invasion or suppress insurrection. 66 the State shall not be a party to works of internal improvements66 CORPORATIONS; no special acts of incorporation shall be passed.66 stockholders shall be individually responsible to a amount equal to stock owned 66 title to property of religious corporations shall vest in trustees.66 right of way shall not be appropriated without full compensation.66 general laws shall be passed for the incooration of cities and towns.p66 term "corporation" shall include all associations not partnerships66 BANKS and Currency; banking law shall be general.67 security shall be stock of the several States deposited with the Auditor. 67 security, additional, when to be required,67 notes to be redeemable in money of the United States.67 banking law must be submitted to a vote of the people.67 AMENDMENTS to the Constitution, how to be proposed and submitted to the people 67 conventions may be called to make, by two-thirds of the Legislature.68 MISCEILLANEOUS; Officers may be chosen or appointed as may be provided by law 68 officers, tenure of, when to be longer than four years68 lotteries prohibited...........................68 public printing shall be let to the lowest bidder....,............68 statements of receipts and expenditures shall be published..........68 rights of women to hold separate property shall be protected...........69 seat of government temporarily located at Topeka...............69 a homestead of one hundred and sixty acres shall be exempted........69 SCHEDULE; Suits, &C., shall, survive on change from Territorial. to State government..................I..............69, 70 fines, penalties, &c............................ 69 officers of the Territory to continue until superseded under the State.......70 laws to remain in force until superseded under the State............ 70 Governor to use his private seal..................... 70 offices, State,' to be kept at the seat of government.............. 70 records, &C., to be transferred.................I....70 election for ratification and for State officers, &c........70 State canvassers shall transmit Constitution to President........... 72 Governor shall convene Legislature.,..........72 resolutions relative to public: lands, &c.................... 73 CONSTITUTION OF THE UNITED STATES. LEGISLATIVE Powers; Purposes of...................... 14 granted to vest in Congress......................... 14 to be the supreme law of the land.................... 25 powers -not delegated nor prohibited to remain in States..............29 ratification and mode of amendment of.................... 25 articles of amendment of.................28........ INDEX. 981 CONSTITUTION OF THE UNITED STATES, continued. pAOE CONGRESS, to consist of Senateand House of Representatives................... 14 shall assemble at least once a year, and where.. 16, and wnhere......................... 16 each house shall e the judge of the election, &c, of its own members......... 16 majority of each house to constitute a quorum............................ 16 smaller number may adjourn from day to day............................ 16 may compel attendance of absentmembers................................ 16 may make rules, pnish, or expel members...............................16 shall keep journal and publish the same, except, &c........................ 16 yeas and nays may be called by one-fifth present.......................... 16 when either house during the session may adjourn, and to what place......... 16 place, &C., of election of Senator and Representatives to be prescribed by State Leaislatures...............16............................ 16 such regulations except places of choosing Senators, may be altered by Congress 16 powers specifically granted to................................... 17, 18 may make laws to carry out such powers................................ 18 what Conress cannot do..................................... 19 may fix time of choosing electors of President and Vice President............ 21 day to be the same throughout the United States.......................... 21 may providewosalsident, in case of inability of President and VIce Pesident.21t s reidt..................................... 21 may vest appointment of inferior officers, as they think proper, &c............ 22 ay declare the punishment of treason.................................. 23 attainder not to work corruption of blood, or forfeiture, except, &c........... 23 may prescribe how proof shall be made of acts, &c., of States................ 24 may assent to formation of new from old States. may make needful'regulations for property and territory of the United States.. 24: when may prepare amendments to the Constitution.25.......... shall be bound by oath to support the Constitution..............25 powers not granted reserved to States...................29 comipensation of......16 privileged from arrest, except, &c...................16 n ot to be questioned elsewhere for words spoken in' debate...........16 not to be appointed to certain civil offices.................16 persons holding office under the United States not to be members.......16 HOUSE OF REPRESENTATIVES; members of, how and by whom chosen......14 qualifications, apportionment, and number..............14: vacancies, how filled...........................15 shall choose their officers........................15 shall have sole power of impeachment!.15................ shall judge of the elections, &c., of, own members..............16 quorum-1, adjournment, rules, journals, &C..................16 compensation, privileges, disqualifications..................16 cannot be appointed a presidential elector..................20 to originate all revenue' bills.17 two-thirds of, may pass bill ~over President's veto.'............ 17 shall be bound by' oath to support the Constitution.............25 SEINATE; members how chosen and classified................15 quaifiatinsquorum, adjournment, rules, journals, compens-ations, privileg~es, disqualifilcations.15,s....................... o 66 ~~~~982 ~INDEX. CONSTITUTION OF THE UNITED STATES, cotinued. PAGE SENATE, cannot be electors of President and Vice President.......20 vacancies, how filled......................................15 Vice President to preside over but not to vote, unless, &c........15 President pro tempore, when to be chosen....................15 has sole poer to try impeachments.........................15 proceedings in cases of impeachment........................15 may propose, &c., amendments to money bills.................15 wo-thirds of may pass a bill over President's veto.............17 may concur in making treaties.............................22 ay advise and consent to appointments by President..22....... PRESIDENT; his term of office................................20 electors of number, and how appointed........................ 0 who cannot be.......................................... how and where to meet and choice of Presiden.t..20 30........... qualifications of President.................................21 provisions in case of vacancy in office of....................... 1 compensation and oath of...................................... powers and duties of.....................0.............. may veto bills........................................... proceedings in case of impeachment of....................15 22 President cannot pardon in case of impeachment......................... 1 VIcE-PESI:ENT; made of election, qualifications, &c..20 30.......... to be President of the Senate..............................15 but to have no vote, except, &c..i.................15 when to be President........................... 21 JUDICIAL Powver; bow vested........................22 to what cases it extends......................... 23, 29 to what cases it does not extend......................23 tenure of office of judges, and their pay....................22 original and appellate jurisdiction...................... 230 trial of crimes, where to be held, and by jury................ 23 judicial proceeding, &C., in each State, thaeflcrdtiohrSaes 24 STATES; individual, each to bave republican form of government......... 24 to be protected against foreign invasion and domestic violence....24.... cannot be suied..............30.............. p )wers not delegated nor prohibited remain to................29 prohibited from the exercise of certain powers................19 privileges and immunities of citizens of.................. 24 fuill faith antid credit to be given to acts, &C., of.......24....... admission of new States, provisions respecting............... 24 members of leg-islatures of; to be bound by oatb, &c., to support the federal conistitution..............I................25 j udges- in to be bound by federal constitution and laws, &C..........251 MISCELLANEOUS Provisions; Adjournment of Congress, or either House.. 16 amendm-ents, hoaob md......I...............25 articles of...............................28 *arms, right to keep and bear, not to be infringed...............28 arnmy, Congress has power to raise and support.18........... INDEX. 983 CONSTITUTION OF THE U TED STATES, continued. PAGE. MISCELLANEOUS Provisions; arrest, members of Congress privileged from...... 16 attainder no bill of to be passed.................................... 19 of treason, not to work corruption of blood, except, &c.................. 23 bail, excessive,..................................... 29 bankruptcy, Congress may establish system of........................... 18 census, United States, when to be taken................................ 14 citizens of States, privileges and immunities of......................... 29 coin and coining, provisions respecting.................................18, 19 com erce, Congress may regulate.......................18, 19 copyright, Congress may grant by law.................................. s counterfeiting,.................................... 18 crimes where and how to be tried.................................. 23, 29 persons not to be held to answer for unless.............................. 29 those charged with, to have trial by jury, &c............................. 29 debts, contracted beforethe adoption of the constitution, to be valid against the United States.25........................................ 25 duties, authority of Congress to establish.............................17, 19 excessive bail, fines and punishments prohibited.......................... 29 ex post facto laws not to be passed..............19 fines, excessive, prohibited.29,..,............................., 29 freedom of speech and press and of petition secured.......................,28 fugitives from justice, provisions respecting.............................. 24 fugitives from service an.................................. 24 grand jury, presentments and indictments by............................ 28 habeas corpus, writ of; not to be suspended unless, &c............19 immigration of certain persons, provisions respecting.............19 impeachment under federal constitution, house of representatives has sole power of; 15 senate has sole power to try......................15 proceedings in trials of........................15, 23 when President is tried........................ 15 judgment and sentence in cases of.................... 15 those convicted, still liable to indictment................. 15 president cannot pardon in cases of....................21 importation of certain persons, provisions respecting............ 19 jury, trial by, secured to those charged with crimes............ 29 in suits of common law, when, &c.....................29 measures and weights, standards may be fixed.......18.......i Militia., provisions respecting the arming and disciplining of.......... 18, 28 money may be coined and value regulated................ 18 counterfeiting of; may be punished.................... 18 naturalization, uniform rule of; may be established............ 18 nobility, titles of; not to be granted....................19 navy, power of congress over....................... 18 officers not to accept presents, titles, &c...................19 petition, right of;" secured.........................28 post offices and roads may be established,................. 18 presents, &C., officers not to receive....................19 press, freedom of; secured........................ 28 private property not to be taken for public uses, without, &c..........29 984 INDEX. CONSTITUTION OF THE UNITED STATES, continued PAGE MISCELLANEOUS Provisions, punishments, excessive, prohibited..29 quorum of senate and house of representatives..16 of senate for choice of Vice President...30 of the house of representatives for the election of President.30 ratification of constitution and of amendments.27 28 31 religious establishment prohibited........................ 8 revenue, power of congress to raise......1 searches and seizures, freedom from unreasonable. 28 speech, freedom and right of, secured....28 soldiers not to be quartered in any house, without consent of the owner. 28 taxes, direct, how to be apportioned.....14 17 19 tender, only gold and silver coin to be made a legal.. 19 treason, how defined and punished..23.... person not to be convicted of, unless, &c..23 attainder of, not to work forfeiture, &c...23 treasury, money how to be drawn fronm.. 19 treaties, how may be made..22.......... to be the supreme law of the land..25.... individual states not to make...........19 trials by jury, secured in trials for crimes.29 in suits at common law.........................29 veto of President, two-thirds of both houses may pass bill over..17 warrants not to issue except, &c..28...... weights and measures, standard of, may be established.. witness, person charged with crime may sunmon................ 29 may be confronted with those aga inst him....I..............29 no one compelled to be aghinst himself................29 yeas and nays, when to be entered on journal.................16 AMENDMENTS, how made and ratified.................. 25 articles of, when made and ratified..................281, 31 religious establishment prohibited................28 freedom of speech, and, of the press, and right of petition, secured.........28 right of people to keep and bear arms, not to be infringed...........28 soldiers not to be quartered, in antry house, unless, &c.............28 security, from unreasonable searches and seizures..............28 warrants not to issue but on probable cause, &c. I.......28 persons riot to be held to answer for crimes, unless, &c............29 to have trial by jury; to be confronted with witnesses; to compel the attendance of witnesses, and.to.hae.counse...........29 not twice to be put in'jeopa~rdy.................. 29 not be comp elled in a. criminal case, to be a. witness against himself.......29 nor be deprived of property, but-by process of law..........I.....29 private property not to be taken for public use without just com~pensation.. 29 trial by jury, secured in suits at common law, when amount in controversy is.over twenty dollars.....i....................29 excessive bail, fines and punishment prohibited..............29 rule of construction as to powers granted..................29 powers not delegated nor prohibited, to remain to the States........ 29'judicial power does not extend to suits against a State........... 30 manner of choosing President and Vice President............. 30 INDEX. 985 PAGE COMMON LAW, of England and certain British statutes are in force in this State.. 678 pnnishment limited.678...................................... 678 British statutes not in force.................................... 678 See Code of Civil Procedure. COMMON SCHOOLS. See Schools. COMMON SCHOOLS, interest of what fund to be applied to support of. See Fund, School and University. See Schools. COMMUTATION of punishment when may be granted....................272, 273 COMPENSATION of State executive officers................................ 53 See Salarics. of judicial officers..................................... 58 See Salaries. of county officers. See ounties and Counlty Qgicers.. See Fees. CONCURRENT RESOLUTION, Legislature to meet in joint convention upon.......... 353 CONcSIDERATION, implied by writte.............a................. 351 wat or failure of, a defence...................................... 351 CONSIGNEES of property, duties of. See Property Unclaimed. lien of, unaffected by attachment.........................!............ 159 CONSTABLES. See Townships and Township OQcers. See Justices of the Peace. CONTAGIOUS DISEASES, protection of animals from, Chapter 189. See Stock, protection of. CONTEMPT. See Code of Civil Procedure. See Code of Criminal Procedure. CONTESE ELECTIONS. See Elections, manner of contesting. CONTRACTS AND PROMISES, act regulating, Chapter 38. joint contract by common law abolished..................351 joint contract survive, against representatives.................351 writ may he brought against one or more.................351'private seals aholished.........................351 cohtracts in writing import consideration..................351 failure of consideration, a defence....I............... 351 a surety may require his principal to he sued, when........... 351 if creditor refuses to sue, surety discharged.................351 suit may he brought against all the Obligors................352 these provisions extend to executors of sureties, &c.............352 of minors, when binding.........................720 See Minors. for the sale of improvements on public lands................ 352 contracts for. improvements on public lands may be enforced.........352 deeds of quit claim and other conveyances of improvements upon public lands, valid................................352 if they specify time of termination of tenancy, notice, to quit unnecessary.....662 of minors, when may be disaffirmed...................720 limitation of actions on. See Code of Civil Procedure. See Liens. CONVENTIONS, JOINT, of the legislature, Chapter 40. both houses shall meet in joint convention on concurrent resolution......353 shall perform no acts but those Specified.................I..353 how to be organized............... i.353........ rules of the two houses to apply...........3...........I53 votes, how taken...................I........353 986 INDEX. PAGE CONVENTIONS, JOINT, majority necessary to elect.53 but one person shall be elected at a time.. 53 CONVEYANCE, when a consideration is paid by anothervoid, as against creditors. See qirrusts and Potwers. when judgment for, to operate as such...187 See Contracts. See Crimes and Punis7ments. CONVEYANCES, ACT REGULATING, Chapter 41. acknowledgments, before whom, if made in this Ste... 355 before whom, if made out of this State..355 if taken before justice of the peace, out of this State, how authenticated 355 what the certificate of acknowledgment must set forth355 proof of execution on failure of acknowledgment in certain cases.356 person making acknowledgment must be known to the officer.355 penalty for making false statement in certificate356 subpoenas may be issued in proceedings to take proof.356 instrument revoking power must be acknowledged 356 acknowledgment, in copy, purporting to be under seal valid.356 acknowledgments heretofore taken before registers of deeds, valid357 CERTIFICATE of official character of justice of the peace.355 acknowledgment must contain what....3 proof of execution, what must contain...356 proof of acknowledgment may be under seal or otherwise.356 if it state untruth, penalty............356 purporting to be under seal............356 not conclusive evidence........................357 CONVEYANCE, technical words not necessary in................ 354, shall pass all the interest of grantor................. 354 creation of trusts executed as.......I...........i... 354 to two or more, tenancy in common...................354 not -valid unless recorded........................355 duly executed mnay be read in evidence..................356 DEED, after acquired interest of grantor, enures, to grantee.............354 not valid unless recorded.35 technical words not necessary to......................354 ESTATES, may be created to commence in future...............354 trust, how created.3......I.................... 55 EVIDENCE, when. instrument allowed, as..................356 when copy allowed, as...................356 "HEIRs," or other technical words not necessary to convey fee simple.......354 MARRIED women umay convey as other persons...............364, 397 MORTGAGOR may retain possession of real estate......355 MORTGAGEE shall hold legal title -and right of possession of personalty......355 NOTICE, thirty days necessary to terminate tenancy at will...........355 need not be greater than intervals of rent.................355 to farm tenants, 1st of April.......i................355 POSSESSION, adverse, does not prevent sale...................354 presumed to be at will.........................354 mortgagor has the right to, of realty.....................355 mortgagee of personalty...............................355 INDEX. 987 CONVEYANCES, continueed. A G F OAOE. POWERS, declarations of how to be executed........................... 354 POWER to convey, instrument revoking must be recorded.................... 356 PROOF of execution, on failure of acknowledgment.......................... 356..may be taken before whom.................................. n356 certificate of what must contain................................ 356 certificate of how authenticated............................ 356............................... 35 officer may subpcena witnesses..........3.56 PROOF of identity of grantor, how................................... 355 CORD, instrument not valid unless recorded.............................. 355 revocation of pow e d.............. e................... 356 record of instrument or copy of evidence. 356 record no objection to, that no seal is appended........................... 356 above applies to instruments heretofore recorded................. 357 not conclusive evidence..................................... 357 REGIST of deeds, acknowledgments taken before valid.............. 357 SEAL Of Court necessary to authenticate acknowledgment certified by justice of the peace out of the State...355..................................... 35 certificate may be under, or otherwise.......... 356 TENANCY at will, possessio imports..................................... 354 o necessar to terminate.... 355 TENANTS occupying farms, to have notice to quit on first day of April.......... 355 TRUSTs, declarations of must be executed as deeds......... 354 not to apply to resultin trusts...................................... 354 WITNESS, identity of grantor when to be proven by...............355 when execution of deed to be proven by a failure of acknowledgment......... 356 names of; must appear in certificate..355 may be subpoenaed by officer.......................356 CONVEYANCES, when a consideration is paid by another, void as against creditors See Trusts and Pow es. when judgment for, to operate as such................ 8 See Contracts. See Crimes and Punishments, CONVICTION shall not work corruption of blood..........I.... 51 CONVICTS, an act respecting. Ch. 43. Jailor required to, keep convicts at work. 358 if no public works in county, he may be employed in another county.......358 who deemed convicts under this act...................358 how convicts shall be secured. ~.................... 358 price of labor of.....359 proceeds of labor- of; to go to county treasury................ 3-5 9 convicts to be confined at night.....I.................359 jail or prison may be used free of charge..... I.............359 county tribunal to provide for convicts......I............359 jailor shall call in physician when necessary, and shall request allowance of minister or priest at request of convict..................359 convicts to be sent to the penitentiary, when.................360 See C)imes and Punishments. where may be committed when no jail in county... 763...... COPARCENERS; partition of real estate of. Ch. 1.62. See Partitio of Beat Estate. 988 INDEX. PAGE COPIES of records and papers of county officers shall be vide.. See Counties and County Officers of statutes, marriage records, official bonds, &c, when evidence107 See Authentication of Statutes, cdc. of pleadings, instruments, &c. See Code of Civil Procedure. COPYRITG-GHT of reports of the Supreme Court shall be proerty of the State. 453 CORONER, when to serve process............227 425 general duties of. See Counties ad County Qcers. CORPORATIONS; no special acts shall be passed.66 stockholders of, shall be individually liable66 general laws shall be passed for the incorporation of towns and cities. 6 the term shall include all associations not partnership, constitution66 ACADEMIES; bow may become incorporated.62 corporate name to be recorded....................... 2 may hold real estate....................... 62 general powers of.....................362 COLLEGES and Universities; may have five trustees or more361 five trustees must be resident freeholders of the county.361 when to have power to appoint officers.. 1 president and professors shall constitute faculty362 they shall have power to enforce rules...362 COLLEGE Endowment Fund; manner of incorporating.364 three members must reside in this State.. 364 statement to be signed, attested and recorded.36 fund may be applied to other objects, how. 365 ge01neral corporate powers of.......................365, GENERAL provisions relative to colleges, universities, academie~s and endowment funds............................ 360 how to becom-e incorporated....................... 360 manner of ascertaining value of property of................ 360 probate judge to appoint appraisers................. ~..... 360 duties of -appraisors.......................... 360 certificate of appraisement, to be, recorded.................. 360 afailure to elect directors, not to dissolve company..............362 may hold property in trust.....I.................. 362 any college, university, or academy now existing, may come under provisions of.this act...........................!... 0G33 may connect lands, machinery, &c......................363 may increase stock or change scholarships, how..............363 directors to publish notice of proposed chances..............o363 vote necessary to authorize increase...................363 stockholders. individnally liable for debts...............I...363 trustees personally liable.......................363 name and location may be changed, how..................363 FERaav and Bridge Companies; bridge and ferry companies...........369 certificate of capital stock to..............369 designate'place...........................369 when certificate deposited with Secretary of Territory, and recorded by him,1 shall be authorized to act.......................369 INDEX. 989 ~~~~~~~COR ~PORI~ATIONS, continued.~ ~PAGE. FERRY and Bridge Companies; powes and privileges........................ 369 both banks of stream must be owned by the company or consent obtained, unless a public highway...................................... 369 corporators shall open books.............................. 369 meetin of stockholders when ten per cent. is subscribed.................. 369 to elet five directors who must be stockholders.......................... 369 one of whom shall be president.................................. 369 also, treasurer and secretary...................................... 369......each share to give one vote............. 369 treasurer to give bond..................................... 370 duties of president..................................... 370 duties of secretary..................................... 370 may alter by-laws....................................... 370 rates of toll to be prescribed by county tribunal and kept posted up conspicuously........370.......................................... 370 penalty for receiving greater rate..................................... 370 compensation of officers to be fixed by the by-laws....................... 370 GAs and water companies.............................................. 367 certificate, specifications &c............................... 367 certificate to be forwarded to the Secretary of the Territory, and recorded by him. 367 when authorized to act...................................... 367 powers and privileges............................... 367 directors may be chosen when ten per cent. of capital stock paid in.......... 367 five directors to be chosen...................................... 367 each share entitled to one vote.367 one of directors to be president......................368 officers to be required to give security..................368 company authorized to make rules and by-laws...............368 annual meeting, of stockholders for electing officers.............368 company shall have power to lay gas and water pipe with consent of city authorities.368..... municipal autoiisauthorized to contract with company..........368 MAGNETIC Telegraph Companies; manner of formation.............365 name................................365 termini of lines.........................4....365 capital stock, value of share......................365 certificate shall be acknowledged before, a justice of the peace.........365 secretary of the Territory'to keep record.................365 evidence of corporate existence......................365 who may open books..........................366 thirty days notice of meeting...............I.......366 election of directors.'..........................366 annual meeting of stockholders, election of officers............366 stockholders may adopt by-laws.....................366 special meetings of stockholders.....................366 corporations authorized to construct telegraph lines.............367 TowN Companies; shall make certificate specifying name, place, &e.......372 shall file certificate in office of Secretary, of State..............372 corporate powers and privileges.....372 63 990 INDEX. CORPORATIONS, continued. MANUFACTURING Companies; how formed... 371 shall make certificate specifying capital, stock, location, &c..371 certificate to be acknowledged, and filed with the Secretary of the Territory............................371 when authorized to act.................... 371 powers and privileges of company......371 annual meeting of stockholders to choose directors371 special meetings of stockholders........371 thirty days' notice to be given, how.....371 directors shall elect one of their number president.371 may appoint officers and fix compensation371 officers to give bond when required by the by-laws371 officers may make by-laws..............371 directors may dispose of the residue of stock and have management of com pany, under control of stockholders...371 record of stock and transfer to be kept...371 directors shall declare dividends.........371 who shall be commissioners to open books of company372 RELIGIOUS and other Societies. religious societies, military or fire companies may elect directors and clerk, how 373 clerk to make record of proceedings of meeting, and have them recorded in the office of the recorder of the county....373 duty of county recorder to record the same.373 fees for recording....................373 powers and privileges of society.....................373 evidence of existence of the company..................373 officers shall have perpetual succession, and may sue and be sued........373 association may elect its officers and make by-laws......I.......374 -vacancies, how filledl.........................374: quorum...............................374 time extended twelve months for corporations created in 1858, to complete organization.............................374 CHUaCHES, Incorporation of. meeting, how called..........................383 notice of, how given............................383 trustees, general powers of......................383 how elected..............................383 property of; title, how to vest on death of trustees..............383 corporation, -how, to be perpetuated.....................383 clerk, duties of.............................383 CITIES, INCORPORATION OF, AND' TowNs. CRAP. 46. ACCOUNTS, mayor may require officers to exhibit................391 board of trustees shall certify to council accounts of school expenses.......394: ACKNOWLEDGMENTs of deeds, mayor may take............... 392 ADDITIONS, council may admit to city limits.................396 APPEAL, may be taken from. mayor to district court, when...........390 APPORTIONMENT, council may make of members...............387 ARREST, marshal may make without process, when...............369 ASSESSMENT for city taxes shall be taken from county assessment roll.......385) INDEX. 991 ~~~~CITIES, &~~C~., continued.~ ~ ~PAGE BILLIARD Tables, &c. Council may restrain, prohibit and suppress billiard ~tables, &c...................................... 286 BOARD Of Examiners for Schools, how appointed........................... 394 shall examine teachers and grant certificates............................ 394 BOARD of Trustees of Schools, how elected and their duties and powers........ 393 officers of te board..................................... 394 city clerk shall be clerk of the board................................... 394 mayesscolpoet...................................... 395 shall hold monthly..................................... 395 BNDS, council shall levy tax to pay interest on........................... 397 may i~lessue.................................. 397 BORROWING Money, powers and restrictions relating to........................ 387 BOUNDARIES, council may increase or diminish............................. 396 CENSUS, council may provide g................................... 386 CERTIFICATE board of trustees shall give, of amount due teac hers.............. 394 board of examiners shall give teachers................................. 394 CITY Clerk shall attest city orders..................................... 391 shall be clerk of school boar..................................... 394 shall make monthly statement of school affairs to council................. 395 CHALLENGES shall be allowed injury trials............................... 390 COLLECTOR Of City Taxes, city treasurer shall be.......................... 396 COLOREDPersons, property ofsall be taxed to support colored schools........ 395 COMPENSATION, members and officers of school board shall receive none........ 394 CONTEMPT mayor may punish for..................................... 390 CONTINUANCE, witnesses shall appear without summons............389 COUNCIL, general powers of...............I.........385 shall appropriate taxes for colored schools................... 3 95 shall define the duties of officers.....................396 may alter city boundaries....................... 396 shall consist of how many members....................384 shall levy taxes for support of schools....................393 COURT, District, when cases shall be certified to........389 COURT, Mayor's, provisions in relation to.... 390 DAMAGES, how ascertained..........................387 DEBTS, powers and restrictions in relation to incurring..............387 may be funded, how.............................397 DISCHARGE, in misdemeanors, how obtained............... 389 ELECTIONS, general city, provisions in relation to...........~......385 council to pass ordinances in relation to.........386 EXAMINERS. S4ee Boatrd oJ Examiners. -ExECUTIONS, city property exempt from.............397 EXEMPTION of school property from taxation and execution........... 395 of city property' from execution...................... 397 FEES, of mayor same as of justices of the peace.................390 of jurymen, fifty cents.............389 of witnesses, fifty cents...............389 FINES and Penalties, council may impose and enforce the payment of..387, 390 mayor shall pay to treasurer.......................... 388 mnayor may remit.....f........... i G.. 4 39 3 :992 INDEX. CITIES, &c., continued. PA FUND, Sinking, council shall provide...9...... 397 GRADING and Paving, council may provide for..387 -IOSPITALS, &c., council may erect..386...... INTEREST, council shall provide for payment on onds. 397 on bonds shall not draw more than seven per cent per annum.397 JUDGMENT, how rendered in mayor's court... 389 when to be rendered against prosecutor. 390. JURY, misdemeanors to be tried by..389....... JUSTICE of the Peace, when to act-as mayor.390 LEASES, how to be made, of school property..395 LICENSES, powers of council in relation to. 386 MAcItIous Prosecutions, how punished...390 MARKET Houses, powers of council concernin. 386 MARsHAL, shall be chief of police..........39 shall be subject to the orders of the mayor..396 MAYOR, general powers of....388........... shall preside at meetings of the council. 391 shall enforce laws and ordinances.......392 may administer oaths, take depositions and acknowledgments.392 may call aid of inhabitants and militia, when..392 may remit fines and forfeitures, how..3..93 may appoint officers, how..393........... MESSAGES, mayor shall submit to council from time to time.391 MEETINGS, Special, of council, how called..391 of school board, when to be held.....................395 MISDEMEANORS, jurisdiction of mayor's court in................388, persons accused of; how discharged......................389 NUISANCES, council may remove....I..................386 OFFIcEs, terms of.............................385. council -may create, what.................... 38G OFFICERS, what to be elected........................385 council to prescribe duties of.....I...................387 M ayor and council may -ppoint......................393 of school board, -what...............393 " " ~~to receive no compensation.................394: powers and privileges of; to be defined by ordinance...... 39G ORDERS, City, to be signed by mayor and attested by clerk...........391 ORDINANCES, how passed and proved.....................388 PAVING and Grading, powers of city concerning................387 PoLI.cE, council may establish and regulate.............386, 387 extra, mayor may appoint and dismiss...................391 marshal shall be chief of............ 0............396 powers of in arrest............................396 shall be subject to orders of mayor and marshal only............396 PRESIDENT Of Council, how elected, and duties..........I.....387 shall act as mayor, when..........................392 "tacting," provisions concerning.......................387 rROcESS, Style of......................384 mayor and police may arrest without.4.0a20.. 40.. 396 INDEX. 993 CI0~~~~~~TIES, &c., contib~nued.PAGE PROPERTY, dedicated to schools, management of.................. 395 of schools, board..................................... 395 exempt from taxation and debts due the city............................ 395 QUARANTINE, powerng.................... o............. 384 jurisdiction of city beyond corporate limits............................ 392 ECONIANcES, mayor may take, when.................................. 389 beaches o to be certified to district court.................... 389 RDEMPTION Of Property sol es................................... 385 IEPEAL of former acts..................................... 384 REPORT, annual, council shall publish.................................... 388 monthly.............. I..................................... 395 SCHOOLS, fines for misdemeanors to be paid to county treasurer, for support of schools.......................................... 388 general provisions concering....................................... 393 of property dedicated to...................................... 395 colored, provisions concerning............................... 395 what persons may attend........................................... 396 SCHOOL Fund, provisions concerning..................................... 394 STATEMENT. See Report. STREETS and Alleys, powers of city concerning improvement of........... 386, 387 the lighting of..................................... 386 TAXES, power of city concerning..................................... 385 for improvement of streets and alleys............................. 387 city property exemptfrom...................................... 395 for schools, to be paid in cash....................... 395 to be levied for schools.., 1......................393 for colored schools........................... 395 for sinking fund.......................... 397 for interest on city bonds.....................397 TIPPLING Shops, &c., power of city to restrain................ 386 TREASURER, to hold school fund...................... 394 to receive money from leases of school property..........395.... to be collector of taxes..........................396 TRIALS in mayor's court, proceedings in..................388, 389 TRUSTEES of Schools. See Board of Trustees. VACANCIES, in office of mayor, provisions concerning............390, 392 in school board, bow filled....................... 394 in board of examiners...........I...............3905 VETO power of mayor.........................309 1 WARDS, provisions concerning......................381, 396 WARRANT,.when issued, and how directed by mayor in misdemeanors...... 388 WITNESSES, mayor may summon........................389 on continuance, shall appear without sumimons................389 TOWNS AND VILLAGES, incorporation of, Chapter 47. ACTIONS, trustees may have, against owners of lots for collection of paving-tax..400, 401 may have against chairman for neglect to make semi-annual statements....401 trustee may prosecute after this incorporation...............403,ASSESSOR to be appointed by trustees....................400 13ORROWING Money, trustees shall have the power of.399........... 994 INDEX. TOWNS AND VILLAGES, continued. PAGE BRIDGES, trustees may erect and repair..... 399 CERTIFICATE of election, judges of election shall deliver to trustee..403 CHAIRMAN, board of trustees shall elect of their number..399 shall make semi-annual statement of receipts and expenditures..401 shall publish by-laws and ordinances.... 402 term of office........................402 CHAIRMAN, pro temnpore, board may appoint.402 COLLECTOR to be appointed by trustees.....400 CLERK, board shall elect.................9 COMMONS, board shall regulate the inclosure of.. 3 COMPENSATION of trustee, for services, on disincorporation..404 CONSTAnLE, how appointed.. 400............ CONTAGIONS, board may prevent..399....... DISINcORPORATION, probate court may disicororate, when..403 not until notice shall be published.....403 not until liabilities have been secured..40.. not to invalidate any right or contract...403 DRAM Shops, board of trustees may license and regulate..... 399 DRIVING, board may prevent furious......399 ELECTIONS, general, to be held on the first Monday of April annually. - 398 board shall determine contested..39..... vacancies shall be filled by special.... 402.. board shall appoint judges of...402........ judges shall publish notice of..402......... qualification of voters..........................402 clerk of elections, his duties...................402 how conducted............................ 402 judges shall determine ties by lot..................... 403 proceedings on failure to hold elections.................... 403 FINES, board may impose for breaches of ordinance...............399 board may recover, by action before justice of the peace........... 401 FInES, board may prevent......................... 399 FIRE AnRms, board may prevent firino- of................. 399GAMBLING, &c., board may restrain and suppress... 39.. HOSPITALS, &c., board may erect...................... 399. JURoRs and Witnesses, inhabitants competent............I.....401 JUSTICE of the Peace, actions miay be brought before...............401 LUMBER, &C., board may provide for the inspection of............. 3199 MEETINGS of board, when to be held.................399 quorum and attendance....................... 399..QQ NIGHT Watches, boai'd may establish................. 399 NON-RESIDENTS, board may sell lots of, for street improvements.........400 collector may collect taxes due from tenant of............... 4011 NOTICE, shall be given of special elections................... 402 of gen~eral elections...... 402 how given of application for disincorporation................. 400' NUISANCES, board may avbate..................... 3 99 OFF'ICERis, what, board may appoint..................... 400 0RDINANCES, chairman shall cause to be published...... 4 IND EX. 995 ~~~~~~TOWNS AND VILLAGES, continued.~~ r ~PAGAl PENALTIES imposed upon absent members................................ 399 imposed upon chairman for neglect to publish semi-annual statements....... 401 not invalidated by disincorpor................................... 403 PETTION how signed on application for incorporation.............. 398 POLICE, board may regulate............................... 399 PROBATE Cou, when may declare town or village incorporated........... 398 when may disicorporate...................................... 403 shall appoint trustee for the corporation dissolved.................... 403 trustees shall report to................................... 404 shall cause revenue accruing after disincorporation to be used for benefit of the town 404 EAL ESTATE, redemption of wen sold for taxes.......................... 401 STATEMENT, semi-annual to be made by chairman of board............... 401 STEAMBOATS, &C., board may regulate the landing of................ 339 STREETS, powers of trustees concerning........................... 399, 40 TAXES, ct.................................... 399 ow to be collected..................................... 401 TENANT, may improve streets and have offset against rent due the owner...... 400 not to pay more than amount of rent.................................. 401 TRUSTEE, probate court, when corporation dissolved........................ 403 shall take oath and give bond..................................... 403 shall prosecte suits, collect money due, &c.................... 403.shall report to probate.................................... 404 shall pay over money to county treasurer............................... 404 TRUSTEES, board of ow elected and term of office................ 398 general powers and duties........................399 shall appoint assessor, collector, &c.....................400 powers as to improvement of streets...................400 shall appoint judges of election......................402 VACANCIES in board to be filled by election..................402 WARRANTS on treasurer, how to be drawn..................404 WHARVES, trustees may regulate..399.................. cc COSTS, when the State or county is plaintiff, Chapter 76. in criminal cases. See Crimes and Punishments. in -cases under apprentice's law......................92 when county attached to another for judicial purposes.............459 in civil actions. See Cede of C~ivil Procedure. See Lunatics and Drunkards. See Eixecutors and Administrators. See Jutstices of the Peace. COUNCIL. See Cities. COUNCIL of Kansas Territory. See Organic Act. COUNTIES, new, entitled to one representative.................84 how to he attached to senatorial districts..................89 shall be attached to judicial districts...................59 legislature shall provide for the organization of.............. See 6Constitution. ANDERSON, an act to locate the county seat of, Chapter 55. ATCHISON, an act to authorize county board to correct tax books, Chapter 56. BRECKENRIDGE See Lyon. CHASE, an act to locate the county seat of; Chapter 57. DA~vis, taxes of, for 1861, legalized.................... 101 996 INDEX COUNTIES, continued. DICKINSON, an act to locate the county seat of Chapter 58. DONIPHAN, an act to legalize action of county board.443 GREENWOOD, an act to organize the county of.443 LYON, name of Breckenridge changed to, Chapter 61. an act setting apart Washington park in the town of Emporia, for county buildings, Chapter 62. MADISON an act prescribing the transfer of records and legalizing official acts.. 445 officers. of, to deliver papers and records to officers of Lyon county445 register of deeds of Lyon county to transcribe and deliver records of deeds to register of Greenwood county........446 treasurer of Lyon county to transcribe list of property detached from Madison county, &c...............................*446 clerk of Lyon county to make statement of outstanding warrants, &c. 447 treasurer of Greenwood county to collect -taxes.7 assessment, &c., of taxes in Madison county for 1860, 1861, 1862 legalized. 447 OSAGE, an act to locate county seat of, Chapter 64. POTAWATOMIE, an act to locate county seat of Chapter 65. COUNTIES AND COUNTY OFFICERS, general provisions, Chapter 52. AccouNTs, county commissioners to examine and settle all accounts of county. 412 accounts to be made out in separate items and verified by affidavit.414 county clerk shall preserve and file all accounts acted upon by the board. 416 he shall designate upon every account audited and allowed, the amount so audited and allowed....................16 AFFIDAVIT, accounts against the county must be verified by.414 affidavit to be filed on application to have coroner serve process........425 APPEAL, may be taken from, decision of board to district court.........414 AssESSMENT, county treasurer shall assess property of any person liable to pay taxes, whom the county assessor has failed to assess...........431 AUDITOR'. county clerk shall be ox-officio county auditor............418 BOND, when appeal taken from decision of board, appellant shall execute bond. 414 county officers shall execute and deposit bonds...............433 if any officer reftise or neglect to give, renew or deposit official bond, his office becomes vacant..........................434: Booyxs, board of commissioners shall furnish suitable' books and stationery for the use-of county officers.........................415 treasurer to keep, showing amounts of his receipts and expenditures....... 430 and papers of county officers to be open to the public...........-432 BORROWING Money, county commissioners may borrow money, for what purposes, 412 shall submit the question to the people................... 412 shall publish notices of election...................... 412 votes to be by ballot........................... 413 CHAIRMAN Of county board shall preside.....................414may administer oaths........................... 414 shall sign cotinty orders.............I............. 414 CLA IM, nature of service for which allowed, to be shown in county order......414: if Aisallowed, appeal may be taken-.................... 414 COLLECTOR of taxes, county treasurer shall be................. 431 COMPENSATION Of county commissioners................ 411, of county clerk for copy of record................... 416 INDEX. 997 RCOUNTIES AND COUNTY OFFICES, continued. PAGE COMPENSATION of probate judge.417.................................... 47 of county treasurer..................................... 430 of assessor..................................... 432 See County Officers. See Fees. COPIES, of records and papers of county officers shall be evidence in all cases.... 433 COUNTY, general corporate powers of.................................... 409 powers to be exercised b county commissioners........................ 409 style of suits by and against..................................... 409 COUNTY Orders shall be signed by the chairman and attested by the clerk...... 414 shall specify nature of claim for wich issued.................. 414 board shall examine orders returned by county treasurer............. 415 clerk shall si.g...416.......................................... clerk shall not issue unless orred by the board.......................... 416 shall be entitled to preference in the order in which they are presented to the county treasurer.......................................... 430 COURT House shall be provided by county.................................409 county board shir................................... 412 ~DEPUTUeS shall take oath of office4 33.............. o....... Z:43 See Gounty 9//leers. DIsTRIcTs; each count shall be divided into three commissioner districts..... 411 ELEcTIoNs; one county commissioner shall be elected annually............... 410 county board shall establish precincts for, and fix time and place of first election..................................... 412 submitting to vote the question of borrowing money...................... 412 notice of shall be gYiven..........................412 manner of conducting..........................413 EVIDENCE; copies of files and records of register of deeds shall be, in all ca sos... 420 copies of all papers and records of county officers, evidence in -,,I cases.....433) EXE CUTION shall not issue on judgment against the county..........410 EXECUTORS and admninistrators of sheriffs may he prosecuted on official bond.... 424 EXPENSES, county beard shall examine.....................412 may borrow money to meet.......................412 of burial on coroner's inquest, how to be paid................428 FURNITURE; Board shall provide for county offices...............415 GOV E R NORshall declare county office va~cant when.......... 43 INDEX. See Register of D~eeds. JAIL, county shall provide..........................409 sheriff shall have custody of.....................423 JUGET, against the county, execution, shall not issue on.41 JURORS, inhabitants competent for, in trials in which county is a party.......410 coroners, how summoned, land duties...................426 JUSTICE of the Peace, may act as coroner when coroner absen t.........428 LICENSES, county board may grant.....................412 MEETING5S Of cunty hoard, when shall be held............I....411 TOTICE shall he. given of vote on questions of borrowing money......... 413co of appeal from decision of board to be served on county clerk...........414clerk shall notify county attorney.....................414 OATHS; county commissioners shall take oath of office.............411 chairman of boa-rd may adm-ninister..................... 41.4 998 INDEX. COUNTIES AND COUNTY OFFICERS, contued AGE OATHS; claimant shall make oath to his account... 41 oath and official bond, county officers shall file... 3 deputy shall take like oath...43........ refusal to take shall vacate office... 434..... conviction of viflation of, shall vacate office.... 43 See County OQcers. OFrFicEs, board shall provide, fire proof...409.. 412 of county, shall be kept at the county seat...432 PENALTY, for neglect to keep offices, books. and papers, ope to the public. 432 for neglect of duty on part of commissioners... 415 for neglect to deliver county treasurer's ooks b to successor... 430 for receiving illegal fees................ See S7er?ff. PETITIONS; townships shall not be set off except on petition... 413 township may be altered on petition of a majority of legal voters.. 41 PLATS of new townships shall be recorded by the clerk..... 415 copies shall be filed in the townships....... 415 PROPERTY, county may contract conceIning.... 409 county board may mnake necessary orders concernin.412 RECORD; county clerk shall make certified copies Of when demanded.41 probate judge shall keep, of all probate business.419 county clerk shall keep, of proceedings of the board.418 county surveyor shall keep, of all surveys431 See Register of Deeds-. REMTVOVAL; county office shall become vacant on removal of incumbent.....431REPORT; c:aunty board shall publish, annually, receipts, expenditures, and al'owances.415............................ IRESIGNATION shall be made to the officer authorized to fill vacancy in such office 434: ROADS; powers of county board, in relation to................ 412 SEAL, county board shall have, and ma,,y alter the same.............413 SUITS, in which a county is a party, style of..................409 inhabitants competent jurors and witnesses though county interested......410 service shall be made on the clerk.....................410 "SUERsVISOntS,' meaningy of the term in this act............... 434 SURETIES Of sheriff or jailor, liable for acts of his deputy..........423, 424I SUR,'GEON',, msay be employed by coroner to aid in inquest............428 TAX, j udgment against county, to be collected by, and not by execution......410 TAXES, county board to apportion and order the levying of...........412 county treasurer authorized to receive at all times when due. Ch. 46. county clerk to certify amount of warrants to be received in payment of taxes levied, to county treasurer. Ch. 46. TowNsEIips, county board may set off, and change boundaries of......... 412 new, not to contain less than thirty-six square miles and three hundred inhabitants..............................413 plats to be made and recorded, and copies filed in new townships.......415 names, and boundaries, and changes to be filed with Sertr f tt. 1 VACANOIES, in. county board to be filled by remaining commissioners and clerk.. 410 officer authorized to fill, to receive resignations...............4- 34 INDEX. 999 COUNTIES AND COUNTY OFFICERS, continued. PAGE VACANCIES; how may occur, before expiration of term...................... 434 See Countdy Oft/ers. VERDICTt................f................... 426 VOTE of each commissioner to be recorded, when........................... 116 WARANT; coroner may issue if jury find a crime to have been committed..... 427 WARRANTS. See County Orders. WITNESSES, inhabitants competent in actions where county interested.......... 410 oath to be administered to in coroner's inquest........................... 426 to subscribe testimony...................................... 426 coroner may subpena on inquest..................................... 426 COUNTY OFFICERS. ASESO, term of office, qualifications, &c.................................. 432 shall give bond.................................................... 432 county board may a orize to appoint a-deputy...................... 4 compensation not to xced two dollars and a half per day................ 432 compensation three dollars pe.................................... 562 COUNTY Attorney. Office abolished. See District Attorney. Ch. 16. COUNTY Clerk, term of office an d.................................... 417 shall be clerk of the board and county auditor........................... 418 shall appoint..................................... 418 his sureties responsible for acts of deputies............................... 418 vacancy to be filled by county board................................... 418 office where kept, and general duties.................... I............... 418 shall notify count attorney of suits against the county....................410 also, of appeals from decisions of the board.414 shall enter date of cancellation of county orders..............415 shall make plats and records of hew to wnships.............. 4 15 shall file copy with the township officers.....I............415 shall record p roceedings -Of the board...................416 shall make entries concerning the raising of money.............416 shall record votes of members.....................416 shall sig~n orders............................416 shall sign the receipt of county treasurer.................416 shall file accounts acted upon by the board.............. 416 and indorse amount allowed thereon...................416 shall make copies when demanded....................416 compensation for the same.......................416 shall number and enter county orders...................416 shall transmit statement in regared to new townships to Secretary of State... 4,16 compensation to be allowed by the board..................416 to issue ferry licenses, &c........................555 if prevented from opening election returns, deputy may open.........498 county commissioners may appoint deputy, when.............498 shall not issue a greater amount of orders than amount of taxes levied, less delinquencies............................730 See Orders, Coun~ty. special to be appointed by Governor on organization of new counties......435 See, Schools. See BRoads. See Taxes. See Fierries. to certify,a ount of taxes levied to county treasurer.............4351 1000 INDEX. COUNTY OFFICERS, continued. PAGE COUNTY Commissioners, shall exercise the powers of the county.409 when elected, &c...................... 410 vacancies to be filled by remaining mnember and clerk410 shall levy tax to pay judgments against the county.410 term of office, three years................... shall divide county into commissioner districts.411 time and length of meetings............ shall take oath of office....................... 11 compensation..........................411 general powers.......................412 shall submit question of borrowing money to the people412 may set off and alter new townships upon petition, when413 seal, and rules for meeting..............413 presiding officer of board, and powers of... 1 duties of board in relation to allowance of accounts414 to furnish hooks, stationary, seals, &c., to county officers415 shall examine annually cancelled orders..415 shall make a list thereof................415 shall publish annual statement of receipts, expenditures, and allowances 415 penalty for neglect of duty.............415 may fill vacancy in office of county treasurer.429 duties in relation to ferries. See Ferries. shall provide armories for volunteer militia.700 contested elections for township officers to be tried before510 shall allow accounts according to the legal or ordinary compensation, dollar for dollar.................................730 district attorney shall advise without reward.................205 shall prescrihe rates of toll of hridg~e and ferry companies........... 70 may on petition render Game law inoperative in their county........ 576 special to he appointed by Governor on organization of new coIunties......435 shall have care of jails..........................359 See Schzools. See, Taxes. See Strays. See Elections. See Jurors. See Poor. See Ferries. See Readts. CORONER, when elected, term, bond, &c....................425 shall act as sheriff, when..........................425 and shall perform all the duties of the sheriff................425 duties in regard to holding inquests....................426 shall summon jury.......................... 4 20 may subpoena witnesses...........I........426 if crime found shall keep verdict secret.,.,..................427 may arrest person charged....................427 may make a warrant returnable before a justice of the, peace....4.....27 contents and effect of warrant......................427 shall return inquisition evidence, &c., to district court.............427 duties in regfard to burial expenses.....................428 j ustice to act as a, coroner, When.....................428 surgeon to. he summoned, when..I..............428 Whein to serve process...........................227 REGISTRu OF DEE DS; term of office, bond, &c................ 418 may appoint deputy, for whose acts his sureties shall be responsible...... 418 INDEX. 1001 ~~COUNTY OFFICERS,~~ continued.~~ ~PAGE REGISTER Of Deeds; duties of deputy in case of vacancy..................... 419 general duties of Register..4....................19Q forms of indexes.................................... 419 form of receivin-book..................................... 419 duties in reard to plat-book...................................... 420 general alphabetical index to be kept................................... 420 fees to be paid in advance...................................... 420 certified copies of records shall be evidence in all cases................... 420 shall record deed of Land sold for taxes.................................. 858 shall record certificate of incororation of religious societies................ 373 may take acknowledgements of deeds.................................. 355 SERIF shall not hold office for more than two consecutive terms........ 63 term of office bond &c..................................... 422 under-steriff's vacancies and deputies................................... 423 sheriffs responsible fr acts of under-sheriffs and deputies.................. 423 appointments of to be filed in office of county clerk..................... 423 shall have custody of jail........ 423 ~~~~~~~~~general duties of......................... 423, 424 shallelivr to successor property, prisoners, writs, &c............... 424 what businessmay complete on expiration of term....................... 424 effectof default, &C., of sheriff or under-sheriff.......................... 424.of papers served on sheriff..................................... 424 shall not practicelaw............................................... 424 may be fined or attached by the court.................... 424 penlty for receiving il l fs........................4......2 sheriff, meaning of term, how may be extended. 837 shall levy a-mount of unpaid taxes on personal property, when........871 See, Surveyor. See Code of Civil Procedure.'See Criminal Procedure. See GCrime's and Punishments. See Convicts. See Jails. See IlEbeas Corpus. SUPERINTENDENT, County. See Schools. SURVEYOR, County; term -of office, bond, &C.................431 may appoint deputy..........................431 certificate to be legal evidence...................... 43001 general duties...........................I..431 shall keep a record and transmit the same to his successor..........431 shall number surveys.........................431 shall preserve field notes and make plats..................431 C~ounty board may fill vacancy..................... 432 See Surveyor, County. TREASURER, County; term of -office, bond, &c............... 428 chairman and clerk of board may approve bond, when............. 428,may appoint deputy.429...... county commissioners may fill vacancies.................429 who shall not hold the office of county treasurer.......429 general duties............................ 429 shall pay money only on orders...429 shall keep accounts and make settlements annually in July..........430 shall receive county orders in payment of taxes...........430 1002 INDEX. COUNTY OFFICERS, continued. PAGE TREASURER County; books and papers to be delivered to successor under oath.. 430 penalty for neglect to deliver............40 compensation.........................430 shall be collector of taxes............431 shall assess taxes in certa;n cases........31 may receive taxes at all times when due...35 See Taxes. COUNTIES, NEW, ORGANIZATION OF. AFFIDAVIT required on application for organization of new counties.. 435 BOARD of Canvassers, who, and their duties... 436 CLERK, special; governor shall appoint...4..35 how shall qualify....................... 435 shall certify result of election to the Secretary of State...437 shall procure transcripts from county fr6m which detached... 437 COMMISSIONERS, special; governor shall appoint... 435 shall divide county into townships...4...36 shall give notice of first election of township and county officers..436 shill canvas the vote..436 437 COMPENSATION; of clerk for making transcripts...437 CouNTY Officers; term of office...437......... COUNTY Seat, temporary; governor shall declare...435 permanent, how located...36............. DISrRICT Court; vote on county seat may be contested before... 436 ELECTION; commissioners shall notify...4...36 how conduct-I..............................436 for location of county seat, how conducted................436, 437 GOVERNOR shall appoint special commissioners.................435 shall declare temporary county seat......................435 MAP Of County, shall be made and recorded, and copy transmitted to Secretary Of State..............................438 NOTI cES shall be given of elections.....................436 OATH1 Of Office; who shall take.....................435, 436 SECRETARY Of State; result of vote for county seat to be certified to.......437 map of county to be filed with.....................438 TRANSCRIPT of records to be made by clerk..........I....I...437 VOTES; canvass of.4........................36, 437 COUNTY; to have one-half appraised value of strays...............847 COUNTY Board. See County (Comm~issioners. COUNTY Clerk. See Cilerks. See Counties and County 9 fcers8. COUNTY Commissioniers.'See, Coanties rind County Qfllcers. See Election of Towshi~p Officers. Sec Order's, Cotinty. See Roads. See Strays. See Schools. See Surveyors. See Townships and Township -O'ftcers. See Taxes. See Per.ries. See CZounties, organization of new. COUNTY Officers; election og how to be contested. See Elections, manner ofcontesting. COUNTY Orders. See Orders, County. See Counties land County Qfliers. COUNTY Seats; temporary of new counties to be! declared by Governor.....435 See Counties, organization of new. COUNTY Superintendent. See Schools. INDEX. 1003 COUNTIES. NEW, GANIZATION O, continued. PAGE COUNTY Surveyor. See Surveors. See Coounties and County Oficers. COUNTY Treasurer. See ounties and County Officers. duties of in relation to taxes. See Taxes. COURTS, COURT, District, of the United States, established for Kansas................. 77 COURTS of Kansas Territory............................................ 41 COURTS of Kansas; what the judicial power of the State shall be vested in..... 57 COURT, Supreme; organization and jurisdiction of. Ch. 66. what shall consist of and how constituted.............................. 57 shall have oriinal jurisdiction i Habeas Corpus and Mandamus............. 57 ADJOURNMENT; when quorum not in attendance........................... 450 CERTIORARI court may issue writ of, in criminal cases.................... 449 CLERKS of to be appointed....................................... 57 duties when quorum not in attendance................................. 450 general duties...I......................................... 451 shalldoffice.................................. 451 CNTEMPT; court may punish...................................... 449 CONTINUANCE; actions shall not abate when court continued for want of quorum. 450 CRIER court shall appoint, hi es.................................... 450 ma serve order warrant notice or citation............................. 451 DISTRIcT COURT; writs directed to, may be made returnable to Supreme Court. 449 may be ordered to execute judment or decree of Supreme Court........... 451 ERROR; court may issue writs of in criminal cases.......................... 449 practice in, in Territorial Supreme Court, shall be pursued.................. 450 FEES; of clerk, same-as of district clerk..............451.... of crier.............................. 451 HABE AS CORPUS; writs of; may be issued in any case.............. 449 NOTICE shall be given of special terms...............450.... ORIGINAL Jurisdiction; what shall c,,nsist-of................. 449 IPROCEEDINGS in Territorial Supreme Court to govern.............. 450 PROCESS; clerk shall issue...................451.. RECOanS and papers shall be kept at seat of government.'..........450 REPORTER................................ 57 See Court, Reporter of. RULES; court may prescribe........................ 450 SHERIFF; all process shall be directed to................. 45 1 SUPERSEDEAS; court may issue writs of.................... 449 TERMS; when shall be held........................ 450 VACATION; justices may issue writs during................. 449 WRITS, what, court may issue........................ 449 COURT. REPORTER OF SUPREME COURT. Ch. 67. AUDITOR;.shall draw warrants for costs of publication of reports....... 452, 453 BOND; reporter shall execute......................... 453 COPYiRIGHT'of reports shall be property of the State.................453 DECISIONS; how prepared and reported..................... 453 DISTRIBUTION Of reports, how made..................... 4 552 EXCHANGE of reports with other states...................452, 453 ILIBRARY; copies of.reports to be deposited in.................. 452 PAMPHLET form; reports may be printed in, when..1..............453 1004 INDEX. COURT, REPORTER OF SUPREME COURT, continued AG PUBLICATION of volumes of reports, when to be made..... 45 REPORTS; how prepared and published..... 52 SALARY of reporter, what...4....7............53 SALE of reports.........................53 COURTS OF JUSTICE; ORGANIZATION OF. Ch. 68. DISTRICT COURTS; organization, &c.......454 judges of..........................57 ATTACHMIENTS; judges may dissolve in vacation.. 454 ATTORNEYS may be assigned to prisoners, whe... 454 when to act as judge pro tem....................... 55 CLERK; to have custody of seal.. 4..54 to enroll names of attorneys in election of judge, pro tem... 45 ELECTION of judge pro tern., when to be had....455 INJUNCTIONS.........................5 JUDGES; powers and duties...454........... when may hold terms of court in other districts.. 455 JUDGE, pro temrn., when to be elected... 455 JURISDICTION of District Court..................... 54 POWERS of District Court...45.... SEAL; how procured..................54 TERMS of, inl the several judicial districts....456 certain counties attached for judicial purposes...456 certain counties detached from other counties to which the had been formerly attached........................... TERMS Of; in flrst judicial district.....................456, 460 in second judicial district.........................457 in third judicial district........................ 457, 460, 461 in fourth judicial district.....I....................458, in fifth judicial district..................459, 461 special and adjourned, may be held by order of judge.......... 459 order for, to be published........................459 TERRITORY of Kansas; procedure of laws of; to continue in' force... 455 VACATION; powers. of judges during...............I......454 COURTS, CLERKS OF DISTRICT. CRAP. 74. ACK-NOWLEDGMENTS, clerk may take....464 BOND of clerk, deputy and clerk pro tem.................463, 464CERTIFICATE of appointment of deputy to be entered on, record..........464 CLERK pro tern., when j udge -shall appoint.............464 DEPUTY, clerk ma.y appoint........................ 464 DUTIES and powers of clerk.~........464: OATH required of deputy and clerk pro tern...............463, 464 VACANCIES, how filled......................464: See Code of Civil Procedure. See C!ode of Cirimninal Procedure. See Courts cf Justice. COURT, PRORATE,, shall be established, in each county..............58 appeals from, shall be to district court.......58 jurisdiction of.................. 465 judge of; shall execute a bond,, and subscribe an oath................465 he shall be his own clerk.........................*.. 466 INDEX. 1005 COURTS, &C., continued. PAGE court shall have a seal........................................... 466 when recular terms shall be held...................................... 466 special terms may by held.......................................... 466 See Executtors anc Aclministrcors: Wills: Guardians and Wards Minors: -Dower: -Apprentices: Corporations: Habeas Corpius. COUnTS for Trial of Contested Elections. See -Elections Contested. See Towns and Villages. COURT I-louse, sales of lands under executions to be held at..................... 200 shall be provided by county........................................ 409 county board shall build and repair.................................... 412 CRIER of Supreme Court, appointment of, and duties.......................450, 451 CRIMINAL COURT of Leavenworth County. CHAP. 35. shall adopt a seal.................................... 348 shall have same jurisdiction in criminal cases as district courts.............. 348 may issue writs of habeas corpus..................................... 348 may impannel juries, &c........................................... 348 probate judge to be judge of...................................... 348 compensation of judge..................................... 348 judge shall not practice law....................................... 3.48 appoint a clerk....................38............... 348 clerk, how qualified, and compensation................................. 348 to be four terms annually......................................... 348 sheriff to be ministerial officer of..................................... 348 cases now pending in district court to be transferred...................... 349 judge pro tem. may be appointed.....................................A349'CROP of Tenant, landlord may have lien on.664................ GENERAL PROVISIONS REGULATING CRIMES, &C. CHAP. 033. A. B. C. Table, setngu,&c.3 permitting to be Iset up, &c........................333 betting at..............................333 letting house for that purpose.......................333 ABANDONING child under six years of age...................294 ABDUCTION of woman...........................291 of woman under eighteen years......................291 of child under twelve years..................... 293 of colored persons............................293 ABORTION, giig medicine to produce................ 293 ABsTAINING, from prosecution.......................316 ACADEMY, burning of.......................... 29Q,5 ACCESSORY, before and after the fact......................341 ACKNOWLEDGMENT, falsely certifying....................307 forging certificate of...........................306 ACTION, right of; not merged in felony....................344 ADULTERY, how punished.4.......................331 AGENT, embezzlement by.........................301 AGREEMENT, for compounding felony.....................316 by officer, to receive bribe........................322to sell office or deputation........................325 AIDING escape of prisoners.......... *....319 64 1006 INDEX. CRIMES AND PUNISHMENTS, &c., continued. PAG ALE-ousE, keeping open on Sunday......................... 336 ALTERING, Will, deed, records, &c............................306 bank note, or check on bank.............................. 307 ANIMALS, suffering to go at large............................289 maiming, beating or torturing.............................36 APPOINTMENT bribery to procure...........................323 APPRENTICE, embezzlement by.............................301 ARBITRATORS, bribing or receiving...........................31 ARSENIC, selling to minor..................................336 exemption of physician, prescribin.........................336 ARSON, in first, second, third, and fourth degrees......................... 94 punishment of.............................. 296 with intent to commit robbery rape, burglary, manslaughter, or other felony............................................ 292..of officer..........................317 with intent to commit crime, not punishable when the crime is committed 30 ASSIGNMENT, to defraud creditors, parties and privies to..303....... of public securities, forgery of.............................305 ATTEMPT, to procure perjury...............................314 to corrupt juror, arbitrator or referee.......................315 to influence juror improperly.............................. 16 to rescue prisoner......................................18 to break prison.. 321 to bribe officer.........................................324 to bribe voter..............32.......................... 5 to influence voter by threats.......................327 to commit offence prohibited by law....................340 BAIL, fialse personation in becoming.....................313 BAILEE,' embezzlement by.........................301 BANK Note, counterfeitingb........................307 using spurious, as false token...................... 30 2BARN, burning, of..............................295 BARRATRY, punishment of.........................322 BAWDY House, keeping...............t;...........333 who deemed keeper of.....................-.333 lease of, when void...........................334 BETTING, upon certain gaming tables....................333 does not excuse from testifying.....................334 on elections.........335 BIGAMY, definition and punishment......................330 cases in which it does not exist......................330 indictment for, where tried.............I...........331 punishment of unmarried person.....................331 BmLL of Exchange, forgery of.......................308 BOARDS, pile or raft of, burning, &c......................304 BOATS and Vessels, overloaded so as to drown................ 589 burning, to defraud insurer.......................295 maliciously destroying or injuring, &c....................303 cutting adrift, Sinking, &o........... 304 INDEX. 1007 CRIMES AND PUNISHMENTS, &c., continued. PAGE BOATS and Vessels, bursting boiler of, by neglect, &c........................ 289 BRANDS, Of animals, altering...................................... 299 BREAKING piS..................................... 320 BREWERY, burning................................... 295 BRIBERY, of witness, to absent himself avoid process, &c.............. 315 of arbitrator, referee or juror...................................... 315 of offier, to procure vote, opinion, &c.................................. 323 in consideration of vote, opinion, &c., previously given............. 323 attempt at, with officer...................................... 324 by giving office, &c., to procure election........................ 324 of voter.................................... 325 ~ ~eBRIDGES, burning one..........o....................... 09 BRIN.\GING into the territory counterfeit m-oney.....309..................................... 310 into the territory stolen property.....................310 BURGLARY, defined, punishment..................................... 296 committed at same time with larceny.................................. 298 assault with intent to commit..................................... 292 BURNING, inabited dwellin-house, shop, warehouse, office or storehouse, barn, stable, church, college, academy, school house or public building, brewery, distillery, grist mill, paper mill, fulling mill, saw mill, carding machine or manufactory...................................... 295 insured property, to defraud insurer................................... 295 stocks, grain, grass, herbage y, orchard, fence, toll or public bridge..... 295 pile or raft of wood, plank, hoards or lumber............................ 304 or other instrument of writin............................. 313 BUYING any forged instrument of writing.310 and selling offices, deputations, &c.....................2 stolen property...........................302 CAMP MEETING, erectin,- booth, &c., for sale of liquors, within one mille of....335 CAOcutting, adrift, injuring...................... 304 CARDLING Machine, burning of.. 295 CARGO, barning, to defraud'insurer.....................2,95 CARRIER, embezzlement by...~............*.:..........301 CASTING. away boat or vessel.......................303 CTLadministering poison to, maiming..................303 al in- marks or brands of; larceny...................299 cruelty to..............................336. CERTIFICATE, of probate of will, forgery of.................365 of acknowledgment of deed, forgery of..................305 of record of will or, deed, forgery of....................305 of territory, for payment of mnoney, forgery of...............305 of territorial stock, forgery of......................305 of acknowledgment or proof of deed, certifying falsely......... 307 of deposit, forgery of...........................307 of court or officer, forgery of........................306 CERTIFYING, falsely, acknowledgment or proof of deed..............307 CHEAT, intent to, as to whom it may be shown..8............ 46 CHEATING,'M by false tokens, &c.......I............ 302 by false personation.........................302 1008 INDEX, CRIMES AND PUNISHMENTS, &c., continued CHECK, or bond, forgery of................. 307 CHILD, under ten years of age, rape upon... 291 under twelve years of age, enticing away... 293 under six years of age, abandoning........294 CIVILLY Dead, who considered to be....... 4 CLERIK, embezzlement by....301 CLIPPING Coin, forgery..........312.......... CocK-fighting, on Sunday..30............. COIN, counterfeiting............307 passing.............................. clipping, scaling, impairing, &c............31 COLLECTOR, unlawfully exacting taxes.......326 COLLEGE, burning of..................... 5 COMPOUNDING offences...................'. 316 offences upon indictment for what need not be proven. 317 CONCEALING offences upon indictment for what need not be proven. 317 offender, after felony............. 341 CONFESSION of judgment, personation of another, in.....313 CONVEYANCE, to defraud creditors.....303..... making, without reciting previous...... 303. falsely certifying acknowledgment or proof of..307 personation of another, in acknowledging.. 313 CoNVIcT, rescue of.................. 18 aiding to escape......................319 escaping, punishment............................ 320 conniving at, or suffering escape....................... 321 may be retaken.............................. 322 in penitentiary, under protection of the law.................. 344 CONVICTION,- not to work corruption of blood.................. 344 when to work incompetency as voter................... 337 when to hold office........................... 337 when to work forfeiture of office.........I............... 327 form~er, wben may be pleaded...................... -341 second, for like offence, punishment... 342 may be had of offence of less degree tban that charged in indictment...... 343 of one degree, bars trial for same act for another degree............. 34:3 of person under sixteen, of felony, punishment................ 344 not to work forfeiture of estate....................... 344 CORPORATION, Seal of, forging......................... 308 making false entries in books of..........I............ 308 CORROSIVE SUBLIMATE, selling without label, and to minor.......... 336 exception of physician.................... 336 COUNTERFEITING Will, deed; certificate of acknowledgment, probate or record; warrant, order,7 bill, certificate, or other public security: certificate of public stock, or assignment, endorsement, or transfer thereof; seal of court, public ofcofficer, territory or corporation; record, return or entry of record.. 3035 banknotes, bills, &c..........................288 order or check on bank.........................288 process, pleading., certificate, -order or allowance of court or officer, or license.. 308 iNDEX. 1009 MES AND PUNISHMENTS, &~C~., continued. PAGE COUNTERFEITING any instrument, the act of another................... 309 COUNTERFEIT Plates, making, enraving or possessing................... 308 COUNTY Treasurer, false entries in books of................................ 309 COUTS, sealing recordsand papers of.................................... 300 frgery of seal of......................................... 306 district, jurisdiction as to offences...................................... 345 CREDITORS, conveyances to defraud......................................... 303 CRUELTY to animals................................................. 336 DAM injuring, destroying, &c..................................... 304: DEAD Bodies removing from grave...................................... 332 opening grave, &c., to remove..................................... 332 ~~...excepted cs.......................332 DECOYING child under twelve...................................... 293 DEEDS, stealing or embazzlincy......................................... 300 makin ithout reciting previous..................................... 303 receiving such to defraud....................................... 303 forgery of....o.............................................. 305 taring, burnin and destroying....................................... 313 DEFINITION, of terms "felony," "infamous crime,, "misdemeanor," "crimne," "offence, criminal offence, personal property," "real property," "real estate propert" person...................................... 345 DELIVERY, of counterfeit money.~.. - o.. 307 —'DEPUTATIONS, to office, buying and selling... e...* _.-. 325 what not included in prohibition....................................... 326 void, when sold................................... 326 assum ing office without........................................ 327 DESTROYING, boats or vessels, windows, doors, gates, fences, inclosures, and trees, piles or rafts of wood, lumber, &c.. land marks, mile post's, &c.......303 will, deed or other -instrument...........313 DISTILLED Liquors, retailing on Sunday.........I........... 336 D~iMINISIEING Coin.................... I.....312 DISTILLERY, burni g. of........... I........................295 DISTURBANCE of religious worship..... 335 DRFforgery of..307 DWELLING-IIOUSE, inhabited, burning... 294what to be deemed in -cases of arson...... 294 DIE, for counterfeiting, making, &c..........................313,ELECTION, bribing to secure,........................ 32betting on, or becoming stake-holder................. 33 5 EMBANKMENTS Of Mill-dams, destroying.. -.. 04 EMBEZZLEMXENT, of will or deed...... 300 of records., papers, &c., of Courts........................ 300 by clerk, apprentice,, servant............................ 301 by tenant or lodger....................301 ENDORSEMENT, of public security, forgery.................... 305 Z1-NGINE, mnaliciously destroying or injuring.. -. -.....303 for counterfeiting, making, having, &c.................... 313 ENGINEER of steamnboat, when guilty of manslaughter............. 289 LE NGRAVINTQ, counterfeit plate.........,...,.............308 1010 INDEX. CRIMES AND PUNISHTMENTS, &C., continte PAGE ENTICING child under twelve years............. 23 ENTRIES OF recor(, forgery of......................... 06 E. O. TABLE, setting Iup. &c....... 3. o.32 permitting to be set up in house, &c...... 33 betting at............................33 EQUALITY, setting up, keeping, &c......... perminitting to be set up in house O......... 33 betting at..................3.. e EIRASURE, total, when forgery........................ 11 ESCAPE; aiding prisoners...... 319.... of prisoner from penitentiary............ 32 conniving at or suffering.. 32.............. EVIDENCE, on enarge of receiving stolen property, What neessary...30 on charge of compounding offences........... 317 EXCHAN(CE, of counterfeit mnoney...307...... ExToRTION; letters sent with a view to... 29. by officers under color of office...326....... FALSE Certificate, of acknowledgemrnent of deed, probate or will, record of will or deed, of state stock..................05 of court or offlcer................... 3 0 FALSE Entries; making of, in books of state, or county treasurer, or auditor, or corporation...................... 3...09. FALSE Personation, of anothler............................... FALSE Tokens and Pretences; obtaining signature, &., by..302 obtaining goods, &C., b.........................302 if false token be spurious bank note, &c., punishment.............302 FALSE Altering, will, deed, &e.......................... 305C F"'ALSCIFY I N GRecords............,.,............ ~...... 0`06 coin...................................,...... 312'to 3 ak bettan up, keeping, &e....~............,.............. 332, permittingtob set up in house, &c......................... 3 93, FELO DE SE; assisting in self-mnurlder, man-slaughter...,................ 283 forife-in-re of estatets of,,abolished.......................... 3`44&FELONY; compoundingl or1 coneealing...............................,1 a1ccessories before the f'ac t.......................,...,.... -.- 341 accessories,after the fact.......................................... 341 prineipals in second de'greCe................,............ - 341 persons under sixteen, punishm-ent...................................,. 344 right of actionl no1t Merged in.............~..........,.,.................... 344 definition of the term..............,,...................... 345 FENCE; bur-n-ing of.........,...,.,...,............... 29 FERMIE N TED'liquors; retailing onl Sunday.......,.,................... 330; FINE; not to be imDeosed, when........... --..................... 3 421 FINE; no0t to exceed $1,000, when1..,....,............,.,,...~......,,342~ niot to exceed $200, when..........................,......... 343:, to be not exceeding $I00, when.,,.....,............. 3 43 inay 1)0 recovered by indictment, when.....,.......................... 340FOEFEITURE Of Offlee, whlen....,............................ 327, 3 4 4 of estate, not workied by conviction....,....,....., 34 INDEX. 1011 CRIMES AND PUNISMENTS, &C., continued. PAGE ORFEITURE in cases of suicide, death by casualty, and fleeing from justice, abolished 344 FORGERY; dgrees and punishment.................................... 305 of will, deed, certificate of acknowledgement, probate, or record; warrant, order, bill, certificate, or other public security; certificate of public stock, or assignnt, endorsement, or transfer thereof; seal of court, public office, officer, state, or corporation; record, return, or entry of record.................. 305 of ank note, bill, &C., order or check on bank........................... 307 of process, pleading, certificate order, or allowance, license, or any instrument, the act of...................................... 309...................................... 309 other cases of.309......................................... 312 punishment of............................................ 341 FORMER Acquittal, may e...................................... 343 When not to bar second trial...................................... 343 ~FORMER convi~ction may be plead..................................... 331 FORNICATION, and incestuous connection...................331 by guardian, with his ward under eighteen............................... 331 FRAUD, officer guilty o in office...................................... 326 FRAUDULENT Assignments, parties and privies to.......................... 303 FRAUDULENT Pretences, obtaining goods, &c., by.......................... 302 FRUIT Trees, burning of....................................... 295 destroyin or injuring........................................ 304 FULLING Mill burning of...................................... 295 GAMBLING Device or Table setting up, &c................................. 332 permitting to set up, &c....................................... 333 bettin at............333 who deemed keeper of.........................334 warrant to seize, when. to issue......................334 warrant agaflinst keeper, when to issue...................334 to be destroyed............................335 GAMIING H-ouse, setting up or keeping.....................333 letting, house fo r.............I...............333 who deemed keeper of......................... 334 warrant against keeper, whene to issue...................334 GAMING, at f-aro, roulette, &C.....................3 333 onl Sund-ay........................... 336 GIRDLING, ornamental and fruit trees................... 304 GooDs and Chattels, burning with intent to defraud insurer...........295 GRAIN, burning of...........................295 GRAND Larceny, definition and punishment..................299 in connection with burglary.......................298 GRASS, burning of........................... 295"a GRAVE, remnovi-ng dead body from.....................3302 opening to remove dead body...................... 3 32 GRnIST Mill, bunning, of.............295 GROCERY, keeping open on Sunday.....................336 GUIDEi Board, destroyTing, &c....................... 305"' HOG Stealingl, grand larceny......................I..299 HOMAICIDE, justifiable and excusable...................287, 288 HOmRSE Ruacing, on public road........................337~ ~~~~1112 ~INDEX. CRIMES AND PUNISHMENTS, &c., continued. PAGE HORSE Stealing, grand larceny............................... 9 HOUSE Breaking, in day or night....2........................ 96 HOUSE Burning.294....................................... 2 IMPRISONMENT, where conviction of two or more offences, how awarded.35 for life, when*...........3.4.. 2............. in penitentiary, not to be less than one year, in any case......342 in penitentiary awarded, no fine to be imposed..... 342.......... in county jail not to exceed twelve months, when.................... 34 in penitentiary, sentence of, suspends civil rights of convict.....44 for life works civil death..... 44............................ IMPREssION, Of seals, forgery..... 306.. INCEST, how punished.....................................31 INCOMPETENCY, to hold office...... 37........... as voe................ O.37 removed by pardon of the governor.....44.......... INDICTMENT..................................... 31 INFAMOUS Crime, definition of the term..... 34............. INTENT, to defraud, cheat or injure..... 346...................... breaking or aiding or attempting -......320............. JAILOR refusing to receive prisoner........................... 321 JURISDICTION of district court......35....... JUo, bribin or receiving bribes.............3. promising to give verdict................................. receivin papers, evidence, &c..... 16..................... attempting- to influence, improperly..................... 316 improper conduct in. selection of...................... 316 KEEPER, of garhing house, brothel, &c., who deemed.............. 3033 when warrant to issue against....................... 334: officer may break, openi doors........................ 334O KIDNAPPING, defined; punishment of.................... 2903 where to be tried............................ 293 KILLING, when murder........................... 287 when justifiable, when excusable.................... 287, 283 when manslaugh1ter........................... 288 animal, for carcass or skin......................... 299 cattle,2 maliciously............................. 299 LADAKremoving, defacing, &c...................... 304 LARCENy, grand, definition, punishment.................... 299 when committed with burglary.......................298 petit, definition and punishment...................... 299 LEASE Of tenei ent used as gaming house, brothel, &c., void........... 333 LETTERS, sending, threatening..................... 298 sealed, openingy without -authority.................... 336 publishing contents of.......................... 337 exception as to certain cases........................ 337 LEWDNESS, gross, punishment of....................... 331 LICENSE, fogr f..301 LODGER, embezzlement or stealing by..................301.. MAORINERY,brnnof... 29 INDEX. 1113 RIMES AND PUNISHMENTS, &., continuec. PAGE MACHINERY, maliciously destroying or injuring............................. 303 MAIMING, cases of enumerated...................................... 292 by neligence of another..................................... 292 cattle, malicious................................... 304, 330 MALICIOUS Mischief.......................3................04 ANSLAUGTER, in first degree...................................... 288 i second degree...................................... 288 in third degree.................................. 289 in fourth degree...................................... 290 punishment of...................................... 290 assault with intent to commit..................................... 292 MAUFATORY, burnin of.................................... 295 MAnR........s.. and Brands, altering, larceny.................. 299 MARRIAGE, compelling women.to.........;.............................. 291 bigamy punished..................................... 330 cases excepted fro punishment............................ 330 without this territory, when bigam................................. 330 of single person to married.................................... 331 incestuous, punishment...................................... 391 solemnizing certain, penalty..................................... 332 MAYHEM, cases of enumerated..................................... 292 by negligence of another...................................... 292 of cattle......................................................... 304 MERCANDIZE burning, to defraud insurer................................ 295 MITLE-STONE, destroying, removing, &c.................... 305 MILL-DAM, destroying, &c....3.....................'04I MISDEMiEANOR, general provision as to punishment of.............. 305 compounding or concealing........................ 316 definition of the term........I.................. 304 5' MONUMENTS, to designate boundary of land, removing............... 304MURDER, in first degree.......................... 287 in second degree...........................I..287 MUTTILATION of acts and bills deemed a felony................. 725 NATURE, crime against, punishment...................... 301 NAME, affixing pretended, forgery........I.............. 311 using own, pretending it is another's................... 311 NOTE, forgery of........................... 3)0 7 NuRSERY, burning of............................ 2905 OrFFENCE, second punishment of....................... 341 conviction of; where convicted of the like in another State........... 342 conviction of two or more, punishment.............I...... 34 2 definition of the term........................... 445 OFFENCES, aff-ecting' the lives of -individuals................... 287 property................................ 294 records, currency, instruments, or securities, public or private......... 305 the administration of justice........................................... 3.L11 4 by persons in office............................. 322 againsat the public morals and decency, or the public police, or other offences.. 328,compoundingY or concealing.........................316 1014 INDEX. CRIMES AND PUNISHMENTS, &c., contine. PAGE OFFENCES, upon indictment for, not necessary to prove conviction of original offender......................................................... 317 offender.~~~~~~~~~~~~317 conviction of two or more, punishment.................................342 OFFICER, burning building in which papers kept...........................294 having custody of records, &c., destroying, &c...........................300 embezzlement by......................................... 300 forging seal of.........306............................................ guilty of improper conduct in selecting jurors.................316 obstructing or resisting............................................... 317 assaulting, beating, wounding................................... 317 suffbring instruments to go into jail....................................321 suffering prisoner to escape................... 321 refilsing to execute process.......................................... 321 bribery of......3243 bribery of'...................................................... 328 oppression, partiality, &c., by......................................... 326 fraud by, in office................................................... 324 exturtion by...................................................... 326 misdemeanors not provided for........................................327 may break open doors, &c......................... 334 OFFICE. burning of..........294 OFIE bunngo7............................................... public, forging seal of.................... 306 forfeiture, when................37.................................... bribing to procure................................................... 32 giving as bribe, to procure election..................................... 324 selling............................................................ 325 selling..~~~~~~~~~~~~~325 assumption of, unlawfully............................................. 327 ORCHAnR, burning of................................................ 295 Oanma, for pay7ment of money, issued by territory, forgery of......3.0 OnDER b, forgeryrgfe.........of.......305 on bank, forg-ery of.................................................. 30 of court or officer, forgery of..........................................306 PAPER Mlill, burning of............................295 PARDON, by governor, effect of.......................................... 344 PASSING counterfeit money.........................3 07 PlNITENTIARY, escaping from, or aiding escape from......................... 320 PERJURttY, definition and punishment.................................... 314 subornation of..................................................... 314 attempting to procure................................................ 314 what sufficient in indictment for...............................314 PERSON, definition of the term........................................... 346 PERSONAL Property, definition......................................... 345 PETIT Larceny, definition and punishment.....................2........... 299 PHYSICIAN, prescribing, while intoxicated, so as to produce death, guilty of manslaughter........................................................ 290 administering drug to produce abortion................................. 293 PLEADING, forgery of.......................................... o309 POISON, administering with intent to kill.................................. 292 putting in spring, well, &c............................................ 292 admrinistering to cattle......................................... 292 exposing to cattle, &c............................................. 303 INDEX. 1015 CRIMES AND PUNISHMENTS, &c., contihned. PAGE POIsO, selling to ior..................................... 336 exception of phsician...................................... 336 PORTER House, keeping open on d.................. 336 PREGNANT Wom, administering medicine to, to produce abortion.......... 293 PRESS, for counterfeiting &c..................................... 312 PINCIPAL, in second degree in felony.................................... 341 PRISON, breakin, punishment.................................... 320 ~attempt at.................................... 321 PRSONE, rescue of.................................... 318 aiding to escape...................................... 319 escapin, punishment..................................... 321 conniving at or sufferi..................................... 321 escapig............................ may a retaken........ 322 Z-)~~~~~~~~~~~~~~~2 PROBATE Of ILL, for certificate.................................... 306 PRocESS of Court, &c., forgery of......................306 officer refusing to execute..................................... 321 PROUCE severi the soil.............................................. 300.....,o,....................... o..o, 346 PROPERTY, d finition of the term................................... 346 Pussic Acid, selling without being marked...................336 exception of physician...................................4... 306 PUBLbC Buildings, burning of........................................ 294 PUIC Records, burning building...................................... 294 stealing or embezzling..300 detryn......c......3..................... 305 RPEBLI def hin, pnishmen f............................ 335 assault with intent to commit......................2 9 2 REAL Estate, definitionI of the termi.....................346 REAL Property, definition of the term....................346 RECEIVING Property, stolen or embezzled..................3U02 in indictment for, conviction of principal need not be averred.........302 counterfeit money..............I.....I.......310 any forged instrument of writing,.....................31 00 ROrOGN-\IZA-NOE, personation of another in making............... 31I 3 RECORD, of will or deed,7 forging1 certificate of.................. 3ID05 of court, forging seal of.........................3800 of will, conveyance, &c., falIsifying......................306. RiE CoR DS, public, burning building in which kept..2...........99 5 of courts, stealing or embezzling..300 REFEREE, bribing or receiving bribe.....................315'RELsrn1OUS Meeting, disturbance of.....................335 RESCUE Of offenders. I........................318 RETURNT, -falsifying, destroying, &c...........I........... 306 ROBBERY, assault, with intent to commit...................292 degrees and punishment of........................ 298 ROILING Press, for counterfeiting, having, making, &c............312. 1016 INDEX. CRIMES AND PUNISHMENTS, &c., continued ROULETTE, setting up, keeping, &c..332....... permitting to be set up in house, &c..33.... betting at...........................333 SALE, of counterfeit money...................... 07 SAW-MILL, burning of...................298 SCHOOL-HousE, burning of............... 297 SEAL, of Court, forgery of................306 of corporation, forgery of...........................06 official; of any officer, forgery of.........306 of public office, forgery of................306 of territory, forgery of..................36 SECOND Offence, punishment for...........341 SECOND Trial, for same offence............ 343 SECURITY, public, forgery of.................. 05 SECURITY, false personation, in giving....... 13 SELLING, counterfeit money...............07 offices and deputations................201 SERVANTS, embezzlement by.............. SHERIFF, suffering or conniving at escape...324 refilsing to execute process.............321 SHOP, burning of........................294 SHOOTING, with intent to kill, &c...........292 SIGNATURE, affixing pretended, to notes, &c., of corporation311 affixin- to instrument, purporting to be the act of another.11 Spuerous Bank Note, &C., using as false toen..308 STABLE, burning of...........................295 STACK, of Grain, burning of........................317 STAKEHOLDER, of bet on election, how punished......I.........335 STEALING,.............................299, 302 STEAMBOATS, negligently, &c., burstingy boiler................289 captain. or engineer of; when guilty of manslaughter...........289, 290 STOREHOUSE, burning, of...........294 STRANDING, boat or vessel, maliciously, to defraud..............303 SUBORNATION Of' Perjury.........................313 what sufficient in indictment for.....................314 SUICIDE, assisting to commit, manslaughter.................288 forfeiture in case of, abolished.......................344 SUNDAY, laboring, or compelling to labor..................335 exemptions in favor o f certain persons...................335 horse-racing, cock-fighting, or gaming...................336 selling, merchandise or keeping grocery..................336 exemptions as to sale of medicines, &c...................336 TAXES, collector unlawfully- exacting...........I.........326 TEARING, will, deed, or other instrument.................. 313 TERRITORIAL Seal, forgery of.................... 306 TERRITORIAL Treasurer, makiny false entries in books of...........309 THREATENING, letters, sent with a view to extortion.............298 attempting to influence voter by.....................327 TICKETS, giving false, to voter at election...................328 printing or circulating fraudulent, at elections............... 32 INDEX. 1017 IMES AND PUNISHMENTS, &C., continued. PAGE TIPPLING-SHOP, keeping open on Sunday................................ 336 TooLS, for counterfeiti ng, makin, havin &c............................... 312 TOLL-BRIDGE, burning of...................................... 295 TREASURY Warrant, of territory, forgery of................................ 305 TREES, fruit, burning of....................................... 295 destroying fruit or ornamental..................... 304 UNMA ED Person marrying husband or wife of another.............. 331 USURPATION Of office..................................... 327 VERDICT, on trial for murder or manslaughter, when to be "not guilty"....... 288 VOTR, receiving bribe..................................... 325 bribig or attempting to bribe..................................... 325 attempting to influence by threats, &c.................................... 327 voting twice at the same election.................................... 327 deceiving by false tickets.................................... 328 WAnREHOUSE, burning of........................................ 294 WARANT, against gambler....................................... 334 officer may break open doors...................................... 334 WARES, burnin wit intent to defraud insurer............................. 295 WILL stealing or embezzling..................................... 300 forgery of........................................ 305 forgery of certificates of probate..................................... 305 tearing, burning and destroying..................................... 313 bribin &C., to absent himself.................................. 315 perjury of how punished....................................... 314 WOMAN,- ravishing...................I............ 291 carnally knowing, when under ten years of age...:...........291 carnal knowledge of; by liquids...................I..291 compelling to marry or be defiled.....................291 taking, with intent to compel, &c.....................291 under eighteen, taking, without consent of parent..............291 pregnant, administering medicine to, to procure abortion...........294: WOOD, pile or raft of, burning, destroying...................304 WOnSHIP, public, burning house of.....................295 disturbance of..............3...............035 WOUNDING cattle, maliciously...........3........... 36 officer.................................317 WRITING, what to be deemed, in forgery...................311 WRITS and Process, forgery of.......................309 CRIMES, CERTAIN. Ch. 34-. TREASON, penalty for, death........................346 misprision of; what, and how punished..................346 PUNISIHMNET for joining treasonable association................347 for raising hostile flag, wearing cockade, &c................347 offender may be punished though act committed outside the State.......347 DAMAGES, from opening- roads. See Roads. boats liable for............................112 for refusal to accept bill of exchange...................114: caused by mobs, cities responsible for...................467 actions for, may be broughit, as in other cases.467.... 1018 INDEX. DAMAGES, continued. PAGE for destruction of crops.......................... 598 See Fences. See Enclosures. sustained by the location of certain roads. 799 may be recovered where death is caused by the wrongful act, nle or default of an other......................... who may bring such action............. DAVIS County, taxes for 1861, legalized.......101 DEAF and Dumb, institutions for the support of to be established by the tate 62 appropriation for the education of.........95 DEATHI caused by wrongful act, &c., damages for....80 DEBTS may be contracted by the State, when.. the law for their contraction shall provide tax for their payment6 no other shall be contracted except by vote of the people.65 may be contracted to repel invasion or suppress insurrection...... 66 liability of votes for.10.................... DEED on tax sales. Ch. 198.............87....7 on vacation of highways.........i....... term how applied....................837 See Conveyances. See Codle of Civil Proedure. of Quit Cl im of improvements valid. Ch. 39. of Trust must be foreclosed as a mortgagee.. 722 DEEDS, an act authorizing the transcribing of, for Dickinson county. h. 7. DEFENCE against notes, bonds, &c............113 DELINQUJENT taxes, levy mjist be made to make up..............730 DELIVERY of personal property, when order to be made for...........23,3 DEPOSITIONS,2 county clerks authorized to take......79 commissioners may be appointed to take, in other States.............. 34-9 See C~ocle of Civil Procedure. See Code of Criminal Procedure. DEPU TIES shall take oath of office......................433 DESCENTS AND DISTRIBUTIONS. Oh. 80. ADMEASUREMENT Of Wife's portion,_ by referees, when may he made......469, 470 ADVANCEMENT, effect of.........................471 CH'ILDREN, property shall descend to, how................... 470 illegitimate, how shalI inherit......................471 of I al -blood, how shall inherit.....................471 CONFIRMATION of re,;ort of referees shall be binding after thirty days......470 COUnT, may appoint referees........................469 may dischar e same,, when.........................470 CREDITORS, rights of, not to be prejudiced by manner of setting off wife's portion 469 DESCENT, law governing....................... 47-0 rules governing....I.........................468 EsCHEAT to the State, whe.n property shall.................471 FATHER, when shall inherit whole estate...........I........470 representation of...........................470 HUSBAND of deceased wife, rules governing his rights.............471 HOMESTEAD to be included in wife's portion.................469 MARRIAGE, what presumptive evidence of..................469 PARTiAL Distribution, when to be made,..........I....... 469 INDEX. 1019 DESCENS AND DISTRIBUTIONS continued. PAGE PORTIO, what to consist..................................... 469 how to be setoff.469........................................ 469 PERSONAL Property, how to be distributed................................ 469 PROPERTY in kind, when shall be distributed.............................. 469 REAL property, how distributed..................................... 469 REFEREES, of their appointment and duties................................ 469 REPORT of referees when shll be made................................... 470 court may confirm or set a......................................... 470 REPRESENTATION, rules relatin to...................................... 470 SAES, when shall be paid...................................... 469 SPECIFIC distribution, when to e made.................................. 469 SUV O, when may be emp....................................... 470 WIFE; of her portion, and manner of setting off the same................... 469 her portion not to be affected by will................................ 470 when whole estate shall go...................................... 470 when toihri......................................... 471 WILL, not to affect wife's rihts...................................... 471 See _Dower. DICKINSON COUNTY location of the seat of justice of. Ch. 58. DISINCORPORATION. See Corporations, Towns and Villages. DISTRIBUTION of property of intestates. See Executors and Admiznistrators. See Dnals at the ose of the present sessibuions. of the DISTRIBUTION of the Laws and Journals at the close of the present session of the Legislature. See, Laws. DISTRICTS' Representative, shall be as many in each county as there are members............................... ) DISTRICTS for Senators and Representatives. Ch. 7. DISTRICTS for County Cc-mnlissioners, each county shall be divided into three. See Cocoeties and Count y Q/ficers. DISTRICT ATTORNEYS. See Attorneys District. DISTRICT COURT may be ordered to. execute judgment or decree of Supreme Court.............................. 451 DISTRICT COURT, proceedings in partition to be had in.............740 DISTRICT COURT to order confinement of convict in penitentiary, when......360 terms of; in the -several judicial districts. Ch. 69. terms, of; in the first judicial district. CIh. 70., terms of; in the third judicial districts. Ch. 71. terms of, in the third and fifth. Ch. 72. records of certain counties to be transferred to others.. Ch. 72. organizations, &c. See Courts of Justice. DIVISION FE.NCES.,See Fences, Division. DIVORCE; by act of Legislature of the Territory of Kansas, a. ground for decree.. 477 DIVORCE AND ALIMONY. Ch. 51. ABSEN CE, willfal, a cause for divorce....................472 ADMISSIONS of parties, to be received in evidence...............472 ADULTERY a cause for divorce.......................472 AFFIDAVIT to be filed on application for change of venue............476 ALIMONY, allowance of; to wife on decree..................474 1020 INDEX. DIVORCE AND ALIMONY, continued. PA during pendency of petition.............................. 47 of petition for a loan...................475 proceedings on such petition...47........ ANSWER of defendant shall be received without oath... 47 APPEAL, none shall be allowed...77......... CAUSES for which divorce and alimony may be granted..72 477 for which alimony alone may be granted.. 47 CHILDREN, legitimacy of, not to be affected bydivorce... 473 court may order disposition of...473........ and where alimony alone is granted...4...75 COERCION, admissions obtained by, to be excluded...474 COHABITATION and repetition of marriage, evidence of that fact.. 47 DECISION, may be rendered at first term after petition filed..473 rendered in another State, effect of......................... 73 DEPOSITIONS, when allowed to be taken... 47 DISTRICT Courts to have jurisdiction of divorce and alimony... 472 DIvoRCE, power to grant, vested in district courts.. 5 to be granted only by district courts......5 See Dower. DOWER, right of, not to be prejudiced by decree for alimony... 474 DRUNKENNESS a cause for divorce......474... ground for injunction...476................ EVIDENCE, what may be received as........................... 474 how to be taken and submitted....476...... FRAUD, a ground for divorce.........................472 a ground for injunction......................... 476 INJUNCTION, when may be granted, to restrain husband from converting property to his own use.................1..........47$ MAIDEN name shall be restored, when...................474MVAINTENANCE and care of children, order for when to be granted........473 NOTICE to defendant, how given......................473 of taking depositions how to be given...................476 PETITION; when should be filed......................473 for what causes..........................472, 475 PROCEEDINGS; how to be conducted................I.....473 in application for divorce........................47$) for alimony alone...........................475 PnOPERTY; to what, wife shall be restored.................474: provsion inrelation to, application for alimony alone............475 proceedings to restrain husband from converting..............476 RECEIVER; when to be appointed.....................476 SERIvCrE Of notice, how to be made...................4373 476 SUMMONS; when, may he sent by mail...................473 TRUSTEES; when to be appointed......................475 VENUE; when may be changed.................... 476 DONIPIIAN COUNTY; action of county board- legalizedl. Ch. 59. DOCKET to be kept by Clerk of Probate Court. See -Eyecutors aNw1 Admzinistrators. DOWER. Ch. 83. Probate Court shall have jurisdiction in..................449 INDEX. 1021 ~~~~~~~~~DOWER, contm~inued. ~PAGA of what, widow shall be endowed..................................... 478 widow may have choice of the benefit of this act or of other acts............ 478 of her share in personal estate when husband dies leaving children.......... 478 when husband shall die without children................................ 478 of her election to take her dower or otherwise......................... 479 right of not to be prejudiced by decree for alimony....................... 474 ABATEMENT Of sum ons in dower shall not be allowed, when................ 482 of action shall not take place by death of either party...................... 485 of action against widow shall not be allowed.............................. 485 ASOLUTEproperty of widow, what....................................... 478 ADMEASUREMENTof dower, proceedings in.................................. 481 ADULTERYmay debar wife from having her jointure or dower................ 480 ALOWANCEshall be paid to widow, when.............................482, 485 APPEALfrom decision may be taken by either party if aggrieved.............. 485 CMMIssIONES; to assign and admeasure dower, when to be appointed........ 481 shall ascertain and set off widows' dower according to judgment of court.... 482 COMPENSATION Of COM issioners, how paid................................ 484 of judges of probate and clerks, such as county commissioners may allow..... 486 CONVEYANCEor deed executed by husband without consent of wife, shall not prejudice wifes.rights under this act.................................... 479 COSTS; party pr.................................... 485 apportioned among all interested, when................................. 483 COUNTY Surveyor shall make such surveys and plats as commissioners may direct.................................................. 482 DAMAGES; demandant ay recover, when.......................... 481 court to impannel jury to assess.....................482 and -to render judgment for damages assessed................482 when there shall be none.........................483 DECLARATION in writing; election shall be made by..............479 DEFENDANTS; when part fail to appear, what.................481 "DESCENTS -and Distributions;,",* widow may have benefit of the law of, if she prefer...............................478 See Descents and Distributions. DIVORCE; of wife's rights when divorced.....................479 DOWER; in lands and leasehold estates, what................478 what wife may take, in lieu of dower in personal estate...........479.how a devise from husband shall affect wife's right of dower.........480 of proceedings to- enforce assignment of..................481 when other parties may petition for assignment of.............483 ELECTION; widow sball have, in relation to dower............479, 480 EXECUTION; when shall issue for damages awarded.............484 CThe Act to Protect the Rights of Married Women, &c., gives the widow at the -death of her husband a right to certain real and personal property therein designated. Ch. 141. The Act relating to Dower, gives the widow certain property therein deeignated, or a choice to take under the act to "1Protect the Rights of Married Women," &c. or under the act "1Relating to Dower.", Chi. 83. The Act for the Relief of Widows, (Chi. 214,) provides, that if the widow fail to elect within six months to take under the pro-visions of the one or the other of the above acts, or under the act "1Concerning Descents and Distributions," (Chi. SO,) she shall be presumed to have elected to take under the "1Act to Protect the Rilghts of Married Women," &c. Ch. 214. 65 ~~~~1022 ~INDEX. DOWER, continuel. PAGE1 EXECUTION; when shall issue for allowance................... 485 GUARDIAN, rights of ward not to be concluded by acts of........484 JOINTURE to bar dower.....................................480 JUDGENT; against husband not to prejudice wife's rights.......479 in proceedings for admeasurement of dower..................... 81 when allowance made in lieu of dower......................482 in action aainst widow for undue admeasurement of dower....48 MANSION; widow to remain in until admeasurement of dower....480 MESNE profits; when widow entitled to judgment for...........486 MINOR not to be concluded by wrongful action of guardian in admeasurement... 483 PERSONAL Estate; share of, widow entitled to.................478 PETITION Of proceedings on, for admeasurement of dower.........481, 483 TRUSTS; to the use of the wife, how to affect her rights of dower.480 WILL; real estate passed by, shall be in lieu of dower..........479 refusal to accept provisions of, may be made within twelve months.479 DRAM-SHOPS AND TAVERNS. Ch. 84. ACTION; when may be brought on bond of person licensed................... 87 liability infor causing intoxication.........................488 who may bring........................................ 488 not necessary to state kinds of liquors sold..................489 BOND required of person licensed............................487 CITIES exempt from operations of this act.....................489 COMPENSATION may be recovered for taking charge of intoxicating person. 488 COUNTY Commissioners to grant licenses......................86 EXEMPTION law not to apply on judgments under this act...... 489. INDICTMENT; persons selling without license, subject to............487 JUSTICEs Of the Peace; jurisdiction of; under this act.............489 LICENSE, City; how procured.......................486 township, how procured........................486 MARRIED woman may bring suits under this act...............488 MINORS;, damages recovered for, to whom to be paid.............488 NUISANCES; places to be abated as, where liquor sold in violation of this act..,.. 488 PENALTY for selling- without license.....................487 for second offense...........................487 for selling on Sunday, election day, or Fourth of July.............487 for getting intoxicated.........................488 for. causing the intoxication of another...................488 SELLING; devices for evading this law, deemed................489 to certain persons, unlawful.......................488 TAX-; amount of, to be paid by person licensed.................486 how paid and appropriated........................486 DRUNKARDS; children of; may be bound apprentices.......90 See Lunatics and Drunklards. DUELING; local jurisdiction.........................241 duelist shall not hold office......................60 DWELLING, -&c.;- exempt from sale on execution. See Exemptions. EARNINGS of wife, her sole property...................... 97.-EJECTMENT. See Code of Civil Procedure. ELECTION of first State Officers, under the constitution, return and canvass of votes............................52, 70 INDEX. 1023 ELECTION S. PAG by the people shall be by ballot................................... 59 by the Legislature. viva voce........................................... 59 general, shall be held annually on the Tuesday succeeding the first Monday in Novw-mber..................................................... 59 qualifications of voters.............................................60 ELECTIONS, an act to regulate, and to prescribe the qualifications of voters, and to prevent illegal voting. Ch. 86. See Election of Township Qficers. ABSENT, if county clerk be, when returns of votes opened, deputy shall discharge duty........................................................... 498 ABSTRACT of votes, county clerk shall make out, how.................. 498 county commissioners shall certify................ 498 BALLOTS, voting to be by.............................................. 491 if two or more be found so folded as to present the appearance of a single ballot, what............................... 495 considered fraudulent, when.......................................... 495 judges of election to preserve, envelop, and deliver to township trustee or city clerk......................................................... 497 penalty if judges receive, from persons not qualified to vote............. 501 BALLOT-BOX, trustee of each township shall be provided..................491 judges of election shall open and turn upside down, in presence of people assembled at polls................................................. 494 BOARD of State Canvassers. The Governor, Secretary of State, Auditor of State, Treasurer of State, and Attorney General, shall be..................... 498 how shall canvass election returns...................................... 499 BooK, Secretary of State shall record abstract of votes in... 499 and certified statement and determination, as made by Board of State Canvassers................................ 500 CANDIDATES, friiends of, may witness canvass of votes...................... 491 for same office, in case of a tie, the commissioners shall determine by lot.. 497 CANVASS of votes, how to be made.................................. 499 CANVASSERS, who to be........................................... 497, 498 CERTIFICATE of Naturalization, when to be produced..... 492 of election, officers elect shall receive................................. 497 county clerk shall make out.................................... 498 of determination, board of State canvassers shall make out............ 499 of election, Secretary of State to make out.................. 500 CHALLENGE of voter, oath to be administered............................... 492 if person challenged refuse to answer fully, vote to be rejected.. 494 form of oath to be tendered to challenged...........................: 494 when judge shall challenge........................................... 494 penalty for false swearing, when challenged............................ 01 CITY, each ward of, to compose election district............................ 490 councilmen to bejudges of election...490 CLERKS, of election, judges may appoint..................................... 490 shall take oath.............................................. 490 shall enter name of elector and number, in poll-books..................... 491 when person's vote received after taking oath, clerk shall write "sworn". 494 shIll attest poll-books........................... 495 compensation of, $2, per day.. 502 1024 NDiIIX: ELECTIONS, continued. CoPY of Abstract of votes, messengers to be sent for, to counties wernone received.............................499:of certified statements, Secretary of State topublish.500 COUNTING of votes to be done by Judges.. 495 COUNTY Clerk, to assist in canvassing votes..., 497 to make out abstract of returns and forward to Secretary of State....49 shall make out certificate of election...... 498 deputy may be appointed, when.e... 498 COUNTY Commissioners, shall canvass votes....497 shall determine who have received greatest number of votes...49 shall certify abstracts of votes...........49 DISTRICT, election, each township shall compose..490 a ballot-box shall be provided for each.... 91 DEPUTY County Clerk, commissioners mayappoint, when...498 ELECTOR, manner of voting...491...... name of-to be written in poll-book........................ 91 residence of, how determined............ 492 may be challenged by other elector.....492 FEES of clerk of election.................50 of sheriffs................. 2 of judges of election.....................502 of special messenger.................... FINE of officer, &c., for neglect of duty, or corrupt conduct.501 to be paid into county treasury.......... FoRM Of oath to be tendered to.person challenged.42. 994,of poll-books and' returns..........I............... 4;95 FRAUDULENT ballot, what to be deemed such.................495 GOVERNOR to issue writs of election to fill vacancies in Legislature........500 ~to fill vacancies in certain offices............ 0G INDICTMENT, prosecutions under. this act shall be by..........I...502 INFORMALITY of officers, will of people not to be defeated by..........497 JUDGES of election, who to be........................490 ~how shall receive votes..............1........491 ~how shall determine residence of voter....................492 when. shall reject -votes.........................494 shall challenge voter, when........r........ 494shall open and empty ballot-boxes in presence of the people..........494 shall permit candidates to be present when receiving and counting votes......494 shall sign poll-books...........................495 shall count votes.495...............Q N~hat. votes shall exclude................................4905 ahall proclaim number of votes polled for each person............ 495.shall seal and direct one poll-book to county clerk............. 497' where shall deposit other poll-books...................497 shall preserve. all ballots........................497 compensation of, $2 per day.......................502 JUSTICE of the Peace and trustee to direct where election to be held, in township... 490 to be. judges of election..........................490 LosT or destroyed, when certificate of naturalization. shall have been, proceedings 492 INDEX. 1025 JLMM~~~~~~E ~~CTIONS, cof~nued. PAGE LOT which jude to convey poll-book to county clerk may be determined by lot 502 election to be determined by, in case of a tie............................. 499 NAMES Of persons voted for to be on ticket............................... 491 of voters to be called out by judge.................................. 492 if ballts contain too reat a number for any office, how to be considered...... 495 ofvoters and candidates, how to be written and counted..................... 495 NOICE of election to be given by sheriff............................... 491 of special elec.......................................... 500 OATH to be taken by officers of election........ 490 by person challenged..................................... 492, 494 ~....by witness. es.......................... 494 may be administered by officers of election to each other.................. 490 penalty if j udes receive vote of person refusing to take oath................ 501 EJ false swearin at elections to be deemed such............501 PLACE. of holdin elections............ 490 POLL- OOKS, names of persons to be entered..491to be signed by judges and clerks..495 ~votes to be entered in.......... 491.................................... 495 forin............................. 495 how to be seaed u and ow to be deposited.. 497 sed..................... 491 POLLS, when to be opene andcloed.49 ECINCTS, county Board shall establish...................................412 UNIMET Of fficer, messenger, or other person for neglect of duty or corrupt ~ conduct.............................. 5.............. 501 for false swearing at election........................ 501 for receiving vote of person not qualified......501.'REMOVAL to another State to forfeit residence in this............492 E~sIDENCE Of voter, how determined... 492 -RETURNS, how to be made.... 497, 500 canvas of; b couny clerk and commissioners........ 497, 501 ~SCRETARY of State, dutty of, on receipt of abstract of votes.499....... when to despatch messenger for abstracts.................499 shall record statements and transm-it certificates of election to persons declared elected...500 shall publish certified statements.....500 sh~all conivenle board, to canvass returns of special elections;...... 501 5HERIFF shall give notice of elections................491, 500 compensation of.......502 fiPEcIAL Election, notice of, to be published ten days.............491 to be ordered by Governor, when and. how.................500 canvass of votes..._.....................501 SJFFRA-GE, who entitled to: every male person over twenty-one years of age, of the followinG ~classes:citizens of the United States; foreigners who have declared their intention to becom e citizenis................. 0 -,Vb-o not entitled to: persons under guardian ship; persons non comnpos rnentis, or insane'; person s convicted of treason or felony; soldiers, seamanD, and marines 600 SiWOaN," the word to be written after name of person challenged......494'Efit of office of State, District and county officers and of Judges of Supreme District -Courts. when to commence.........500 1026 INDEX. ELECTIONS, continued. PAG TERM of office of persons elected or appointed to fill vacancies.. 00 of members of the Legislature, when to commence..501 TESTIMONY Of witnesses, may be taken when voter challeed.494 TICKETS, what shall contain..491............ TIE-VOTE, how determined between candidates..497 TRUSTEES, and Justices of the Peace to be judges of election.490 to designate place of holding election..4...90 shall provide ballot-boxes..41............ VACANCIES to be filled by appo intment by the Governor..500 in office of members of the Legislature to be filled by election..500 elections to fill, how to be held..................... 501 VOTER may be required to take the oath of allegiance. Ch. 85. Votes, for judges of election to be given viva voce..490 how to be received....................491 proceedings, when challenged....................... 92 how to be counted.........................95 how to be returned...................497 where to be deposited, after canvass of..49.. WARDS of cities to compose election districts.490 WITNESSES may be examined as to qualifications of voters. 494 WVRITS of election to fill vacancies to be issued by Governor.500 See Counties and County Oficers. See Constitution. See Towns and llage See Organic Act. See Counties, Organization of New. See?Idians. See Townships and Township qificers. See Criines and Punishments..ELE'J-TION OF TOWNSHIP OFFICERS; AN ACT PROVIDING FOR. Ch. 88. BALLOT containing more than one namne for same office, to be rejected..504. CANVASSERS, county; county commissioners shall he..............5041 when and where shall meet to canvass votes..................504 shall determine who has been elected trustee,' and certify to the same. 504 shall determine who have been elected to other township o-ffices........ 505r> in cases of tie, shall determine by lot, who has been elected..........505. CERTIFIcATE of Election; county clerk shall issue to person elected.......505 Copy of determination t o he filed in office of county clerk...........505 COUNTY Board of Commissioners, shall constitute board of county canvassers... 504 COUNTY Clerk; board of canvassers to meet at office of, to canvass votes.....504: to'issue certificate of election to persons determined. to. be elected......505 JUSTICES of the Peace; two, to he elected in each township annually.......504 LOT; election to be determined by, in case of a tie................ 501 OFFICE-RS; what, to be elected..................... 504: OVERSEER of Roads; ballot containing more than one name for office of; to be rejected................................. 504 RECORDS, of county clerk's office, copy of determination to be filed in...... 504 TIE; in case of election, to be determined by lot............505. VAcANCY,in office of justice of the peace, to be filled by election......... 5051 ELECTIONS, MANNER OF CONTESTING. Ch. 89. AFFIDAVIT; service of notice to be verified by, if not made by officer...... 507' statemuent made by con.testant to beverifie~dby.........,......... 50-a INDEX. 1027 ELECTIONS, MANNER OF CONTESTING, continued. rPAGE AFFIDAVIT; application for postponement of trial to be verified by............ 509 ASSOCIATESwith probate judge, how to be chosen....................... 508, 509 ATTACHMENT; probate judge may carry orders into effect by, after adjournment. 510 BONDto be given by contestants to secure costs............................ 508 BRIBERY; a ground for contesting election................................. 507 CAUSESfor which election for county officers may be contested................ 507 CERTIFICATE of election received by incumbent to be annulled by judgment against him.510......................................... 510 contestant entitled to, if judgment be in his favor......................... 510 CONTESTANT; for State or judicial office, to file notice with Secretary of Senate.. 505 for county office, shall file statement with county clerk.................... 508 to give security for costs..................................... 508 CONTESTOR. See Contestant. Co of notice filed by contestant with Secretary of Senate, to be served upon incumbent.505............................................ 505 of statement and notice for taking depositions to be returned with depositions. 507 of statement to be served with precept upon incumbent.................... 509 COSS of contest, who shall pay..................................... 510 COUNTY Board of Canvassers; contested elections for township officer to be tried before.................................................. 510 COUNTY CLERK; to be Clerk of Court, to try contested county election......... 508 COUNTY Office; election to, for what causes may be contested................ 507 COURT; for trial of contested county elections, how constituted............... 508 trial. may be postponed; terms postponement at discretion of Court.. 509 what powers shall have..........................509 shall direct the attendance of sheriff or constable when necessary.......510 DECISION; manner of taking, when Senate tries a case.............506 DEPOSITIONS may be taken.......................507, 509 what notice to be required.........................509 DISTRICT Attorney shall preside when probate judge is a party.........508 EanoR or mistake, when a ground for contest.................501 EXECUTION may be issued by probate judge.................510 FEES of officers and witnesses to be same as in District Court...........509 of associates............................510 ILLEGAL votes received, a ground for contest.................507 INCUMBENT to nominate an associate.....................508 to be liable for costs...........................510 meaning( Of the term...........................511 INFAMOUS crime of incumbent beore election, ground for contest.........507 JUDGMENT; effect Of........................... 510 MAIL; statement notices and depositions may be transmitted by.........507 NAMES of illegal voters, or of those rejected, to be set forth in statement......509 NOMINATION of associate by incumbent, to be made, within five days.....508, 509 of associates, if not made by contestant or incumbent, probate judge shall appoint..............................509 NoPICE of contest of State or j udicial office, when and where to be filed.....5 05 copy of, bow to be served onl incumbent................505, 50L to be transmitted with depositions to Secretary of State...........507 1028 INDIEX ELECTIONS, MANNER OF CONTESTING, continued. NOTICE; to be issued by probate judge, what to contain, nd ho to be directed...........................9 manner and time of service...................... depositions may be taken on four days notice... 509 POSTPONEMENT of proceedings, how to be mad... 50 PROBATE Judge may issue notices and take depositions in contest for State and judicial offices......................507 to preside in contest for county offices....50 may appoint a clerk when county clerks a party..508 to issue precept......................... 509 shall appoint associates, if parties fail to do so..509 may issue subpoenas for witnesses...50....9 may issue executions..............510 may carry into effect orders by attachment..510 PROCESS; form of, and how and by whom to be served..509 RECORD of proceedings, county clerk shall keep.. 50 REQUISITION to be made by judge for incumbent to nominate an associate. 5 RULES to be observed by Senate in trying contested election..50 SECRETARY of Senate; notice to be filed with..505 shall keep journal of proceedings..50...... SECRETARY of State; copy of statement in contest for State and judicial offices, to be filed with..................... shall deliver the same to presiding officers... 507 SENATE; to try contest for State and judicial offices.............. 50.5 to determine day of trial by resolution................... 500 rules to be observed, and manner of proceeding............... 505 secretary of; shall keep journal of pro;-,eedings................ 500 SERvICE Of notice upon incumbent, when and bow to be made.......505, 509 SHERIFF or Constable; court may direct attendance of............ Sit) STATEMENT of intention to contest election, requisites of; and when to be filed...............................5 05 STYLE and form of process to be same as in District Court....509 SUBPCENAS for witnesses; probate judge may issue...............509 TESTDIONY; pa rties may introduce.....................500 contestor shall introduce his first.................... 500 may be oral or by deposition.......................509 TIME for trial, probate judge to fix.....................509 Tow-~sHiip Officers; contested elections for, how to be tried,...........510 TRANSCaIPT of judgment may be filed in office of District Court.........510 eff-ect of............................... SlO0 TRIAL; proceedings on, in contest for State and judicial offices... I...505 in contest for county offices.............SO......... D0 may be postponed, when...........SO............. 0 for county office sball be held at county seat.................51 WITNESSES; attendance of, may be compelled.5.............07, 5OD fees of; same as in District Court.SO................... 0 may be required to answer touching quatlifications as a voter.........510 ELECTORS, privileged from arrest........................ 60 INDEX. 1029 ELECTORS, continued. PAGIE not entitled to vote out of their respective districts......................... 89 ELWOOD CITY, Act amtending charter of. Ch. 48. ENTICING APPRENTICES, penalty for.................................... 92 ENTRIES OF TOWN SITES. See Tbvn Sites. EQUALIZATION, BOARD OF, object of its creation........................... 511L to consist of Secretary of State, Treasurer and Auditor.................... 511 shall meet on the second Monday of September annually............. 511 shall make abstract of amount and value of real estate of each county........ 511 also of personal property, and real estate and lots in cities and villages....... 511 may increase or diminish the valuation returned.......................... 511 not to reduce the aggregate below that returned by the county clerks........ 511 shall apportion amount of tax among the several counties.................. 511 Secretary of State shall certify apportionment to State Treasurer and to clerk of each county.................................................... 512 State Treasurer shall charge amount to each county...................... 512 EQUALIZATION, COUNTY BOARD OF. See Counties and County Officers. ERROR, plaintiff in, shall execute undertaking................................ 2 34 See Code of Civil Procedur e. supreme court may issue writs of, in criminal cases....................... 449 ESCHEAT to the State, when property shall................................ 471 shall be applied to the school fund..................................... 572 ESTATES. See Execuzttors and Administrators. of lunatics and drunkards. See Lunatics and Drunkards. of deceased partners. See Executors and Administrators. See Partners deceased. ESTATE of inheritance, technical words not necessary to convey................. 354 may be created to commence in futuro................................. 354 trust, how created.................................................. 354 ESTRAYS, money received from, shall be applied to common schools............. 61 EVIDENCE, copies of records and papers of county officers to be...........420, 433 printed statute books of this State to be................................ 107 copies of records, &c., of other States to be............................... 107 certified copies of proceedings before justices of the peace to be............. 108 when instruments of conveyance allowed as.................I............ 356 See Code of Cvil Procedure. See Code of Criminal Procedure. See Authentication of Statutes, Records, Qfice Papers, fc. EXAMINATIONS in criminal cases. See Code of Criminal Procedlue. EXECUTIVE OFFICERS, how chosen and term of office......................... 52 shall make annual report. See Sate Ogcers. of Kansas Territory. See Organic Act. EXECUTIONS against boats, when shall issue................................ 1] 2 when shall issue as in other cases, under occupying claimant's act........... 123 shall not issue on judgments against a county............................ 410 nor against school district............................................ 820 city property exempt from........................................... 397 when returned "not satisfied," creditor may garnishee.......... I....... 551 against property, in criminal cases.........6..............26 273 See Code of Civil Procedure. See Code of Criminal.Procedure. See Executors and Administrators. See Liens. See Real Property. See Real Estate, redemption of. 1030 INDEX. PAGE EXECUTORS AND ADMINISTRATORS, Chater 91. ABSTRACT of judgments and demands, how kept.537 ACCOUNT, how made on death, resignation, or surrender of letters.519 of sales, to be made and filed...........526 for interest, when to be made by executor or administrator526 of administration, to be filed with petition for sale of real estate. 50 copy of, exhibited against estate to be served535 ACCOUNTS to be rendered on application for sale of and.531 to be entered and kept by clerk........538 annual settlement of...................538 not made, citation to be issued.........539 alias citation and publication............539 upon final settlement of, proceedings....540 on settlement of, what claims allowed....39 what charges and expenses allowed......539 final settlement of, what debts charged in inventory allowed.541 ACTIONS, by and against executors and administrators524 what shall not be brought by executor or administrator.524 pending at decease, which survive, how considered.3 commenced after decease, how considered53 ADMINISTRATION Of effects of persons sentenced to imprisonment for life. 16, 547 of interest of deceased persons in unincorporated town associations. See Partners deceased. ADMINISTRATOR, of master to bring apprentice before probate court to e bound again...............................94 failing~ to settle after citation, proceedingOS...........I......519 foreig-n, when, to receive estate.....................541 by what authority and when appointed.................512 who shall not be...........................512 who preferred to be.............I............513 penderde lile, or during minority or absence of executor...........513 oath to be taken by, on application for letter's...............513 bond to be given by...........................514 additional security, w~hen required....................517 letters to be delivered to........................514 form of letters............................5 1 5 letters inay be revoked.........................516 may surrender letters.........................518 becoming insane, drunkard, or convicted of felony, proceedings........516 duty, where le-tters a-re revoked or surrendered...............516 representatives of; their duty......................518 proceeding~s -against successor, or remaining- executor or- administrator.....519 de bonis non, when appointed.513................... failing, to settle,,proceedings......................519 actonsby nd gaistwhat may be mnaintained......524 actions, 7 what prohibited......................524 dbodnoactions of account may be maintained by and against.......524 actions pending may be prosecuted or defended by.524 claiming as creditor, proceedings.....................537 INDEX. 1031 EXECUTORS AND ADMINISTRATORS, continued. PAG ADMINISTRATOR, duties of copartnership property.......................... 519 nonresident shall not be...................................... 521 forein, when to receive estate.......................................... 543 shall collect estate.52..................................... 521 shallakeiventoy.....................................i... 521 penalty against, for openinand examining papers and money without witnesses, 522 proceedings by, in case of concealment or embezzlement...........I........ 522 to cause appraisement to be made..................................... 523 to publish notice of administration........................ 523 like notice where there are no known heirs.............................. 523 to collect and receipt for debts..................................... 523 shall sell perishable property..................................... 525 shall sell other personalty to pay debts................................. 525 may assign bonds and notes to pay debts............................... 525 shall give notice of sale of personalty.................................. 525 shall sell personalty where there are no known heirs...................... 425 ay sell personalty at private sale, when............................... 525 hall emplo clerk at public sal...................................... 525 shall i sale bill....................................... 526 shall lease real estate................................................ 526 may procure labor to take care of estate................................ 526 shall account for inteest received..................................... 526 shall render statement on oath, of money on hand........................ 527 maority of, shall join, when...................................... 527 duties with respect to personalty bound by lin... 527 with will annexed, to sell. and convey lands, when...............529 proceedings by, to sell lands to pay debts. I................ 530 may obtain specific performance of contract.................534 judgments surviving against, how considered................. 514 shall keep a list of demands.......................535 may waive notice of demand....536 establish demand...........................537 absenting himself; to appoint agent in writing................538 may object to allowance, when......................538 shall maenie annual settlement.......................538 failing to settle, proceedings........................539 failing to make payment, proceedings...................539 final settlement by, how made....i.................540 liability for waste............................54-5 proceedings on judgment agalinst, for waste..................530 of sheriff, to deliver to his succossor executions not executed..........424 AFFIDAVIT, by applicant for letters........................51 3 by administrator do Lonis nion...................... 514 by,administrator with will annexed.................... 514 on complaint of waste...........I................516 on application for new bond........................517 annexed to aind fi-led with inventory......................520 on complaint of embezzlement.......................522 by appraisers of personalty....................... 523co ~~~1032.~ ~INDEX. EXECUTORS AND ADMINISTRATORS, continued. PAE AFFIDAVIT by clerk of sales................................2 to petition for sale of real estate............................530 by appraisers of real estate...............................32 to petition for specific performance...........................3 to demands against estates, by whom made............... e by agent.................................. ma~y ben maeb gnt.3 by executr or administrator seeking to set aside allowance of demand made during his absence....................................3 on appeals, to be made..................................546 AGENT, to be ppointed by executor, or administrator during his absne. 538 appointment to be in writing and filed......................538 notice to aent of demands shall be notice to executor or administrator538 ALLOWANE, to widow....................................902 of penses of repairs of estate.............................526 of demands against estates.534 against estates................................ to executor or admlinistrator, as compensation...............539 54 for support of minor children............................542 902 APPEAL, in what cases allowed.............................56 when and how taken................................... 46 bond to be filed........................................546 how far a supercedeas....................................47 transcript to be sent to district court....................... 47 proceedings in district court upon.........................54 APPORTIONMENT, of assets, how made.........................539 to undecided claims to be reserved......................53O9 of money required to be refunded..................... 542 APPRAISEMEN'T, of personalty, how made................... 5230 to be signed by appraisers.........................523 to be filed, when and where.......................523 additional, whaen to be made....................... 523 made evidence.......523 fiedi -vction, to be examined by court..................526 of personality bound by lien of execution to be separate.............527 of personalty, not sold..........................528 of real estate, when and how made —,...................532 certificate of to be delivered........................532 notice of to be given............. 778 APPRIE~RSns of personalty, appointment and duties of......I......523 qualification and compensation...................... U523 of real estate, qualifications, &c......................532 AssETs, to be collected by executor or administrator...............524: embezzled or concealed, how recovered...................523 debt due by executor or administrator, shall be........... 524 interest collected, shall be.........................526 residue from sale of real estate, shall be.................. 530 apportionment of, how made....................... 5 3)9 As s ic-N1 E-NT of bonds and notes by executor or administrator.......... 525 ATTACHMENT, against persons refusing to deliver property of estate.. 52 to compel settlement,, when........................ 538 INDEX. 1033 EXECUTORS AND ADMINISTRATORS, contilnued. PAE ATTACHMENT, orders of court may be enforced by......................... 546 ATTORNEY at Law not to be security in bond under this act................. 514 Bo s, to be given by executor and administrator.......................... 513 condition of.514.......................................... 514 by executors and administrators, with will annexed....................... 514 by administrators de bds non...................................... 514 by administrators pendente..................................... 514 who may and may not be security in................................... 514 o be recorded and..................................... 515 taken in vacation, proceedings..................................... 515 by administrator, during minority or absence of executor.................. 513 separate, when taken.............................................. 521 belonging to estated................................... 525 additional sed,.............................. 517 may be sued on for..................................... 545 on appeals, to be filed...................................... 546 BOOS of deceased to be taken in possession.............................. 521 embezzlement or concealment of how recovered.......................... 522 CHATTELS, of deceased, to be taken in possession........................... 521 embezzlement or concealment of, how recovered......................... 522 CHnILD a pof................................... 542 CITATION, to parties entitled to administer................................ 513 costs of, to be paid by whom.......................................... 519 to compel settlement, when to issue................................... 539 to surviving partner, when to issue...................520 to executor or administra tor to comply with law..............522 alias to be issued and published.....................639 revocation of letters after, wen.............. 539 CLERK, at sales, to be appointed5 25 to keep account of sales........................525 to make affidavit to account.......................525 CLERK, of Probate Court, to grant letters testamentary, &c., in vacation.....512 not to be executor or administrator...................512 not to be security in administration bond.................514 to issue citation to person entitled to administer..............513 to take bond of administrator in vacation.................514 to see that securities are solvent...................514I to record bonds of executors and administrators.515........... to record letters testamentary and of administration.............515 not to deliver unrecorded letters, penalty.................515 may take separate bond where two or more executors,...........52211 to keep abstracts of judgments filed, and demands established against estates 537 to r~ecord settlements of executors and administrators............538 to keep docket of executors and administrators, and the terms when they settle 538 to put up such list in his office..I....................539 to issue execution against executor or administrator............540 to send transcript to district court on appeal................547 Co-EXECUTORS, when not to act......................51.3 COLLECTION of debts, speedy, may be ordered.................527 1034 INDEX. EXECUTORS AND ADMINISTRATORS, continued COMPENSATION, of witnesses to assist executor or administrator.522 of appraisers.........................523 of executor or administrator..................... COMPLATNT, against executor or administrator, how made.516 against securities.....................517 CONCEALMENT of effects, complaint of, and proceedings.522 CONTINUANCE, may be granted...............528 CONTRACTS, for purchase of land, how disposed of529 may be cancelled and land relinquished.. 9 may be completed....................529 for conveyance of land, how enforced......533 with executor or administrator, how enforced.534 CONVEYANCE, of real estate under will, by whom.529 contract for, how enforced.................53 CO-PARTNERSHIP Property, to be inventoried, &c., y executor or administrator.. 519 how disposed of...5................... when to pass to executor or administrator...520 to be applied to pay partnership debts....520 if taken by executor or administrator, additional ond to e given520 COSTS, of citation to settle, by whom paid...519 of allowing demands against estates...5..37 of suit in probate court, by whom paid...537 of process against delinquent, by whom paid......539 CREDIT, on sales of personalty..............525 what shall he given at final settlement.................. 541 CaREDITORS, notice to, to exhibit demands....................523 may apply for sale of real estate......................531 not to be prejudiced by appropriations for support of children.........54-2 honds and notes may be assigned to, in payment of debts...........525 demands of, against estates, how classified................. 534 proceedings, when executors or administrators claim as..............537 demands of; against estates, how liquidated................. 540 of estate of non-resident, regulations touching................543 may suggest a devastavit against executors or administrators, when.......545 may bring action of waste, or suit on bond, when and how........... 545 proceeds of execution founded on such action or suit, how distributed among.. 545 DE BONIS NON, affidavit of applicant for letters of; nature of...........514'bo~nd of administrator, nature of; condition of...............514 letters, when granted...........I..............518 DEBTS and demands due estate, to be collected................524 DEBTS, due by administrator, assets.....................525 due by executor, not discharged by appointment..............524 against estates, classed.......................I..534 limitation against...........................535 against estates, how to be exhibited and established:.............535to be listed by executor or administrator..................535 not allowed without affidavit......................635 notice of; -when and by whom served.................. 536 notice of; may be waived by executor or administrator........... 536 INDEX. 1035 EXECUTORS AND ADMINISTRATORS, continued. PAGE DEBTS, to be eard and determined in a summary way..................... 536 when tried with or without jury..................................... 537 not due at trial, how settled...................................... 537 due to executor or administrator, how established........................ 537 allowed, estate to pay costs...................................... 537 court to determine class...................................... 537 allowance to e endorsed........................................... 537 how and in what order..................................... 537 notice o may e given to agent of executor or administrator during his absence 538 alloance o in such case, how set aside................................ 539 to e credited to executor or administrator, on final settlement.............. 541 DEBTOR, appointed executor, debt not discharged.................... 521: DELINQUET, executor or administrator, proceedings against.................. 519 DEPOSITIONS, in support of demands, may be taken......................... 536 DEPUTY Clerk of Probate Court not to be executor or administrator........... 512 nor security i...................................... 514 DEVASTAVIT, may be suggested, en.................................... 545 proceedings thereupon.5..................................... 545 action for, when, and effect of judgment................................ 545 proceed..................................... 545 bond may be sued on, for........ 545 letters may be revoed, for...................................... 516 DiscHARGEs, may be givenby executor or adminintrator; when to be void..... 527 DIsTRIBUTEE, becoin purchaser, his receipt good.......................... 542 not -appearing, money to be lent out...................542 not appearing within one year, money to be paid into the county treasury.... 543 appearing afterwards, how to ge'L- his money................543 not claiming property within one year, the same to be sold..........543 disposition of proceeds........................54:3 D-IsTRIBUTION, of personal property, how made...............468 of property, in kind, when made...............I.....469 of real property, how made.......................469 of Itersonalty, may be ordered.....................527 not compellable in less than one year...................541 unless legacies p erishable, &c......................541 when not to be made within three years.................541 refunding bond when required......................541 upon final settlement, how made.................... 541 in kind, not practicable, proceedings...................541 sale for purpose of.......................... 541 claims of distributees to be adjusted...................541 distributee not applying, to be notified...................541 distributee purchasing property, his receipt good.542........... apportionment of money required to be refunded..............542 how refunding compelled........................542 distributee not appearing, money to be'Lent out...............542 not appearing in one year, mnoney to be paid into county treasury.......543 receipts for, to be taken and credited to executor or administrator.......543 of the estate of non-residents.................I....543 1036 INDEX. EXECUTORS AND ADMINISTRATORS continued. DOCKET, to be kept by clerk.............5 EFFECTS, concealed or embezzled, how recovered..522 not to be opened or examined without witnesses..522 EMIBEZZLEMENT, complaint of, proceedings..22 EQUITY of Redemption, may be sold....... 9 ESTATES, assistance in taking care of, may be procured... 526 when not to be sold....................525 when to be delivered to widow........... 55 of non-resident decedent, how disposed of.543 EVIDENCE, of debt and title, to be taken in possession.. 21 embezzlement or concealmnent of, how recovered..522 letters testamentary, and of administration to be..515 inventories and appraisements, how far....23 sale bill of personal property............525 in support of demands against estates, regulated.. 536 deed by executor or administrator, shall be..534 EXECUTION, on apportionment to creditors...540 returned unsatisfied, scire facias to issue... 540 against securities......................50 upon judgment for waste...............54... EXECUTORn failing to settle proceedings..... when may bind apprentice.. 93........... foreign, when to receive estate..543........ FAILURE, by executor or administrator, to settle, proceedins..519 FME CO.VERT, not to be executrix or administratrix.. 512 FEME SOLE, mnarrying, letters revoked....................516 FINAL, settlement, when and how made...................54:1 FOREIGN executor or administrator, when to receive estate........... 543 GooDS, of estate, to be taken in possession..................521 HUSBAND, of executrix or administratrix, no authority.............516 IMPRISONMENT, orders may be enforced by..................546 INCAPACITY, of certain. persons to act as executor or administrator....... 51 2 INFANT, appropriation for support of....................54-2 INSANE person not to be executor or administrator...............512 INTEREsT, on debts to estate, assets....................526 when to be paid by executor or administrator...............526 INVENToRIES, to be made and returned...................521 additional, to be filed...........................521 witnesses to assist in making......................522 how -far evidence............................523 to be examined by court.........................526 separate, of personalty bound by lien of execution..............527 of personalty not sold.........................528 to be filed on application for sale of land..................531 of deceased member of copartnership, how made..............519 affidavit annexed to, nature of......................521 of demands against estates, how kept and returned by executor or administrator 535 to be filed when and where.......................521 administrators shall make, of. additional allowance to widows and minor chilrlren...............................902 INDEX. 1037 CUTORS AND ADMINISTRATORS, continued. PAGE JUDGMENT, lien o..................................... 530 to be filed in probate court and classed.................................537 againstscuite....................................... 540 against distributes and legatees, when................................. 540 JUDGMENTs, if lien of several be even, proceeds how applied................... 530 JUDGE of Probate, not to be executor or administrator...................... 521 nottobseuiinbn..................................... 514 JURIsDIcTIONp court in g demands against estates............ 535 LAND, lease of, how authorized...................................... 526 repairs on, when to be...................................... 526 power to sell, by whom executed...................................... 529 contracts for, may be................................... 529 may be relinquished...................................... 529 school, purchased, may be relinquished, when............................ 529 aged, may be redeeme..................................... 529 how.......... 530 sold for payment of debts, when, how.......................... 530 if bound by lieu of judgmenit; fact to be stated.........530 if bound by lien of several jud ents, dates, amount, &c., to be stated....... 530 administrator shall not purchase...................................... 532 to be appraised before sale...................................... 530 private sale of, not to be made for less than three-fourths of appraised value.. 532 ~Bcontracts forced........w.....e 533 deed for, by executor or administrator.................................. 532 of nonresident decedent, how disposed of................................ 543 LEASE of real estate, when made..........................9............. 4 to be for not more than three years................... 94LEGAcIEs, when paid within a year......................541. on payment of, refunding bond to be given................. 541 payment of, how made.........................541 specific first satisfied...........................541 when property to be sold for payment of..;................ 541 specific not required to be refunded.................... 542 LEGATEE, not appearing, money to be loaned................. 542 not,appearing within onie year, money to be paid into county treasury...... 543 appearing afterward, how to get his money................ 543 not claiming legacy within one year, the same to be sold........... 543 disposition of proceeds of sale....................... 543 LETTERS, by whom and where granted................... 512 who incapable of taking......................... 512 who entitled, and in what order..................... 513 testamentary, to whom granted.......................513 with the will annexed and pendente lite..................513 dluring minority or absence of executor... 513. to be recorded and certified....................... 515 delivered before recorded, penalty..................... 515 copies of evidence........................... 515 testamentary, form of........................... 515 of administration, form of........................ 515 of administration, revoked by probate of will............... 5101 66 1038 INDEX. EXECUTORS AND ADMINISTRATORS, continued. LETTERS, testamentary, revoked if will set aside..G de bonis non, when granted.....G....... revoked by marriage of executrix or administratrix... 51 revocation of, for what causes..... 51...... not to be granted to a non-resident......521 surrender of, when, how..... 518.......... notice of grant of..................... 23 may be revoked for failing to settle......539 LIMITATION Of demands against estates.....55 proceedings on part of infants or married women, for setting aside order of cort for specific execution of certain contracts... 53 LISTS to be filed on application for sale of land..530 of demands against estates to be kept....535 of settlements to be made, and put up......... 53 MAINTENANCE of widow and children, allowance for, when... 642 MAJORITY of executors or administrators must join, when... 542 MARRIAGE, of feme sole, executrix or administratrix... 51 MARRIED Woman cannot be executrix or administratrix...512 how long allowed after disability for exhibitin against estates... 535 limitation to proceedings by, to set aside order for specific performance of contract, 533 MINOR, shall not be executor or administrator512 appropriation for support of.............542 MONEY, concealed or embezzled, how recovered.522 to be collected by administrator.........e524 loaned by executor'or administrator, interest to be accounted for....... 525 statement of; when to be made by executo r or administrator.........527 of distributee or legatee not appearing, how disposed of...........528. oesaehow apportioned among creditors.................539 when to be paid into county treasury......I.............543r, how recovered from treasury...................... 543 to be opened and examined in presence of witnesses.............522 if opened and examined without witnesses, penalty for...........522 MORTGAGE, redemption of; when......................529 NON-RESIDENT, not to be executor or administrator..............521 legatee or distributee's share, loaned................... 2 decedent's property, how disposed of.................. 5430 NOTES, may be assigned to pay debts...................525. NOTIcE, of grant of letters........................ 523 to creditors.............................523 when there are no known heirs.....................523 of sales of personal estate........................525 of intention to resign or surrender letters..................518 of application by executor or administrator for order to sell real estate.....531 how published.................I...........531 of sale of real estate to be published; publication in newspapers may be dispensed with, when.............................53ID'2 of petition for specific performance.....................533 of demands against estates, how igiven................~....536 when and by whom served..................... 536 INDEX. 1039 EXECUTORS AND ADMINISTRATORS, continued. PAGE NOTICE, may be waived by executor or administrator............... 536 ma be given to agent of executor or administrator, when................. 538 executor or administrator absent, and no agent, to be filed.................. 538 to distributees, when and how given................................... 541 to refund, when and how given..542 OAT, to be taken by executor and administrator.......................... 514 of money on hand.......................................... 527 to be taen by applicant for letters..................................... 513 of persons offered as securitie..................................... 514 by claimant of demand against estates, or agent.......................... 536 OEn, where made............................................. 512 for seedy collection of debts................................ 527 for suspension of hiring or sale..................................... 528...-........................... 527 for money to be lent......................................... 542 ~~for sal~e of real estate, when made.................................... 54233 for specific performance, when made....................533 of allowance of demand to be entered................................. 535 of payment, when made...................................... 539 of sale, for distribut...................................... 541 PAPES, to be taken inpossess..................................... 521 not to be opened without witness.................................... 522 concealed or embezzled, how rvered................................. 522 PAYMENTd..................................... 537 failure to make, proceedins...................................... 538 PERSONAL Estate, inventory and appraisement of...............521 perishable, to be sold..........................525' to be sold to pay debts..........................525 to be sold when no known heirs......................525 sales of, public. and private........................525 bound by lien of execution, to be inventoried................527 proceeds of, so bound, how applied.....................527 when not to be sold...........................552 security to be given for.........................523 may be reserved and real estate sold, when................531,.may be solc" for distribution.......................541 not claimed by distributee or legatee,. to be sold...............543 of non-resident decedent, how disposed of.................543 PETITION, for sale of real estate............I............530 for specific performance of contract....................533 for samne by executor or administrator...................534 POWER, by will to sell land, execnted by, whom............... 529 of probate court to grant letters...................512, 521 of same over executors and administrators..........516, 526, 531, 539 of same over surviving member of co-partnership...............520to order sale of personal estate..............525, 527, 531,541, 543 in relation to real estate...................v.....529 to order specific performance of contract...................534 in allowing, demands against estates.............534 to make appropriations for support of widow and minor children.......542 1040 INDEX. EXECUTORS AND ADMINISTRATORS, continued POWER, to order estate to be delivered to widow54 in case of disobedience of its orders..54....,REAL Estate, executor or administrator to take charge of..521 in course of administration to be accounted for and delivered up, when, and to whom...........................51 to be leased.......................... 26 repairs on, when ordered by court..52.....6 sale of, under a will, by whom executed.. 52 contracts for purchase of, how carried into effect after decease of contractor.... 529 interest of testator or intestate in,. when and how relinquished.530 when to be sold...................... 52 mortgage on, when redeemed and how....2 equity of redemption of, when ordered to be so..52 petition for sale of, to pay debts, when and by whom filed..530 bound by lien of judgment, fact to be stated in petition for sale of..530 proceeds of sale of, how applied..530........ bound by lien of several judgments, nature of petition for sale of..530 proceeds of sale of, how applied..530....... petition for sale of, by what accompanied.530 sold, and personal estate reserved, when and how..531 order for sale of, when made..531.......... appraised before sale..................532 notice for sale of, what, and how published sale of, where made, and how..532......... private sale of; how conducted.......................53.purchase of; by executor or administrator, how restricted...........532 report of sale of; how made....................I....532 con-tracts of deceased for conveyance of; when and how enforced......533 when sold by order of court, on settlement.................534: when sold to pay debts,. distribution how made......I........541 of non-resident, administration on.....................543, REcEIPTS, may be given by executor or administrator............ 57 void, when..............................527 REFUNDING Bond, when to be given....................54-1 how enforced............................542 R EDEMPTION, when equity of; may be sold.................529 of mortgaged property, when.......................529 RELINQUISHMENT, of lands purchased, when, by whom made.......... 530 REMEDY, for embezzling or concealing effects.................522 RENUN~CIATION, what deemed.......................523. REPAIRS, when to be made........................526 RESIGN,,ATIoN, of lettbrs, when and how made.518............ expenses of; by whom paid.518....................; Rr~vOcATEON, of letters..........................516 SALES, Of perishable personalty.......................525 ol cther personalty, to pay debts.................525 of personalty, when not to be -made...................525 when-there are no known heirs.................525 may be ordered by court.G. 1...................525 INDEX. 1041 XEUTORS AND ADMINISTRATORS, continued. PAoGE SALES, in vacation may be suspended....................................... 528 of real estate under will, by whom..................... 529 of equitable interest, on purchase..................................... 529 of equity of redemption..................................... 529 for payment of debts.............................................. 530 proceeds of first applied to judgment lien.......................... 530 proceeds of application where several judgment liens..................... 530.public, of real estate, when, how....................................... 532 private, not to be less than three-fourths of appraisement........... 532 ~ report of;, to b.e..made...........532 void, if not approved....................................... 532 new, may be -ordered.........................................532 valid, if approved............................................. 532 ALEBill, to be made by clerk of sale and filed............................ 525 filed in vacation, to be examined by court.......................... 526 of property bound by lienof execution, separate......................... 527 SeInEFACIAS, against securities...................................... 540.how directed and served.................................... 540'S ~ ~ ~ ~ ~ ~~ntb............................. 512 ~ECURITIE.. who may and who may not be..5 must be solvent.. 514 insufficient, what proceedings...................................... 517 proceeding by, against co-securiy or principal............................ 517 arged, when and towat extent....57..7 SEQUETATOorders may be en-forced by... 546!SETTLEMENT, where made....................512 to be entered and kept by clerk..... ~.................538 to be made annually by executor or administrator................538 not made, citation to issue.539.....................oz alias citation and publication....... 5 3 9 -failure to make, letters may be revoked....................539 of accounts, how made.........................539 what charges and expenses allowed....539 what disbursements allowed...................I...539 disposition of balance on hand......................539 when made, proceedings till debts arc paid or assets exhausted........540 final, notice of; how publish ed........................540 how conducted..............................540 debts charged in inventory, what to be. credited..............541 upon final, legacies and shares to be paid.................541 SHERIFF, riot to be security in bond.....................514:&ECIFIC execution of contract, where and how obtained............533 how enforced by executor or administrator................534 nature of petition for, and affidavit....................533 order for, when made by court......................533 proceedings by executor -or administrator for................534 appeals on orders for, allowed......................54:6 S URRENI)ER of letters, when ordered and how made..............518 SiunvvoR among executors and administrators, his duties.......519 1042 INDEX. EXECUTORS AND ADMINISTRATORS, continued PAGE SURVIVING Partner, when to manage partnership effects519 bond to be given by...................519 may be required to account.............519 when his name may be used............519 shall exhibit partnership property........519 and surrender same, when..............519 refusing to surrender, penalty...........519 TESTIMONY, as to solvency of securities.....514 on application for sale of real estate......531 WASTE, may be suggested................545 proceedings thereupon.................545 action for, and effect of judgment........545 execution upon judgment................. 45 proceeds of judgment, how applied.......545 bond of executor or administrator, may be sued on for.545 on application for inquiry into costs......545 if willful and fraudulent, applicant to recover double.545 WIDOW, allowance to, in addition to dower..52 when to apply for same...............525 to give security for same...............528 such property not liable for husband's debts525 not deprived of benefit of sections eighty-three and one hundred and fortythree............................. 25 when she may retain personalty..........27 not required to give refunding bond when.............I.........541 rights of in distribution........................541 when estate to be delivered to......................542 WILL, produced, letters revoked......................516 set aside, letters revoked........................516 sales of real estate under, by whom made................5K9 WITNESSES, two appointed to assist in making- inventory...........522 their compensation..........................522 EXEMPTION. An act to exempt certain property from sale on execution, or other process. Ch. 92. AGENT, or attorney, notice of claim of homestead may be made by........548 APPRATSERS may be appointed to appraise homestead.............548 if of opinion that such land exceeds in value $1,000, excess may be sold....548 shall be sworn.............................549 decision of, shall be conclusive between the parties.............549 ATTACHMENT, homestead exempt from...............547 BID to be not less than $1,000......................548 CITY, lot in, not exceeding in valne $1000 exempted.............547 CONTRACTS eniter~ed into prior to the taking effect of this act, as well as those made since, subject to its provisions..................550 COSTS of survey chargeable to execution, when................ 549 to be paid by plaintiff, if property does not exceed in value $ 1,000, otherwise by defendant.............................549 DECISION Of appraisers, conclusive.....................549 DEED, property, how described in.................... 549 INDEX. 1043 EXEMPTIONS, continued. PAGE DWELLING, &C., exempted from sale on execution.......................... 547 to be included in land set apart by appraisers........................... 549 ExcEssd................................... 548 EXECUTION, what property exempt from..............................547, 549 HOMESTEADeighty acres of land exempted as............................. 547 or lot in city, not. exceeding in value $1,000............................. 547 160 acrs exempt accordin to provisions of Sec. 9 of Art. 15 of constitution, which see. LAND, eighty acres exempt as a homestead................................ 548 LEVY, when made, householder, his agent or attorney may notify officer of what ~her ash eta........................................ 548 LITARY equipments, &c., exempt from sale on execution.................. 706 MORTGAGE, exemption shall ot extend to, except when given to secure purchase ~~~money..................................... 542 See onstitutio o Kansas, Section 9 of Article 15. NOTIcE, householder may give to officer making levy, of what he regards as his homestead......................................... 542 OATHapaieshll....................................... 549 OFFICER, when shall name appraiser...................................... 548 when shall sell property levied upon.................................. 549 how shall describe property in deed.................................... 549 PERSONAL property, what, shall not be liable to attachment, execution or sale..*. 549 PURCHASE money, mortgage given to secure payment of, exempted............ 548 SALE of excess over homestead certified by appraisers, proceedings on.......... 549 SURV.EY,, to be made if l-and claimed as a homestead exceeds in value $1,000.. 549 expense of, chargeable on the execution..................549 TAXES, property not exempt from.....................54:9 WAGES Of clerks, laborers, or mechanics, property not exem pt from execution or attachment.for..........550 WIFE, mortgage not valid without signature of...............548 EXEMPTIONS not to apply to judgments under act in relation to dram-shops....489 from taxes, what property subject to...................65 from taxation what property subject to................i65, 874: of school property from taxation.....................395 of military equipments, &C.......................7(1 of a homestead of 160 acres of land................ 69 of city property from execution.....................397 FALSE IMPRISOiNMENT T; limitations on. See Code of Civil Procedure. FEES of printers for legal advertisements...................508 for printing laws............................568 in trials of contested elections......................509 See Crimes cand Punishments. See C1ode of Civil Procedure. FEES OF OFFICERS. Ch. 99. FELONY. See Crimes and Punishments. FENCES, DIVISION. Oh. 97. persons having lands- adjoining shall mak jntpooto f553 disputes concerning value of; how settled.................553 decision to be reduced to writing....................553 liability of persons neglecting to make and maintain his proportion of fence.... 553 1044 INDEX FENCES, DIVISION, continued. of neglect after request in writing... 55.... how division fence may be removed..55.... of damages for removal without notice..55.. of repairs when fence injured by fire, &c.... of refusal to make repairs after notice.....554 freeholders arbitrating may subpoena witnesses.. 554.. freeholders to be sworn................*.X55 entitled to be paid in advance..55......... not to be of kin or interested........................... 5 subject to mechanic's lien. See Liens. FENCES, WIRE; height of, and manner of construction.. 55 such shall be deemed lawful inclosures... 55 See Inclosures. FERRIES, Regulation of. Ch. 98. BOAT, good and suitable shall be kept......G BoND, shall be executed, conditions of......55 CLERK of county to issue license....... 5...5 to approve bond.......................5 may grant licenses in vacation...........55 COUNTY Attorney, when to prosecute on ferryman's bond557 commissioners to grant licenses, when.....55 to fix amount of bond.................55 to fix amount of ferriage.................36 may issue license without tax, when.....55 DAMAGES, liability of ferryman for......................556 for obstruction of ferry.........................557 FERRIAGE, rate of, to be fixed. by commissioners...............556 clerk may fix in vacation........................S56 list of rates of to be posted.........................G FERRY-MAN shall keep boat in good repair, &c..5 56( shall post list of rates.........................55G may be indicted, when.....................556 LICENSE, how to be procured..........................5 55 to be issued by clerk.........................555 may be issued in vacation, when.....................556 may'be revoked, when.........................557.not to be given for ferry within one mile of another.............557 PENALTY, for neglect to keep good boat, &c..................556 for neglecting to post'list of rates.................... 55G for receiving, pay without license.....................556 how recovered.............................557 for neglect of duties........................... 557 for obstruction of ferry-boat........................557 PROSECUTIONS, limitation of........................557'STEAMBOATS, liability of; for obstructing ferries................557 TAX to be paid before license issued......................... 5SSS amount of.............................. SSS may be assessed by clerk in vacation..................556 to be assessed in proportion to time...................556 INDEX. 1045 ~~~~~~~~~~FERRIES, continued., ~PAGE TAX may be remitted, when............................... 557 of ferries having legislative charters..........................557 TREASURER Of ountyd to be paid to.................................. 555 FERRY AND BRIDGE COMPANIES, how may be incorporated." See Corporatilons-Fierries. FIELDS; how shall be inclosed..................................552, 599 See Inclos ure. INES; money received from, shall be applied to common schools................ 61 when imposed in mandamus.......................................227 See code of crinal Procedure. See crimes and Punishments. See Militia. See Stock, Protection of. FIRING WOODS, MARSHES, AND PRAIRIES. AN ACT TO PREVENT. Ch. 101. penalty for fiing willfully woods, marshes and prairies.................... 567 fine and imprisonment................................. 567 one-half of fine to go into school fund, the other half to complainant....... 567 persons firing woods, &c., liable for damages occasioned thereby............ 568 any person may fire his own frm in night time.......................... 568 and fire against fie..................................... 568 sheriff &c., to give information..................................... 568 FORCIBLE ENTRY AND DETA ER. See,hustices of the Peace. FORECLOSURE OF MORTGAGES. See Mortgages. FOREIGNJUDGMENTS. A AcRELATING TO SUITS ON. Ch. 195. not to be hiher evidence than original claim.............................. 850 FOREIGN GUARDIAN for what purpose may be appointed...........579 FORGERY. See Crimnes and Punishments. FRAUD. See Code of Civil Proceduen. FRAUDS AND PERJURIES. AN ACT FOR THE PREVENTION OF. Ch. 102. gifts, &c., made, in trust to use, of persons making, the same declared void....568 gifts, grants, and conveyances of lands, &c,, made or obtained to defraud creditors, &C., are of no effect.......................568 where any loan of goods and chattels shall be pretended to have been made, when to be deemed to be the property of persons having possession. 569.. leases, &C., to be in writing.......................569 actions not to be brought upon verbal agreements, to be performed alter one year...............................569 FUGITIVES FROM JUSTICE from other Territories and States. An Act relative to. Ch. 103. APPREHENSION of persons charged with crime, when warrant to issue for.....570 AssIsTANcE; in arrest of fugitive, sheriffs, &C., shall render..........570 penalties for refusal...........................570 BAIL may be taken, if offence bailable...................571 party shall not be held to beyond the end of the second term of the District Court after arrest...........................571 BON;D rseuo to give........................572 fee bills to be served on sureties in, when.................572 clerk m my institute suit on, for the recovery of costs.5.......... 72 CERI IFICA rE of Executive; expenses to be allowed on............570 COXFPLAINT; when made, prosecutor to give bond..........I.....572 1046 INDEX. FUGITIVES FROM JUSTICE, continued. PA Copy of examination and proceedings to be sent to the Governor571 of indictment need not accompany demand, when..... 571 CRIMsE; in any other State or Territory, person charged with having committed, warrant to issue for arrest................. 70 if person charged, found guilty, what.....571 EXAMINATION of person accused, judge or justice shall proceed to571 copy of, to be sent to Governor..........571 if Governor believes it contains sufficient evidence to warrant the finding an indictment, he shall notify the executive of State wherein crime committed. 571 EXECUTION for costs, when to issue..5..72.... ExECCUTIVE of other State may demand fugitive..570 shall be notified of arrest of fugitive..57....1 EXPENSEs to be paid by Territory on certificate of the Governor. 570 FEES; how collected...................;.572 GOVERNOR shall issue warrant ordering arrest of fugitive.. 571 JAIL; prisoners to be confined in..........570 571 JUDGE or justice may issue warrant and examine prisoner..570 SHERIFF shall arrest.....................571 WARRANT to be issued by the Governor..5..70 may be executed in any part of the Territor..570 judge or justice may issue, when........570 FUND, for the endowment of colleges. See Corporation military; provisions in relation to..708...... FUNDS, SCHOOL AND UNIVERSITY; investment o &. Ch. 104. ASSESSMENT Of land to be taken as the value in loaning funds on mortgages..574 ASSIGNMENTS of evidences of debt arising from these funds, void.........575 BOARD Of Commissioners composed of State Superintendent of Public Instruction, Secretary of State, and Attorney General................. 573 See Commissioners. BONDS of the State funds may be invested in................573 CERTIFICATE of Register of Deeds, to be exhibited by applicant for loan.....I 574 of county clerk, also..........................574 COnsMISSIONERS; for management and investment of funds, who shall be. 573 shall have power to make loans.....................573 may invest in bonds of the State of Kansas................573 may loan to citizens of the State.....................573 shall cause mortgages to be recorded...................574 shall order suits to be brought on failure of payment............575 shaAH not assign or transfer bonds, notes, and mortgages...........575 COMMON Schools; interest of all school funds except university fund shall be invariably appropriated to the support of.................512 CUSTODIAN of books, papers, bonds, &c., pertaining to these funds, Superintendent to be................................575 ESCHEATS; applied to the school fund...................572 FIVE hundred thousand acres granted by Congress, applied to school fund'.~ 572 FUNDS may be loaned to citizens of the State.................573 may be invested in bonds of the State...................573 INTEREST of school funds, to be applied to support of common schools......572 of university fund, to be applied to support of university...........573 INDEX. 1047 FUNDS, SCHOOL AND UNIVERSITY, continued. PAGE INTEREST of State bonds, in which funds invested not to be less than seven per cent. per annum.......................................... 573 to be paid in adva..................................... 573 LOANS Of funds, how to be made........573..................................... 578 MORTAGE may be taken to secure money loaned.......................... 574 to be considered of recod from their date............................... 574 OATH; person applying fr loan, shall make, of abstract of title............... 574 RECEIPT; duplicate shall be given by commissioners for loans refunded........ 574 shall be authority for Reister of Deeds to enter satisfaction................ 574 RECORD of mortae to take effect from the date................... 574 1REPORT; State Superintendent shall make to each regular session of the Legislature.575........................................... 575 SATISFACTION Of mortgages to be made by Register of Deeds, on exhibit of receipt for money refund...................................... 574 SCHOOLFtbe................................... 572 STATEMENT of condition of funds to be kept by commissioners................ 575 STAY of Execution not to be bad on judgments in favor of these funds........ 575 SUPERINTENDENT to be custodian of records and papers belonging to these funds. 575 TITLE papers to be exhibited by applicants for loans........................ 574 UNIvERSITY Fund, perpetual, what shall be................................ 573 VALUE of land to be mortaed how ascertained........................... 574 FURNITURE See Liens. See Counties and County Officers. GAMBLING. See Crimes and Punishmets. GAME, PROTECTION OF. AN ACT TO PROVIDE FOR. Ch. 105. unlawful to kill or trap between first of April and first of September.5....'76 persons guilty of, to be fined, and shall pay cost's of prosecution........576 justices of the peace have jurisdiction in these cases............576 fines to be paid into county treasury for the use of common schools......576 county board may on petition of freeholders, proclaim this act, inoperative in their county..............................576 GARDNER TOWN COMPANY, an act to amend an act of incorporation of. CRAP. 49. GARNISHEE. See Code of Civil Procedure. See Justices of thie Peace. GAS AND W{AT ER COMPANIES, incorporation of. See Corporations. GOVERNMENTS, founded on the authori~'y of the people...........50, 52 GOVERNOR OF~ EANSAs TEaRRIORY, shall approve the laws............40 may veto................................40 GOVERNOR, how chosen. and term of office...................52.may require information from other executive officers...... I......52 may convene the Legislature, when....................52 shall communicate information to the Legislature............. 52 may adjourn the Legislature, when................... 52 may exercise pardoning po wer................52 sh all keep the great seal.........................52 shall sign commissions..........................53 who excluded from holding office of....................53 president of the Senate shall fill vacancy in office of............ 53 the Senate shall appoint trustees of benevolent institutions..........62 shall fill vacancies in ~office of trustees of benevolent institutions........62 to use private seal till seal of State procured.................70 1048 INDEX. GOVERNOR, continued. AE. shall convene first Legislature, &c.......... 2 duties of, concerning the organization of new counties See Countie organiza tion of new. when shall declare county office vacant...434 shall issue warrant for arrest of fugitivefromjustice. Seegitive frromJustice. shall be commander-in-chief of militia....700 general duties of. See State OQfficers. See Code of Criminal Procedure. GRAND JURY AND GRAND JURORS. See Jurors. e oe f riminal P edure. GRASS, burning of.........................29 GREENWOOD COUNTY, ORGANIZATION OF. CHAP. 60. GROG SHOPS. See.Dram Shops. GUARDIANS AND WARDS. CHAP. 106. APPOINTMENT as guardian, who may receive.576 577 APPRAISEMENT, of property of ward must be made..577 may be made on removal of former guardian..578 BOND, must be given by guardian..577....... failure to comply with order of court deemed a breach of..578 CosTs, when to be paid by guardian....... 578 COMPENSATION of guardian to be allowed by court(..579 DEEDS made by guardian must be approved to be valid..578 FATHER, the natural guardian of his minor children. 576 may be appointed guardian of independent property of minor child.. 577 FOREIGN guardian, for what purpose may be appointed..579 GUARDIAN, natural, who so considered..57....6 may appoint another by will.......................576 must be appointed by probate court................. 576 of estate not derived from parents............I..........577 father or mother may be appointed....................577 when minor may choose.........................577 must give bond and take oath......................577 must make and file inventory and appraisement...............577 power of; over person of ward......................577 general duties of.....................I........577 may bind orphan apprentice...................... 90 of their duties relative to the sale of real estate......................... 577 must give special security before execution of sale or mortgage.........578 must make annual accounts on oath....................578may be committed to jail for failure to comply with order..........578 INVENTORY, guardian must.make out within forty dayTsafter appointment.....577 to be filed in probate court................577 JAIL, guardian may be committed to for failure to comply with order of court,... 578 LANDS and money of wards, guardians mnay lease or loan........... 577 MINOR, the father is the natural guardian of.................576 if father dies, the mother is guardian...................576 natural guardian may by will appoint guardian for..............576 otherwise probate court appoints......................576 when may select his own guardian....................577 guardians of' persons of; have same power over them that parents would have, if livingw...........I................. - 577 INDEX. 1049 GUARDIANS AND WARDS, continued. PAGE MINOR, when real property of may be sold or mortgaged.................... 577 nonresident foreign guardian may be appointed of........................ 579 MONEY of minor, guardian may loan..................................... 577 MOTHER, is the natural guardian, if father dies............................. 576 NOTICE Of time, application for sale &c., will be made, shall be served on minor.. 577 OATH, guardians must take....................................... 577 petition for sale must be verifiedy y................................... 577 PETITION, for sale &C., must state what................................ 577 PROBATE Court must appoint a guardian for a minor's independent property..... 576 inventory of minor's property to be filed in office of....................... 577 real property of ward to be sold only under direction of.................... 577 may award costs to prevailing party, when application for sale is resisted..... 578 may require new security........................................... 578 may remove guardian for good cause shown.................................. 578 REAL Property, rules of sale of.......................................... 578 SALE or mortgage of minor's real property, when made...................... 577 guardian must give security first................... 578 court must approve sale or mortgage before same is valid.................. 578 U RDIANS O LUNATICS, &c. ee Lunatics and Drunikards. HABEAS CORPUS an Act regulating proceedings on Writs of. CHAP. 107. AIDIN or assisting in violating the 65th and 66th sections of this Act, a misdemeanor.................................... 5.................. 91 ALLEGATIONS in denial of return, to be on oath............................ 581 APPLICATION for Writ of abeas Corpus to be by petition................... 580 ATTACHMENT, for refusing to obey writ, when to issue.............583 obedience to discharge, may be enforced by................588 BAIL, when to be taken....587 CAUSE of imprisonment, on return a day to be set for hearing..........584 to be tried in a summary way..............I..... 585 if no legal, be shown, prisoner to be discharged...............585 CERTIFICATE of discharge to be given prisoner, when.............587 CHARGES, when required to be paid.........I............581 CLERK of the Court of Record may take recognizance for service to be paid or tendered...............581 COMMITMENT, if no examination shall have accompanied proceedings.......584 COMMITTING Magistrate, when to deliver to officer, examination and proof....584: CONSTRUCTION of this act.592......................0j CORONER., may serve attachments against sheriff...............583 COURT,7 &C., duty of; on failure of officer to return writ.............584: COURT or Magistrate, when and how shall determine cause of imprisonment. 584: CUSTODY of prisoner, between return and judgment............587, 588 DELAYING to issue writ of habeas corpus, penalty for..............590 EVIDENCE, examination, &C., to be read in.................586 EXAMINATION to be returned, if prisoner not discharged or bailed........587 IMPRISONMENT, cause of to be inquired into, when and how...........584 JUDGE Of Supreme or District Court, powers, duties.............580 JUDGE or Justice may take recognizance..................587 JURISDICTIGN in............. 580, 449, 465 LiMIUATION- of the power of courts &1'der this act..............5 86C 1050 INDEX. HABEAS CORPUS, continued. PAE MISDEMEANOR, persons convicted of under this act, how punished.591 NAME of person having prisoner in custody, and nae of prisoner designated on writ, how........................581 OFFICER, to obey and return writ..........582 what he shall state in his return..........52 shall bring up body of prisoner.........583 refusing to obey or return writ, proceedings.583 may be confined in jail.................583 on return of writ, to bring examination, &c.58 may call to his aid the power of the county.583 ORDER of Discharge to be made, when and how.587 how to be enforced...................588 officer not liable for obeying................... 88 of court requiring bail.................587 PARTY discharged, when not to be imprisoned.589 when he may be.....................589 PENALTIES under this act................590 how sued for and recovered.............591 may be recovered by executor or administrator.591 PERSON refusing to return writ may be attached and imprisoned583 PETITION; what facts to be stated in.......580 must be verified by oath...............580 to be accompanied by copy of warrant of commitment, &c580 on presentation of, court or judge to issue writ580 PRECEPT may be issued to bring up prisoner.................583 how to be executed..........................583 PRISONER may deny the facts in the petition and file allegation.........584: may be discharged by court or magistrate, when..............585 of war, soldiers of the United States, felons, &C., not to be discharged.....58 5 in what cases discharged, if in custody on process.............585 on indictment, cannot be discharged but may be bailed............586 when may be bailed or recommitted...................5 86C when to be discharged or remanded according to circumstances......586, 58 7 certificate of discharge to be given to...................587 if held to answer for bailable offence, proceedings..............587 recognizance of; by whom taken.....................587 custody of, between return and judgment...............587, 588 not to be broughbt up in case of sickness, &c................588 if legally imprisoned, proceedings, in such case...............588 in custody for treason, felony, Src., not to be discharged...........585 warrant may issue to bring before court, when...............588 person having in custody to be brought before court, when..........589 may be removed out of county, when...................590 obtaining writ of habeas corpus, proceedings................590 shall not be discharged on second writ..................590 penalty for refusing a copy of process to.................590 penalty for concealing, to avoid writ...................590 penalty for arresting1 for same cause, after discharge.............591 PROBATE Court shall have jurisdiction.................465, 580 INDEX. 1051 ~HABEAS CORPUS, ~~c~~ontinu~ed~ TPAOE RECOVERIES under this act no bar to an action for damages............... 592 RETURN; proceedings in.4..................................... 584 may be deemed an oath.4.................................... 584 of writ, when and how made.................................... 582 what facts to he stated.5..................................... 582 to be sined when to be verified on oath............................... 582 proceedings, on failure to make..................................... 583 SERVICE of writ, how and by whom made................................ 581 if person conceal himself how made..................................... 582 SUPREME Court may issue writs in any case............................... 449 ~~~~* * ** * * ******shall have original jurisdiction in57 WARRANT; when to issue to brin prisoner before court...............;...... 588 to whom directed.588...................................... 588 shall contain an order for arrest of party who has prisoner in custody, when... 589 how executed and returned...................................... 589 WRITS Of Habeas Corpus; who may prosecute.............................. 579 to issue without delay, when....................... 580 to be in name of State...................................... 580 to be under seal...................................... 581 what to be designated on, how........................................ 581 shall be endorsed "by the habeas corpus act"........................... 581 to be obeyed thouh defective in form................................... 581 persons served with, deemed the persons to whom directed................. 581 how and by whom served and returned................................. 581 when convict may be brought before court on...............273 not to be suspended unlcss.......................50 Supreme Court shall have original jurisdiction in..............57 HARBORING or concealing apprentice, penalty for............92 HEIRS;"1 term not necessary to an estate in fee simple..............354: "HIGHWAY;"1 what the term includes.....................8350'HIGHWAYS. See Roads. HIGHWAYS, STREETS, AND ALLEYS. AN ACT FOR VACATINGT. Ch. 108. persons seeking to have highways, &c., vacated must give notice of application, how...............................593 application and affidavit, proceedings on by county board...........594: order of vacation............................594party applying shall pay costs..............54 in whom title shall vest........................ 9 county clerk shall make deed......................594 proceedings to vacate plats and surveys of out-lots and subdivisions......594 HOG STEALING. See Crimies and Punishments.:HOGS. See Stockc-Swine. fences against. See Fences. See Inclosures. HOMESTEAD EXEMPTION........................6 See _Exe ptions. HOMESTEAD to be included in wifes' portion...................469 ~HOMICIDE. See Grimes and Punishments. HORSES, ETC., PROTECTION OF. See Stockc. HUGHES, ANDREW S., a minor, empowered to donate personal property. Ch. 147. 105211~~~ ~INDEX. PAGE~ HUSBAND of deceased wife, his right of property.................71 HSBAN) AND WIFE; when not to testify.................... See Code of Civil Procedure. See Mlarried Women. See Descents and Distriutions. See Dower. IDIOT. See Lunatics, (~c. ILLEGITIMATE CHILDREN; maintainance of, &c. Ch. 109. lPAIL; proceedings relative to................................597 BON; for maintenance of child, to be executed by person charg'd.595 co...........................598............... COMPLAINT of bastardy, proceedings on........................595 DECOR of poor-houses may bring suit when illegitimate child becomes a.pauper...............5........................ DOCKET Of ust;ce; agreement for maintenance to be entered upon.9 EXAINATIO of person accused, proceedings on................595 IMPRISONMENT Of person charged, on failurd to recognize for appearance.596 of person found guilty not to exceed one year.............................. 596 JUaRY; trials to be had by.......596 O be had by................................. JUSTICEs of the Peace; accusations to be examined before.......595 MAINTENANCE of bastard, payment to be made, or security to be given for.. 59, 596 PAUPER; when child becomes such, director of poor-house may bring suit against accused...5.9............................. 7 RECOGNIZANCE; person charged, to enter into for appearance.......596 when required to be renewed..............................596 after commitment..........................597'ment........................................ S of inheritanc of.471 SUPEaVISORS; when may bring suit against putative father..........595, 597 TRIAL to be by jury...........................596 WARRANT; sshall,be issued by justice on complaint..............595 what it shall authorize....................I.....597 WITNESS; when mother of bastard mai epritdt b596 IMPEACHMENT. If Governor be impeached, his duties shall devolve upon the President of the Senate.......................5 House shall have sole power of......................57 Senate shall try.............................57 all State officers subject, to.......................5 punishment of.............................5 trials of by the SenatLe..........................598 of sessions and adjournments.......................598 powers of board of managers.......................598 compensation of managers......................598 compensation of members and officers....................598 duties of Attorney General....................... 59-8 accounts, how to be authenticated and audited................599 chairman of board of managers may administer oaths,. 5 99 IMPRISONMENT. See Crimes and Punishments. See C1orvicts. See fails. IMPRISONMENT FOR DEBT; prohibited except for fraud........... 61 See Code Civil Procedcure..IMPROVEMENTS O-Nr PUBLIC LANDS. Sale of, valid.............352,value of; how determined under Occupying Claimants Act...........122 INDEX. 1053 PAGE IMPROVEMENTS on land, under $500, exempt from taxation.................. 874 exception, as to city taxes...................................... 874 INLOSURE; how fields shall e inclosed................................. 599 of what height fences shall be...................................... 599 how shall e constructed..................................... 599 of fences against hogs......................................... 600 remedy against owner of animals tresspassing.................I.......... 600 against persons injuring animals..................................... 600 what constitutes legal stone fence...................................... 600 See Fences. NCORPORTlOS. See oporations. See Cemetery Associations. NDENTUR E term does not ecessarily imply seal........................ 837 INDENTURES OF APPRENTICES. See Apprentices. INDEX OF STATUTES..................................... 672 INDXES. See ounties and ounty Qicers. See Register of Deeds. INDIAN TITLES; not to be disturbed by the State of Kansas................. 75 INDIANS; Territory of not included in Territorial or State limits............... 37...................................... 37 rights of, o ob i mpaired.37 affairs of reserved to the United States................................. 37 treaties with, not to e impaired.................................... 47 INDIANS penaltyforsellinliquorto. Chs. 113, 114. courts shall charge grand jury in relation to............................. 601 competent witnesses under indictment for selling liquor.................601, 602 exceptions as to Indians who are citizens..................... 601 not necessary to allege in the indictment the kind of liquors sold...... 601 INDIANS; certain made citizens. Oh. 115. such may sue and he sued in courts of the State..............602 rights of suffrage not conferred.......................602 INDICTMENT. See Code of Criminal Procedure. INFANTS. See M~inors. See Apprentices. See Code of Civil Procedure. See Illegitimate Children. INJUNCTIONS, -may be dissolved in vacation..................454. INJUNOTION; when wife may obtain against husband.............476 See Code of Civil Procedure. INQUEST as to lunacy, how held. Oh. 1039. INQUEST. -See C~ounty and C.ounty Qgficers. See, Coroners. "INSANE PERSON;", meaning of phrase.................. 827 INSANE ASYLUM; to he established by the State............... 62 INSOLVENCY; voluntary assignments with a view to. See As signments. INSURRECTION; punishment of..................... 347' See Treason. INTEREST OF PUBLIC, DEBT; payment of shall he provided for by law creatino..........I....................65~ INTEREST OF MONEY. Oh. 116. creditors allowed ten per cent.- per annum, when no other rate agreed upon.. 603. parties may stipulate for interest at the rate of twenty per cent........603, no banking institution shall charge. a higher rate of interest than that specified in its charter................:............603 payment of usurious interest deemed payment on account of principal.- 603. 67 1054 INDEX. INTEREST, continued. PAGE interest added to principal to evade the provisions of this act, may be recovered by law............................603 bonds, notes, &c., purchased for less than the face, only the sum paid can be recovered..........................604 contract for illegal interest, forfeits interest604 judgments of courts bear interest from their date, at 10 per cent. per annum... 60 INTERNAL IMPROVEMENTS, State shall not be a party to.66 INVASIONS from or into this Territory, persons enaged in, deemed guilty of felony, 604 JAILORS to cause convicts to be employed.....358 See Jails. See Crimes and Punishments. See of Criminal Procedurae. See Convicts. JAIL FEES, on arrest in civil cases............152 JAILS, COUNTY, an act concerning, Ch. 118. county to build jail.................. 05 court to charge grand jury to inspect.....605 sheriff shall be responsible..............605 shall keep separate rooms for the sexes...605 costs of keeping persons in, to be paid by plaintiff.605 county chargeable with costs of criminal...06 sheriff to keep copy of process...........06 prisoners to be safely kept............606 sheriff to deliver to successor..........606 escape of prisoner.....................606 satisfaction of judgment county shall have.606 when jail unsafe............................606 any county jail may be used for keeping fugitives from justice........607 juvenile prisoners to be kept separate...................607 jails, county shall provide.......................409 sheriff shall have custody of.......................429 See, Code of Criminal Procedure. See Crimes and Punishments. See Convicts. See Counties and County Officers. JEWELRY, liens on. See Liens. JOINT CONvENTIONS of the Legislature. See C1onventions. JOINT CONTRAcTs by common law to be construed as joint and several.......351 survivor of.............................. 3 51 See Cjontracts and Promises. JOINT T NANTS, partition of real estate of. See Partition. JUDGES of the supreme and district courts, compensation of............57 of supreme, district, and probate courts, shall have jurisdiction of chambers.. 59 shall not practice law.........................59 may be removed by the legislature...................59 of district court, powers and duties of.............I......454: may order special terms, when.....................459 pro tern., how selected..........................9, 455 Sce C~ourts. See Habeas Oor~pus. JUDGES Or ELECTION. See E lections. See Township an onhp fies,JUDGMENT. See Code of Civil Procedure. e Code of Criminal Procedure. See Dow~er. See, Liens. See Justices of the Peae. INDEX. 1055 PAGE JUDGMENT before a justice of the peace, shall be a lien upon real estate from filing of transcript........................................................ 233 in district court, when supreme court may reverse........................ 233 against garnishee not to be endered, till judgment against defendant........ 236 JUDGMENTS aainst county to be collected by tax...........................410 against school districts to be collected by tax............................ 820 foreign, not to be higher evidence than original claim........... 0......... 850 foreign, suits on, Chapter 195. JUDICIAL power of the State, in what courts vested.......................... 57 districts of Kansas organization..................................... 59 See Courts, -District, terms of. numbered................................... 59 attorney, district, to be elected for each................................. 105 See Attorneys, District. JURIES. See Code of Civil Procedure. See Code of Criminal Procedur e. Soe Justices of the Peace. See urors, Grand and Petit. JURISDICTION, of supreme court, wat shall consist of...................... 449 of district courts.454....................................... 454 ~~~.....of probate courts............ 465 of justices of the peace...................................... 614 JURORS, GAN AND PETIT, selection and summoning of, Ch. 119. list of, to be made............................................... 607 selection..................................... 607 list to contain one name for each one hundred inhabitants....... 607 persons who have served previous year' to be avoided.............608 how drawn................................................ 608 shall serve one year.......................................... 1.___ 608 when new list made, old one destroyed...................608 to be drawn thirty days before court....................608 to be drawn in presence of sheriff and two justices............. 608 adjournment of the drawing...........609 if but two of the officers are in attendance, proceed.................. 600 manner of drawing............................609 minntes kept..........................I....609 new drawing..I............................609,minutes of drawing, signed by clerk and -officers................609, separate list for grand and petit.................... 609 sheriff shall summon jurors six days before court.................610 copies of lists furnished by clerk.....................610 fine for non-attendance..........................610 persons exempt.............................610 when examined, names of.........................611 non-attendance, returned to court.....................611 when jury is not full, proceedings......................611 court may order additional summoned................. 611 order filed with clerk................... 611when, court may order jury drawn.....................611 sheriff shall. summons and make return............... 610 105-66 NDEX. JURORS, GRAND AND PETIT, continued. PAGE jury may be completed from bystanders. jurors to attend unless excused..........612 See Code of Civil Procedure. See Code of Criminal Procedure. JURY, trial by, guaranteed.................. grand, district attorney shall assist. See Jurors. See Code of Civil Procedure. See C(ode of Criminal Procedure. See Jstices of the Peace. coroners, how summoned..............426 to assess damages from opening roads. See Roads. proceedings by, under occupying claimant's act12 JUSTICE, FUGITIVES FROM. See Fagitives from Justice. JUSTICES' COURTS, organization of, and their powers and duties, Ch.120. jurisdiction of justices..............6....1 justices of the peace shall give bond and take oath.. 614 which shall be filed with county clerk....614 JUSTICES OF THE PEAcE shall be elected in each township58 their number may be increased.. 58........ appeals from, sha 1l be to district court.... 58. shall hold office two years...58.......... and township trustee to direct where election to be held... 490 accusations of bastardy to be examined before.. 59 duties of, in relation to strays. See Strays. duties of, in relation to diseased stock at large. e Stockotection of. copies of proceedings by, or by predecessor, evidence.108 transcript of judgment of may be filed in office of the clerk of the district court, 211 certificate of official character must be given by, if acknowledgment be taken out of the State..............355, may act as corone r, when..........................428 when may issue' warrant for removal of'poor persons............. 748 proceedings'before, for removal of persons wrongfully settled on lan-ds of an —.other...............................823, jurisdiction of; under act relating to dram shops..489 under game la....................... I.......577 under the Militia a3t. See Militia. powers of, in regard to unclaimed property. See Property Unclaimed. number of; increased in Marmiton township, Bourbon county, Ch. 127. number of, increased in Blue Rapids and Vermillion townships, Marshall county,. Ch. 12 6. number of; prescribed in Easton township, Leavenworth county, Chapter 125. vacancies in office of; to be filled by election. See Election of Township Qfficers. certain jurisdiction conferred upon, in the city and county of Leavenworth, Oh. 124. See Code of Civil' Procedure. JUSTICES OF THE PEAGE, Jurisdiction of, and Duties of Constables in Civil Cases. Oh. 121. ACT, not to apply to actions and suits pending................653' to take effect on first June, 1.859..................... 6 5 3 ADJOURNMENT..............................627 ARREST, before judgment, in what cases order issues..............617 security by plaintiff............'...... 018' INDEX. 1057 USTICES OF THE PEACE, contied. PAGi ARREST, form of order.................................. 618 how executed... 618 continuancebail and trial........................................ 619 after.ju.dgment, when to issue........... 619 excto of................................ 619 proceedings on.4..................................... 643 APPEALS, allowed generally......................................... 634 not allowed, onjudgments confessed......636 from...jury trial, unlessn, &c............... 631, 636 on jud ent for forcible entry &c..................................... 636 from trials of right of property in attachment or execution................. 636 ~when~ t *ake.............. 634 undertaking on......................... 634, 636..transcript by justice...........*....................... 634 ~~proceedings in court above.......... 635 costs on..................................................... 631, 635 ATTACHMENT, when order may issue.............................. 620 affidavit to obtain............................................. 620 uindcrtaking by plaintiff........ 620....order of, it4...s terms.................620 xhen eutiaon of........................................ 620 e on of.................................. 620 appraisement......................................... 621 ndertaking to deliver................................ 621 liens, &c...... 621 service of summons on defendant............622 perishable property.0.....,.. 622 garnishiee in, proceedings against..............622 J udgment........ 624 restoration of property..............624,laims by third persons........................ 625 priorities.....625 officer's return.. <... 625.discharged by defendant................ 624 interest in real estate, how reached.....625 BAIL. See Arrest. BLANK Process, not to be issued void.,.......................651 BILL of Exceptions, justice may be required to frame...............632 BILL Of Particulars, substituted for pleadings.......... 626 what to state....626 amendments....... 626 CHANG-E of ~Place of Trial, grounds for.............~..626 who shall try........I..................627 papers to be transferred with transcript of proceedingrs.............62'7 costs on.................................627 CJODE Of Civil Procedure, when applicable to justice's courts............648 COMMENCEMENT -of action, by summons...... 616 when commenced.................................616 guardian touit,............................616 1058 INDEX. JUSTICES OF THE PEACE, continued. PAGE COMMENCEMENT of action, requisites, service and return of summons617 appearance of parties..................617 CONSTABLES, tenure of office.............646 oath of office.........................646 undertaking by.....................646 when appointed......................646 justice may appoint for special purpose... justice surety for special constable.......647 duties of............................647 powers of...........................647 duty on arrest of the person.............648 when liable to ten per cent. penalty......648 CONTEMPTS, what and how punished.......51 proceedings to punish.................651 DEPUTE, justice may, to serve summons,....651 DEPOSITIONS, may be taken and used as in Probate629 DISABILITY of justice of the peace, a justice of the same township may actin case of............................ 650 DOCKET, justice to keep..................648 what to contain......................648 entries, when evidence..................69 to be indexed............................... deposit of........................... 50 EXCEPTIONS, on trial...............................632 See, Bill of -Exceptions. EXECUTION, when to issue generally....................642 stay of; how obtainable.........................613 undertaking to be entered on docket and signed by surety...........613 when shall be withdrawn........................613 stay of Execution, how graduated.................... 6 13 form of; when some of joint debtors not served...............643 how debtor relieved from arrest on....................646 constables' liability on.........................643 sale on, advertisement of........................644 how conducted............................ 644 inventory...............................644: order of sale.............................645 delivery of bond............................645 further levy...............................645 return of...............................644: when may be issued on docket of another justice...............650 persons against whom judgment rendered may have stay of execution..... 613 except for breach of justices' bond.....................613 EXISTING Actions not -affected by act.....................653 ExIsTING Suits. See Existing Actionls. FORCIBLE Entry and Detention of Real Property, for wbat causes action may be brought..............................637 proceedings in, not to bar another action................637 notice to quit required.63.7 INDEX. 15 JUSTICES OF THE PEACE, continued. PAGE FORCIBLE Entry, requisites and form of complaint..637............ the issue requisites and service of summons.................637 ee * i ii tl i i t * I i ii i * i * tl it i ** o *1$ 41, * II i I,tl *we continuance......................... 638 trial by justice...........................................638 trial by ju n.......................................638 verdict and judg...............63...8.... appeal, not allowed........................................66......... 6 exceptions............................... 638 writ ution.......................................638 error............................................................... 639 costs..............................................638 index to justices' docket..................................619 JUDGMENT, of dismissal without prejudice.....................33 by default of either party................................ 633 against absent defendant, when and how set aside..633......... on verdict...633.................................o.... 6 on trial byjustice.......................................633 may be remitted......................................... 33 on of defendant I........ 634 to state when defendant is subject to arrest................634 JURISDICTION, as to amount................................614 actions and injuries in which justice has no jurisdiction.......615 JUnORS., feeso of....................632.... 6 See Jury. JURv, when either party may demand...................629 adj ournment............... I.............629 how summoned, impannelled and sworn, and verdict.............629 verdict may be set aside.........................631 new trial...............................631 fees.................................632 JUSTICE of the Peace, jurisdiction....................612, 614 dockets...............................648 NEw Trial, when allowed..................... 631 notice of..............................631 NON-IRESIDENT, must give security for costs.................651 if plaintiff become, must -give security for costs...............652 PURCHASE, of Judgment, justice prohibited from, when on docket in his possession 6053 IREPLEVIN of Property, affidavit of plaintiff..................639 order of delivery, to issue with summons..................640 how executed...........................640, 642 undertaking by plaintiff........................640 trial and judgment........................640, 641 when proceedings removed to Probate Court................640 when suit on plaintiff's undertaking may be commenced...........642 SECURITY for Costs, when to be given....................652 SUMMONS. See Commencemnent oJ Action. SUBP(ENAS. See Witness. STAY of Execution. See Execution. TRIAL. Justice to try action, if no jury be demanded by either party......629 1060 INDEXI. JUSTICES OF THE PEACE, continued. TRIAL, may be without process, if so agreed...629 See Jury. See Arbitrations. of right of property levied on and attached, notice of on claim of third persons 632 proceedings and judgment by justice.....648 WITNEss, subpoena for, how issued........628 and served...........................628 if not examined, costs of attendance, how paid.628 may be produced by warrant...........628 how punished on refusal to testify, &c....629 when liable in damages................629 WRITTEN Instiument, disposition of, when action on.629 discharge by defendant................. 24;. JIUSTICES. DUTIES OF IN CASES OF BREACHES OF THE PEACE. CHAP. 123. APPEALS may be taken, proceedings to obtain...656 when to be taken and when to be returned...656 ASSAULTS and Batteries, not indictable; cognizable before justice.. 654 CLERK of Court, duties of...657............. CONTINUANCE, by justice, what proceedings...657 CosTs, how paid when injured party prosecutes... 656 DEFENDANT, may be committed to jail...6..55 EXECUTION, when to issue...657............. from district court..656 657.................. constable shall return in thirty days...65.. FINES, extent of.......................7 how recovered..........................657 collected by justices, shall be paid to county treasurer within thirty days.... 658 JURISDICTION, Of justices over aifrays, &c..................654.what cases shall not extend to.....................654 JUSTICES of the Peace, to issue warrant, when and in what cases........654 to hear and determine the complaint...................655 to proceed as in criminal cases.....................655 to require recognizance, when......................655 poeedings, before, how regulated.655 PENALTIES, an officer refusing to perform duty................657 PENALTY and Fines, how recovered....................657 PROSECUTOR, name of ijrdptyto be endorsed as............656 RECOGNIZANCE, breach of, to be certified -to district court............655 TRIAL, may be postponed, when.....................655 to beby jury..............................656 WITNESS, to be subpmenaed.......................656 to be recognized, when.........................656 KANSAS VALLEY BANK, an act to amend an act of incorporation of. Ch. 128. issue not to be above two hundred per cent. of capital...........660) denomination of notes.........................660 K[DNAPPING, of'the jurisdiction of that offence. ASee Crimes and Punishments. See Code of Criminal Procedure. "LAND " TERM, includes real estate and real property..............837 application of the term in tax laws...................874 how affected by mechanic's lien. See Liens. LAND, cemetery associations may hold.....................118 INDEX. 1061 PAGE LAND DISTRICT RECORDER, office of abolished, Ch. 171. records of to be transcribed and deposited in the office of Register of Deeds in the proper counties............................................ 77-5 LAND PATENTS, may by recorded by Register of Deeds. Ch. 159. ~........fees for, and effect of; recording.................... 732 copies of to be received in e..................................... 732 LANDLORDS AND TENANTS. C. 131, 132. ALIENEES Of lessors and lessees to have same remedies as principal............ 663 ~~~ATTORNMENT of tenant, conveyance of landlord valid without................. 663 to a stranger shall be....................................... 663 CONTRACT, express, tenancy at will canpot arise without..................... 662 if it specifies time of termination of tenancy, notice to quit not necessary... 662 CONVEYANCE by landlord valid withoat attornment of tenant.................. 663 ESTATES at will may be determined bone month's notice................... 662 in remainder or reversion persons seized of may maintain action for waste or trespass.663........................................... 663 EXECUToRs and administrators to have same power and liabilities as their testators ani itestates....................................... 663 FA tenants of notice to..................................... 355 JOINT Tenant may have action against co-tenant.................. 663 LADLORD conveyance of valid without attornment of tenant................ 663 possession of not affected by attorment of tenant to a stranger............. 663 LIEN upon crop, landlord shall have for rent due.......................... 662 to continue for four months after rent due... 662 how enforced............................662; liability of purchaser of crop under lien..................662 NOTICE, one months' notice may determine an estate at will.........662, 355. of three months, to determine an estate from year to year..........662 to be equal to interval, where tenancy is from one period to anlother.. 662, 355 of ten days, when sufficient...........I........... 662.in what cases none is required......................662 how may be served..........................663 in case of tenants cultivating farms must fix termination on first of April... 355 OCCUPANT without contract liable for rent...................663 RENT, on refusal to. pay when due, tenancy may be determined by ten days' n~otice................................662 payment of; to grantor good against grantee without notice..........663 from lands for life or lives may be recovered as other rents..........663 arrears of; may be recovered after death of person on whose life, estate was dependant..............................663 executors and administrators may recover..................663 occupant without special contract, may recover...............663 from land collected as other debts......................663 landlord shall have lien upon crops for...................662 SERVICE o f notice, manner of........................663 SUB-LESSEES to have same remedies against landlord as against lessor... 663 TE.N'ANCY ait will cannot arise except on express contract.............662 how to be determined......................... 3 5 5 1062 INDEX. LANDLORDS AND TENANTS, continued. PAGE. TENANCY, from year to year, what to be deemed..........................662 how may be determined.......................................... 662 from period to period less than three months, how to be determined.. 662 when notice to determine, unnecessary.................................662 in common, how created........................................... 254 TENANT at will, lease of, determined after ten days' notice on refusal to pay rent 662 if he commit waste, no notice necessary.................................662 payment of rent by, to grantor good before notice of sale................ 663 TENANTS, joint in common, in coparcenary, contribution by............... 663 at will, who to be deemed........................ 354 occupying and cultivating farms, time of notice to quit................... 355 TRESPASS, action for, may be maintained by persons seized of estates in remainder, or in reversion................................................ 663 WASTE, if tenant at will commit, not entitled to notice to quit................662 action for may be maintained by remainder man or reversion...............663 LANDLORD may avail himself of tenant's possession, in actions respecting real property....... 223 property.....................................................................................23 LANDS of the United States, disposal of not to be interfered with by the State......84 act Df admission..................................................... 77 not to be taxed by the State..........................................84 constitutional ordinances relative to..................................... 48 granted by the Congress for schools.................................... 76 for university.................................................. 76 for public buildings........................... 77 salt springs adjoining, granted.........................................77 five per centum of sales of public lands granted............................ 77 granted by the United States for schools and those granted under act of 1841, shall be a perpetual school fund.....................................61 school, shall not be sold unless authorized by vote of the people............61 who to be deemed seized of........................................... 354 See Matrried Women. See Recal Estate. See Real Property. of non-residents, not to be taxed higher than those of residents.............. 48 LARCENY. See Grimes and Punish7ments. LAW, COMMON, and certain British Statutes in force in this State.............. 678 punishments by virtue of, limited.......................... 678 * LAWS time of taking effect............................................... 6 sections amended shall be repealed.................................... 56 when shall go into force.............................................. 56: State Laws of Kansas, for 1861, published by authority, has the following certificates, at the close of the volume. No certificate of the publication of laws, for 1862, was ever furnished for this volume. PRINTER. SECRETARY OF STATE'S OFFICE, [ TOPEKA, August 20, 1861. I hereby certify that the several Acts contained in the foregoing chapters, were published as follows, in the Topeka State Record, by authority of the Legislature: Act contained in [chapter —, not in this volume,] was published June 15,1861. Act contained in [chapter -, not in this volume,] wvas published Mlay 11, 1861. Act INDEX. 1063 LAWS, continued PAGE shall ot be revived or amended unless................................ 56 of the Territory, to remain in force, on change from Territorial to State government......................................................... 70 of other States and governments, ow proved.................. I.......... 185 now in force, publication, and distribution of....................... 672 Secretary of State shall furnish printer, what...................... 664 what laws shall not be furnished...................................... 000 index, marginal notes and references to be made.......................... 672 certificate to e attached by the Secretary of State................ 673 listotle................................... 673 how to be distributed.....-674.......................................... 674 printing of in newspapers...................................... 567 Leavenworth Couny, criminal court of................................ 349 LEGAL advertisements,' fees for printing...................................... 566 where shall be printe..................................... 567 LEGISLATIVE power of Kansas. See Constitution. LEGISLATURE shall not grant special privileges............................. 50 when may be convened by Governor................... 52 when be adjourned by Governor..................................... 52 sessions of shall commence on the first Tuesday of January................ 56 apportionment of members of.......................................... 85 appropriation for pay of members for 1862.............................96, 100 how shall meet in joint co'ventin.5 n..................................... 353 LABILITY, of buildings rented or leased for dram-shops...................... 489 LIBEL, in'actions for, the truth rpay be given in evidence............. 51 of security required against the repetition of.................269 See Code of Civil Procecdu~e. LIBRARIAN, STATE, duties of. A'ee State Oincers. LIBRARY, STATE, appropriation of $2,000 for the increase of............95 LIO'ENSES, county board may grant......................412 See Ferries. See Dram-shops. LIEN, for services, attorney has, on papers and money of client...........104 agyainst boats, for debts, damages or injuries.....I.........11.... I of judgment of justice of the peace to take effect from date of filing of transcript 233 See code of Civil Procedure. county shall have on strays, for halIf their value...............848 upon homestead if given on consent of both husband and wife, not effected by exemption provisions........................69 taxe's due on lands purchased at tax sales shall be..............868 contained in [chapter —, not in thie volume] was published June 24, 1801. Act coistainedi in [chapter 205, page 892, in this volume,] was published May 4, 1861. JOHN W. ROBINSON, Secretary of State. SECRETAlOY OF STA&TETS OFFICE, TorEscA, September 2, 1861. I hereby certify, in accordance with the proveisioe of a concurrent resolustion, adopted by the late Legislature, tisat'all the Laows contained in this volume, not tatking effect from their passage, or by publication in the Topeka. State Record, wvill take, effect and be in force, from and after the above date. JOHN WF. ROBINSON, Secretary of Slate. ~~~~1064 ~INDEX. LIENS, MECHANICS. Ch. 137. PAGE lACTIONS, when may bebrought on mechanic's lien..............681 upon the contract, saved.................................68, 687 ANSWERwhin what time shall be made.....................681 may make other parties defendants.........................682 ASSIGNMENT Of liens to be valid.............................682 ARTICLESor materials delivered to mechanics, &c., for the purpose of constructin, completion or repairs, he shall have lien on for services rendered and materials furnished...................................678 ARTISANshall have lien for labor, skill, and materials in construction, completion or repairs ofjewelry, clothing, &c....................... 678 ATTAcHMENTof personal property; when personal service shall not be had, proceedins shall be as in suits in...........................679 BRIDGES subject to liens...................................686 BUILDINGS, &C., subject to liens...................6............680 to include fixtures and permanent machinery and engines..6...85 after proceeds of, exhausted, execution may issue for balance due.. 687 CARE, bailee or keeper of personal property may have lien for.. 68.. CHANcERYpowers conferred upon the courts in these cases..68..... to be exercised in substituting parties......................683 CHARGES, possession of personal property made, required, &c., may be retained till they shall be paid.....................................678 proceedings for the recovery of....679 for the recovery of-.............................. CLOTHING lien may be had for labor, &c., bestowed on..678....... COMMENCEMNT of action, what shall be deemed............... 681 COMPENSATION, contractor entitled to, if owner fatil to comply...........682 CONTRACT, liability commences from the making of...............680 of sub-contracts............................684 COSTS, subject to the, order of the court....................687 CnR oPf tenant, landlord may have lien on...................664 DAMAGES, contractor may have suit for...................687 DEFENDANTS, who may be made...................681, 682 DISTRIBUTION of proceeds of judgments on, how to be made........682, 683 EXECUTION against building, &c., what shall state...............684 may issue for balance aft~er proceeds of building exhausted..........687 against personal property, how shall issue.................679 EXPENSES in enforcement of liens upon, personal property to be included in assessment of damages..........................680 FEED, Keepingo, &c., lien to be. had for...................680 FEES Of register of deeds, for services under this act..............688 FENCES, liens to extend to........................686 FIXTURESI provisions of this act to extend to................685 FURNITURIE, construction of; &c., lien may be had for..........678 INcUMBRANcES, persons who procure work to be done, to be deemed owners notwithstanding...........................683 not-to porejudice rights of builder.....................683 validity of, how may be contested....................686 ISSUES, how to be formed......................I 683 may be tried. separately between parties prepared.............. 686 JEWELRY, repair, &c., lien shall be had for................678, 680 INDEX. 16 LIENS, MECHANICS, continued. PAGE JUDGMENT against building, &c., to state how proceeds to be distributed.682 in favor of contractor, shall state what......................684 in favor of sub-contractor, to be preferred to that of contractor..684 ow to be rendered in enforcement of liens upon personal property.679 ow enforced...........................................679 KEEPING of animals, lien may be had for......................689 LAo, skill, care and expenses, lien shall be had for...........678, 680 LAND may be divided, when................................682 incumbrance upon shall not operate upon buildings...........683 lien upon, includes buildings, fixtures, and machinery.........685 LANDLORD may have lien on crop of tenant....................664 LIAILITY commences at date of contract.......... 6............. of owner to sub-contractor, commences upon notice...........685 LIEN on building, &c., who may have........................680 to what it shall extend..................................83 may beassigned.........................................82 shall have effect of mortgage.............................86 within what time must be filed...........................686 mechanic, artisan or tradesman may have, for labor, care, skill, materials and expenses in constructing, completing and repairing furniture, jewelry, clothing 678 LIVERY stable keepers may have upon stock fed or stalled by them.680, 689 landlord may have upon crop of tenant.....................664 See Landlords and Tenants. LIMITATION of proceedings under this act.....................686 MACHINERY included with land subject to lien...............685 MATERIAL furnished in erection of buildings, lien may be for..........687 MATERIALS, artisans, &C., to have lien on...................678 MECHANICS, artisans and tradesmen may retain in possession, and shall have lien on articles made or repaired......................678 MORTGAGE, lien to have effect of.....................683 NOTICE of sub-contractor to owner.....I................684: owner not liable to sub-contractor prior to................684 OWNER, contract to be made with, to fix liability under this act.........680 who to be deemed such.........................683 to be'notified by sub-contractor.....................684 to be debtor to sub-contractor after service of such notice..........684 PARTIES, who may be made, in suit under this act..............681 how persons not made parties may become such..............681 h ow others may be made parties by answer................682 amendments may be allowed to admit..................632 persons may become parties before their claims awre due...........682 who to be deemed such........................683 PAYMENT to sub-contractor after -notice, a defense..............684 PENALTY for neglect to enter satisfaction.................. 688 PERSONAL Property, liens on.......................678 PETITION to be filed on commencement of action...............681 what it shall state..........................681 may be filed by party in interest after commencement of suit.........681 PLEADINGS and motions may. be made, as in other cases............681 1066 INDEX. LIENS, MECHANICS, continued. PLEADINGS, amendments may be made, when.681 POSSESSION of articles made or repaired, mechanics, &c., may retain for charges unpaid............................78 PPocEEDINGs for the enforcement of liens upon personal property.679 against buildings.....................681 IRAILROADS subject to liens unctier this act... REDEMPTION, right of, creditor may cause to e sold.68 REPAIRS of personal property, lien mnay be had for.678 679 SALE of part of the premises, when may be made.682 court to determine how proceeds of, to be distributed683 court may delay, until rights of all parties shall be ascertained. 66 SATISFACTION, when and how shall be entered.688 penalty for neglect to enter.............688 SERVICE, constructive, may be had as in other cases.681 STOCK, livery stable keepers, &c., shall have lien on, for keeping.680, 689 STRAYS, county shall have lien on for one-half the value after title vests in taker up, 87 SUB-CONTRAcTOR, how may secure the benefit of this act684 lien of, shall have same effect as lien of contractor.68 and be enforced in same manner....684.... payment to, shall be a defence..........684 may have action at law after property exhausted.684 owner not liable to, until notice.........685 SUIT, for enforcement of liens upon buildings, when and how may be commenced, 681 how persons may be made parties to.... 681 legal representatives may be parties...................683 to enforce liens upon personal property, proceedings on..........p 679 SUMMONS, proceedings on different returns on, in enforcement of liens on personal property.............................679 TRADESMEN shall have lien on articles made or repaired............678 WonE, lien shall extend to all.......................681 LIEUTENANT GOVERNOR, duties of....................5 LIMIT ED PARTNERSHIPS, formation of. See Partnerships. LIQUOR SELLING. See -Dram Shops. to Indians. See Indians. LITERARY INSTITUTIONS, property of; exempt from taxation.........875 See Corporations, Academies, Colleges, 4~c. LIVERY STABLE KEEPERS shall have lien on stock...............689 See Liems LUNATICS AND DRUNKARDS, an act concerning, Ch. 139. ACCOUNTS, guardian to render to court once a year or oftener..........693 guardian. shall immediately settle, if ward restored to his right mind......694: if ward die, guardian to settle...............I.......6 94 AUCTION, real estate of lunatics, &C., when to be sold at............692 BAIL, no insane person, &c., shall be held to................693 BOND, guardian to enter into...I....................690 condition of.............................690 where to be deposited..........690 copy of; shall be evidence........................690 INDEX. 1067 LUNATICS AND DUNKARDS, continued. PAGE CHANCERY, Court of probate court to have same jurisdiction as, in these cases.. 694 CHILDREN, Of lunatics, &c., to be educated out of proceeds of his estate......... 691 CONFINEMENT, by guardian, of person furiously mad........................ 694 by any judge of a court of record, or any two justices of the peace, when..... 694 CoNTRAcTs made by person of unsound mind, &c., not valid................. 693 COSTS Of proceedingshen person found to be insane, &c., to paid out of his estate, O if that. insufficient.................................... 690 if person alleged to be insane be discharged, to be paid by person at whose instance proceedings are had, unless.......................... 690 when to be paid by...................................... 690 Co of bond given by guardian, shall be evidence.......................... 690 COUNTY; when to pay costs....................................... 690 DEATH of insane person &c., in case of, power of guardian to cease............ 694 DEBTS of insane person to be set forth in the petition of guardian, for authority to ~mortgage, &c............................................... 692 D for property of lunatic, &c., not to be executed till court approve agreement of guardian made under order....................................... 693 guardian to execute to purch...................................... 693 ESTATE of lunatics, &C., costs of proceedings to be paid out of................ 690 probate court may order management of, &c............................. 691 personal, when insufficient for discharge of debts, &c., guardian to petition for authority to mortgage, lease or sell real estate.......................... 692 petition shall set forth particulars of...................................... 692 when to be leased, sold or mortgaged................................... 692 real, whent sale of ordered, guardian shall cause notice to be published.....692 shall descend and be distributed in case of death of lunatic, &c........694 EVIDENCE; Copy of guardian's bond shlall be..................690 EXECUTION; -body -of insane person, &C., not to be taken in..........693 FAMILY of lunatic, &C., probate court may make order for support and maintenance of............................691 GUARDIAN shall give bond.,.......................690 court may require to give new bond...................690 honr of; where to be deposited......................690) shall cause notice to be published....................691 shall take charge of; and provide for person committed to his charge......691 shall collect and take into his possession all goods, chattles, Sac., belonging to person under his guardianship.....................691 shall file inventory of estate of ward, including debts, credits, &c.......691 shall file additional inventory................e......691 shall defend actions, settle demands, &aC.........I.........691 when shall apply for order of sale....................692 shall give notice of sale.........................692 shall make report of sale verified by affidavit................692 shall make deed............................693 shall make annual settlement...................... 693 may sue and recover property sold by ward................693 Dot to be personally liable in actions against ward.............693 shall make immediate settlement when ward found to be restored to right mind, or shall die..........................694 1068 INDEX. LUNATICS AND DRUNKARDS, continued. PAG GUARDIAN shall make settlement when removed.694shall confine ward when necessary......694 shall defray expenses attending such confinement.695 INQUIRY as to lunacy, how held............689 special term of court may be called to make.689 INFORMATION; proceedings to be on.........689 690 INVENTORY of estate, must be filed.........691 to be verified by oath..................691 JUDGE of Probate may call special term to make inquiry of insanity, &c689 J uRY, shall make inquiry as to lunacy, &c.689 690. 693 JUSTICES of the Peace may cause insane persons to be apprehended69 MAINTENANCE of family of insane person, &C., court may make order for. 591 of insane person, expenses of, if paid bycounty when may be recovered 695 MORTGAGE of estate may be made to defray expenses.692 not to be executed until agreement be approved by the court.693 NOTICE of appointment shall be made by gurdian.691 of sales, shall be made by guardian..... 692 OATH; inventories to be verified by........691 PERSONAL property, ward shall take into his possession.691 when insufficient real estate may be mortgaged, leased or sold.692 PETITION for sales, &c., of real estate, requisites of 692 PROBATE Court; inquiry to be made on information to, of insanity, &c689 may appoint guardian.....................690 may set aside inquisition and cause new inquiry to be made.690 may require new bond to be executed..................690 may make order for restraint, &c., of ward, and for maintenance, &C., of his family...............................691 may order mortgage, lease, or srle of real estate.........691, 692 may remove guardian, for neglect, &c...................694 may cause insane person to be apprehended................694: SALE, &C., of real estate, proceedings on...................692 LYON COUNTY. Namne of Breckenridge County changed to. Ch. 61. See Counties. MACHINERY; included in lands subject to liens. See Liens. MADISON COUNTY. See Counties. MAIMING. See Crimes and Punishments. MAJORITY; period of..........................720 MANDAMUS; Supreme Court shall have original jurisdiction in..........57 proceedings in. See Cocde of Civil Procedure. MANSLAUGHT-ER. See Crimes and Punishments. MANUFACTURING COJMPANIES; how incorporated. See Corporations. MAPS OF NEW COUI~ TIES to be recorded, and copies transmitted to the Secretary of State............................438 MARRIAGE; what, presumptive evidence of................. 469, 474' MARRIAGES; penalty for solemunizing certain......I.............332 MARRIAGE. AN ACT IN RELATION TO. Ch. 140. marriage a civil contract........................695 marriages that are declared to be incestuous and void.............695 penalty for contracting or solemnizing incestuous marriages.........6950 marriages conitracted without this Territory.................696 INDEX. 1069 MARRIAGE, continued PAGE ceremony by whom performed..................................... 696 penaltyfor joining minors in marriage without consent of parents........... 696 records of marriages shall be kept by person having authority to marry...... 696 certificate to e recorded by county clerk................................ 696 books of marriages shall be evidence................................... 696 penalty for neglect to keep book of marriage..............................696 for neglect of clerk to record marriage certificate.......................... 696 for making false return or false record of marriage........................ 696 MARRIED WOMEN; RIGHTS OF. Ch. 141. property of at the time of marriage to remain her sole property............. 691 may convey her property.................................. 354, 697 may sue and be sued in relation to her property, person, or reputation 697 may equeath one-half her property.................................... 697 how her separate property shall descend................................. 697 may bring suits under Dra-Shop Act.................................. 488 tcannot be executrix or administratrix................................... 512 entitled to what portion of her husband's property at his death.............. 697 when optional for her to take under will................................ 698 may carryontra...................................... 698 may invest her earnis and sue and be sued............................. 698 married out of the State rightsf..................................698 her lands only, liable when....................................... 698 execution for her tort to be first levied against her land.................... 698 separate deed of married women shall convey no interest in her husbands land........................................699 ABSOLUTE property of wife, what shall become at death of husband.......697 of husband, -what shall become at death of wife.............697 AcCEPTANCE of conditions of will, when optional with wife...........698 CHILDREN;'one-half of estate of parents shall descend to...........697 DEBTS of husband; separate property of wife not liable for.......697 of wife before marriage, to what extent husband liable for......... 698 EARNINGS of wife, her sole property....................698 EXECUTION May be had against wife's separate property. and judgment against he r................................698 for tort of the wife, to be levied- first on her land...............698 HIUSBAND to have what portion of wife's property at her death.........697 to what extent liable for her debts contracted before marriage.........698 LANDS of wife only liable on joint judgment against her and her husband, when...............................698 first liable on judgment for her tort...................698 MARRIAGE settlement not invalidated...........698 )MARRIED sanai disposition of his estate at his death.697........... separate deed of, shall convey no interest in wife's land...........699 MARRIED woman may bring suit under Dram-Shop Act............488 may sue and be sued in all matters having relation to her prop~erty, person, or reputation, as if she were sole......................699 RENTS of married woman, her sole property...........a.......697 SOLE property'of married woman, what shall be........... 697, 698 TORT of. wife; judgment on, to be levied first against her lands.........698 68 ~~~~1070 ~INDEX. MARRIED WOMEN, continued.AG TRADE; married woman may, on her sole and separate account...98 WILL; married woman may make...........................697 when married woman may accept or not................... 97 e Code Civil of Procedure. See Code of Criminal Procedure. MASTER. See Apprentices. MASTER COMMISSIONER shall not sell estate. See Commissione, Master &e Code of Civil Procedure. MAYHEM. See Crimes and Punishments. MAYOR. Se oporations. See Cities. MECHANICS LIENS. See Liens. MEDICAL SCIENCE. ACT TO PROMOTE. Ch. 183. MILITARY; subordinate to civil power...........................e.50 MILITRY EXEMPTIONS; proceeds from, shall be applied to schools.61 MILITIA OF THE STATE; how to be constituted.............63 legislature shall provide for the organization of.................63 governor shall be commander-in-chief........................63 MILITIA, an act to organize and discipline, Ch. 143. AEs, between which, persons liable to perform military duty....699 APPEAL from decision of justice, persons may take under this act.. 706 ARMORIES, who shall provide.................................716 A s &C., quartermaster general shall have care of.............712 persons appearing at parade with unserviceable, &c., shall forfeit one dollar... 715 penalty for selling...717.... Welling....................................... ARRESTS, how and by whom made...........................717 ASSESSORS, County, shall make enrollment annually..............700 BATTALLION, when companies may be organized into..............503 BOND, shall be given by officers collecting military tax.............708 BRIGADES, divisions shall be divided into..................700 BRIGADIER Generals may commission persons to raise new companies......706 CAMP Equipage, volunteer companies shall be furnished.......... 710 COMMANDER-IN-CHIEF Of Militia, governor shall be...............700 COMPANIES, shall be numbered..............I.........702 may adopt constitution and by-laws..............I...... 704 u-niform of, officers shall select...705... CONSTITUTION and By-Laws, companies may adopt...............704 CONTEMPT, of soldier toward officer, penalty...................715 COSTS of suit to recover fines, who shall pay..............I...709 COUNTY Clerk, assessor shall place militia rolls in office of............700 DELINQUENT, officers shall make list of...................705' shall be fined.............................706 for quitting guard, &c., penalty.................... 716 DISCIPLINE, what to be observed......................713 DIviIsoNs, State divided into two............I.........700, 718 governor may appoint one or more major generals for each...........700 ELEcTION of officers, how conducted.....I................712 ENCAMPMENT, commanders of divisions shall order annually.......... 713 shall last three days...........................714 who shall inspect............................714 penalty for neglect to attend-...,,................. 714 INDEX. 1071 MILITIA, continued. PAGE ENROLLMENTS, county assessors shall make annually....................... 00 EXEMPTION from military duty, who shall have............................ 70 from taxation, military equipments, &c..706................. EXPIRE, when commissions shall..............................705 FINES, assessor subject to, for failure to enroll militia..700......... officer failing to procure uniform, subject to.................705 for refusing to appear in uniform on day of muster.......... 706 amount of imposed on all general officers............................ 707 for disturbing musters..................................708 for quitting uard.......................................716 for absence, &. when ordered out.........................16 GOVERNOR, shall be commander-in-chief of militia.............. 700 INVASIONS &C., militia may be ordered out in case of........................ 01 JUSTICE of the Peace, shall issue summons against delinquent.. 70.. LIST of delinquents, commander of company shall make out......706 MAJOR GENERALS, governor may appoint....... I.......... 00 may commission persons to raise new companies..706........... MEDICAL Department, commander-in-chief may organize..718..... MILITARY Fund, how raised..................................708 costs of suit to recover fines, when to be paid out of..709........ fines &C. shall- go into.................. 0................ cam ge, &c., to be paid out of......................710 MILITIA, what duty subject to perform.......................701 what officers attach to each division of.....................710 MUSTERS, fines for disturbing..................... 708 pay of officers,and privates when under civil authorities, what, and how paid. 710 OATH to be taken by officers, privates and musicians..............729 PENALTY, for refusal to give information to assessor.............700 if assessor'neglect or refuse to enroll militia................700 RECORD Of company, prima facia, evidence..................709 REFUSAL, to give information to assessor, persons shall be fined for........700 of assessor to enroll militia.......................700 of commandant to appear at order of sheriff; in case of riots, &c., subjects him to -fine................................709 REPORT, generals of divisions, &c.-, shall make to adjutant generals annually....703 RESIGNATIONS, comma'nder-in-chief may accept................ 710 RETURN, officers shall make, to whom......................703 RIOTS, &C., power of sheriffs, and mayors, in case of.........I......709 if soldier guilty of, penalty................I........716, SENATE, consent of; necessary to appointment of major generals...........700 shall confirm such appointments........o.............700 STAFF Officers, to be attached to the commander-in-chief; &c... 711 of rank of lieutenant and upwards, commissioned as other officers........712 TAXATION- and Execution, military equipments, &c., exempt from..... 806 UNIFORM to be such as officers may select...................705 officer deficient in, shall he fined.......................717 VACATION, of office, removal of officer out of bounds of command, considered such, 705,MILITIA, an act for auditing the expenses of, for the year 1861, Oh. 145. AccouNTs, quartermasters and commissaries shall make affidavit to......719 1072 -INDEXo. MILITIA, continued. AG AFFIDAVIT shall be made by captains to muster ros 79 AUDITOR shall report to next legislature the number of soldiers and officers time in service, &c.............................71 CAPTAINS shall make muster rolls............ 71.. COMMISSARIES shall make affidavit to their account..... 7.USTER Rolls to be made out and sworn to by captains OFFICE RS commanding regiments, &c., shall cause muster rolls to be made out and shall, report them to auditor........71 MINORS, period of minority in males twenty-one-years72 in females, eighteen years.................20 BOUND, by contract for necessariea....................20 by other contracts, unless disaffirmed at m i 720 when his contracts cannot be disaffirmed. 720 payment to7 for personal service, good against parent or guardian720 minors, where settlement of, deemed to be.74 not to be concluded by wrongful action in ameasurement of dower.483 damages recovered for, under Dram Shop Act, to whom paid.488 MISDEMEANORS. See Crimes and Punishments. See oporaions Seeities. MISPRISION OF TREASON, what, and punishment of.46 MOBS, cities liable for damages by.....467' MONEYS OF THE STATE, statement of the receipts and expenditures of shall be published.6'...68'...... See Fund. "MONTH," meaning of the word................ 8 MORRIS COUNTY. See6 t~onties. MORTGAGEE shall hold legal title and right of possession of personalty......355 MORTGA GOR, may retain possessession of real, estate.................. 35'a MORTGAGES, satisfaction of; Ch. 151. entry of satisfaction of; on mortgyageP or record' of;. shall be a release.......724register of deeds shall leave space fretyo aifl'ino agno record. 724: how entry to be made, and, fee therefor.................724 penalty for neglect or refusal to enterisatisfaction. of mortgage.........724 such entries, he'retoflore made, not invalid.................726 FORECLOSURE of; shall be foreclosed in district court.............722 deeds of trust deefned, and shall be foreclosed ns such...........722 proceedings shall be in conformity with Code of Civil Procedure.........722 courts shall not tax -over two dollars.atorney.fee722 sales of lands on foreclosure of.............187 given to secure purchase money, not afetdb xmto c.4 ~Jien of mechanics, to have effectf of....................683 MORTGAGES, CHATTEL,'and bills of sale of personal property, Ch. 150. copy of mortgages shall be deposited in office of register of deeds, otherwise void, 722 howifiled................................723 void secondly Vwhen..........................723 copy of mortgage shall be received as evidence................723 fees of register under. this act..........723 MULES. See Stock. MURDER. See, Crimes' and Punishments. INDEX. 1073 PAGE MUTILATION ACTS AND BILLS after they are signed by the governor, deemed a felony....................................... 725 NEGOTIABLE INSTRUMENTS. ee Bonds, Notes and Bills. See Code of Civil Procedure. NOTARIES PUBLIC, protest of prim facia evidence of refusal to pay............ 115 ~~fees of............................................... 563.governor shall appoint............................ 725 ~oopower s of and duties............ 725, 726 shall keep record.......................................... 725 shall give certified copy, when..................................... 725 in Lase of vacancy, what to e done with record, &c................. 725 shall have notarial seal.................................. 726 shall take oath and give bond....................................... 726 nature of oath ee............................................ 726 hall record bond, where...................................... 726 limitations of actions against...................................... 726 validity of acknowledgments heretofore taken............... 726 NOTES o BANKS, shall be redeemable in money of the United States............ 67 owners of shall be entitled to preference in case of insolvency.. 67 shall not be of a less denomination than five dollars...................... 67 NOTES.' See Bonds, Notes., cC. NOTICE of thirty days necessary to terminate a tenancy at will............. 355 need not e greater tan'intervals of rent.......................... 355 to farm tenants to be on first of April... 355 Sce Londlords andI Tenants. in civil act-ions. See Code, of Ciivil Procedure..of appraisemient of property to be sold on execution,'&c...........772 SeReal Propierty. of openingo roas Se Rods ee, Executor2s and Administrators. See Counties and Officers. NUISANCES. Ch., 154. penalty for putting any dead animal into any Wel, spring, or branch......726 owners of slaughter-houses permitting slaughterrd animals toremain unclean to annoyance of -citizens, penalty.......I.............. 721j7 owners of soap, -candle, and oil factories, permitting same to remain uncleanpenalty..............................727 penalty for putting carcass in any river, creek, or road, &c...........727 offenders, how prosecuted..........I............. 727 dr~am-shops to be abated, as......................488 "'OATH," word includes affirmation.......................837,form of oath to be taken by militar officers, privates, and musicians.......729 OATHS, act regulating. Ch. 155. who authorized to aminister..................728 how to he administered...........728 form. of oath and affirmation........................728 official oath........728 OCCUPANTS of land, without contract, liable for rent................ 66 "a OCCUPYING CLAIM1ANITS. flee Claimants. See Code of Civil Procedure. 1074 INDEX. PAGE~ OFFICE, who disqualified from holding........60 OFFICES, State to be kept at seat of government.70 county, shall be kept at the county seat..432 fire-proof, county board shall provide.....412 usurpation of, intrusion into, &c. See Quo Warranto. OFFICERS, election of, to be provided for by the legislature56 may be chosen or elected as may be provided by law68 salary of may be reduced for neglect of dut.69 State, &c., salaries of. See Salaries. county, penalty for neglect to keep books open to the public.432 fees of. See Fees. OFFICIAL OATHS, form of.................728 ORDERS, in civil actions. See Code of Civil Procedure. county, lost or destroyed. Ch. 158. territorial, county, and township, to be received in payment of taxes. Ch. 199. See Counties and County Officers. county and state treasurers prohibited from dealing in. Ch. 206. county; an act to restrain the issuing of. Ch. 157. AccouNT shall not be allowed for a greater sum than an ordinary compensation for the services, &c.................730 mnust be verified by affidavit............730 AFFIDAVIT to account, what it shall set forth.730 COUNTY Clerk shall not issue a greater amount of warrants than tax levied less delinquencies...................... 30 penalty for violation of provisions of this act................731 COUNTY Commissioners, what amount of tax shall levy annually........730 shall levy twenty per centum to make up for delinquent tax.........730 restrictions as to amount of warrants they may issue............730 shall allow accounts according to the legal or ordinary,compensation, dollar fordollar...............................730 shall not issue warrants for more than. amount allowed on account.......730 exception as to accounts, for rents, fuel, lights and stationary.........7330 pen~alty for violation of this act..............731 DELINQUENT taxes, levy made, to make up.................730 ExPENSES, &C., warrants to be issued to no greater amount than........730 FEES to be paid in warrants at ordinary rates.......I....730 FINE, amount of; for violation of this act................7,31 FUEL, &C., excepted from restrictions of this act................730 MATERIALS, &c.', to be paid for at ordinary rates................730 OFFICER'S fees and salaries to be paid in scrip.at ordinary rates.....730 PENALTY for violation of provisions of this act................731 SALARIES Of Officers to he paid in scrip at ordinary rates.............730 STATIONARY, &C., excepted Thorn restrictions of this act.............730 ORDINANCES of cities, certified copies of; evidence...............108 ORGANIC ACT. Boundaries of Kansas Territory................37 ExEcUTIVE power vested in a Governor..................38 GOVERNOR, term, of office..........................38 may grant pardons....................38 may exercise veto power....................... 40 INDEX. 1075 O~~~~~~~~RGANIC ACT, ~ ~cof ~ued. rPAGE GOVERNOR may call Legislature together in extra session.................... 44 shall commission officers..................................... 38 apportionment, &c...................................... 39 Legislative Assembly shall consist of a Council and House of Representatives.. 39 umber of members.......................................... 39 m......embers shall not hold office........................... 41 vacancies.39.................................................... 3 length -of session..,......... 39 laws shall be approved by the Governor................................ 40 power of the..................................... 40 o,...,,,,,,oo.. o., o.. oo.,o, o.,,, 44 tohed................................... 41 may be convened, by the Governor......44.....;............................. 41 judicial power, in wh................................... v41 4T their jurisdiction.................................... 41 districts, how divided and defined................................... 41 classeued by Supreme and District Courts................................. 41 writs of error and appeals.............................41.,... a1 writs of habeas corpus may be issued by Supreme and District Courts.... 411 Probate Courts, their jurisdiction....................41 eal in cases involving title to slaves only to be had to Supreme Court.... 41 acts relating to fugitive slave not affected by organic act................... 1 acts relating to fugitive slaves to be in force in Kansas Territory............ 43 Missouri Compromise to be void as to Kansas Territory................... 46 ACS relating to fugitives from justice to be in force in Kansas Territo ry 43 APPROPRIATIONS shall be made by Congress to defray expenses.........44 shall be made for public buildings and library...............46'ARMY officers and soldiers not to vote....................40 ATTORNEY, United States, term of office..................43 COMPENSATION Of judges, senators, and members of the legislature........ 44 CONSTITUTION and laws of the United States applied to Kansas Territory..... 46 DELEGATE to Congress, election of, &c....................46 DISBURSEMENTS, how made........................44 ELECTIONS, time of holding, &c......................3i9 ELIGIBILITY to office.........................40 INDIANS, rights of, not to be impaired by.................35, 47 MARSHAL, United States, term of office and duties............. 43 OATR of office, to be taken by all officers of Kansas Territory......... 44 OFFICERS Of Kansas Territory to be commissioned by Gxovernor.....I.... 38 to give bonds.......................I......47 how appointed................................44 county and township, how appointed.....................41 OFFICIAL oath to be taken by all officers...................44 QUALIFIcATIONS, of voters........................40 SCHOOL sections............................ 47 SEAT of government........I................. 45 SURVEY of public lands...........................47 OSAkGE COUNTY, location of county seat of. Ch. 64. OVERSEERS of the poor. See Poor. of roads. See, Roads. See, Tboumship, and Township QjIeers. 1076 INDEX. OWNER, who deemed such, under lien act. See Liens PA PARDONING POWER, Governor may exercise52 PARDONS, on what conditions Governor may grant. effect of.............................. 344 PARTIES, in civil actions. See Code of ivil Procedure. in suits under lien act. See Liens. on notes, bonds, &c., how may be designated.. 115 PARTITION, of real estate of, joint tenants, tenants in common, and coparceners. Ch. 162. ALIAS order may issue, if sale not made....74 APPRAISED value, when party may take estate at, by payment to other parties 742 estate not to be sold a-t less than two-thirds of743 CosTs to be taxed according to equity......74 COUNTY in which proceedings for partition shall be had740 when estate situated in more than one, writ may be directed to either. 741 DISTRICT Court, proceedings in partition to be had in740 FREEHOLDERS, three to be summoned to divide the estate. 742 when estate may be revalued by....................... 43 GUARDIAN, elect to take estate on behalf of wards..744 JOINT Tenants, tenants in common, and coparceners may be comelled to make or suffer partition...................740 NOTICE, demandant shall give notice, to persons interested.41 when such has been given court may order partition, how.71 OATH, freeholders to examine estate and makepartition of.742 sheriff to administer to freeholders.....................743 ORDER, alias may issue, and revaluation, as ordered, if sale not made.......743 PARcENERS, privileges of........................744 PARTITION, joint tenants, &c., may be compelled to make or suffer.......7470 persons entitled to, to file petition in district court.............741 when court shall order.........................741 freeholders to examine estate and make..I................742 when demanded on more than one tract, duty of freeholders......... 742 person of whom demianded may appear and consent to before a writ issues.... 742 when cannot be ma de without injury to va-lue, proceedings..........742 costs i-n, who to pay................I.........744 PETITION, to be filed in district court by persons entitled to partition......741 PURCHASE money, when payable........i............744SALE, court make order for, when.....................743 if not made, alias order may issue..................... 7 4 3 PARTNERS, DECEASED, settlement of estates of. Ch. 160. unincorporated town associations holding land shall be deemed partnerships.. 732 interest of deceased partner shall be deemed assets of co-partnership......732 survivors may close up co-partnership business as if property were personal.. 732 heirs shall fulfil agreement of ancestor................733 survivors may have action in district court, to compel execution of contract of ancestor.............................733 judgment may be recorded with same force as deeds............ 734in case conveyance is made before suchjudgment......I.......734if deceased partners have not acknowledged map or plat...........7'35) INDEX. 1077 ~~~~~~~~~~~~~~~PARTNERS, continuePGE if areements be partly performed, may be legally enforced after death of ~~partner..................................... 735 surviv partners to give bonds for faithful accounting to executive, &c...... 735 in default, thereof of sch as do give shall have control of the assets........ 735 district court have the same power as if assets were personal property........ 736 when persons shall have mutuall agreed to lay off land, &c., and one or more have received conveyances, the remainder may enforce such partners to make ~conveyance~................................... 736 PARTNERSH S, LIMITED, formation of. Ch. 161. AFIDAVIT, to be filed of amount of money or property contrib uted............ 738 of printers, evidence of pu n......................... 738 required upon the renewal or continuance of partnership.................. 738 ALTEATION made in partnerships makes it general unless renewed. 739 ASSIGNMENT, general, not valid unless certain provision is made.................. 739 in case o assent of creditors presumed unless they object.................. 739 CAPITAL Stock, no part of shall be withdrawn during continuance of partnership. 739 CERTIFIcAT persons forming partnerships shall sign; what it shall contain... 737 shall be acowledged before a proper officer and filed with county cierk.... 737 COMPANY addition of the word not necessary................. 739 CONTRACT if secial partner makes he shall be deemed general partner........ 739 ou, if business carried On in different, transcript of certificate to be filedt in each.................... 738 T............................... 738 COUNy Clerk, Certificate shall be filed wit............ 738 DisSOLUTION, alteration of names of partners, &c., shall be deemed.739 not otk place until time specifiedi. etiiae unless notice recorded and published..............................740 FALSE statement, if any he made in. certificate or affidavit, all persons interested liable for engagements.......................738 GENERAL partners, responsibility of....................737 only authorized to transact business for the partnership............737 affidavit of one or more of shall be filed at time of filing certificate........ 73 8 only suits to be prosecuted by and against, except, &C...........740 INOTICE, of terms of partnership shall be published..........738 of assignment of partuership shall be published...............739 of dissolution of limited partnership shall be publisheId............740 RENEWAL, how to be made........................7308 ~SPECIAL partners, who to be deemed...................737 when shball be treated as gleneral partners.................739 when shiall be joined in suits......................740 SUITS, how prosecuted.......................... 740'PATENTS, LAND, may be recorded by register of deeds. Ch. 159., PENALTY, for selling liquor without license. See Dram Shops. for making fraudulent maps of cities and towns...............120 for selling town lot before recording plat.......119 for making~ fidse statement in certificates of proof of acknowledgments.....356 for neglect of county officer It-o keep offices, hoolks and papers open to the public 4 32 for neglect of duty on the, part of county commissioners........ 415 for neglect todlvrcunytesrr's books to successor.43 for returning upon lands from which removed...............823 1078 INIDEX. PAGE PEN ALTY, for permitting seed animals to run at large. h. 191. for mutilation of acts and bills..........72 for selling liquor to Indians. Chs. 113, 114. for firing woods, marshes and prairies. Ch. 101. for refusal or neglect to enter satisfaction f mortgage.724 for violating the act to restrain the issuing of county orders731 See Schools. See Crimnes and Punishments. See Counties and County icers. PENITEN'TIARY, shall be established, directors to be elected or appointed62 PERISHABLE PROPERT'Y, unclaimed, disposition of. See P erty Unclaimed. See Code of Civil Procedure. PERJURIES. See Frauds3 and Peijuries. PERJURY, false swearing at election deemed such. See Elections. Se Cries and Punishnments. "PERSON," word may be extended to body politic and corporate.87 "PERSONAL PROPERTY," words include money, goods, chattels, evidences of debt and things in action...................... 837 See Txes. PETIT JURORS. SeeJurors. PETITION, against boats, form of.............111 See Code of Civil Procedure. See Lien See ad. See Couties and County Officers. See flighways, Streets and Alleys. against physician, for prescribing while intoxicated. See Cres and PunishMrnents. PLATS of cemeteries to be recorded..........118 of cities and towns to he recorded....................119 of new townships to be recorded by county clerk.............415 to he filed with township trustee...............415 POISONING. See Crimes and Punishments. PORTION, wife's, rules relating, to.....................I..469 S9ee Descents and Dis5tr-ibutions. POSSESSION, writ of, when may issue:....................124 adverse, does not prevent sale of whatever interest grantor may have......354with conisent of owners, presumed to be at will............354mortgag~or of realty, has the, right to................... 355 mortgagee of personalty has the rght to.............. 354 POTAWATOMIE COUNTY, an Act to locate the seat of justice of. Oh. 65.1 POWER OF ATTORNEY, instrumient revoking, must he acknowledged and recorded 356 POWERS, delarattions of; how to be executed...........3`55 POOR to he provided f'or by the respective counties of the State...........62 POOR, an Act for the relief of. Oh. 163. ALLOWANCE, county commissioners may make for the Po-or..........I.747 APPEAL, poor person may take, to county'commissioners,'when.........747 overseers -may take, from decisions of justice of the peace to probate court 748, 752 APPRENTICE, minors bound as, shall gain a settlement.............745 if maltreated, may have redress...............I........751 Asyl~um, county commissioners -may establish when deemed advisable.......750 two or more counties may jointly, establish................750 county hoard may assess a tax for......................750 Purchasing land for..................... 751 INDEX. 1079 ~~~~~~~~~POOR, conm~tinued.~ ~PAGF. BOND, superintendent..................................... 751 CHILDREN, legitimate, shall havethe settlement of the father................ 745 poor, may e bound........................................ 751 when so bound, if maltreated superintendent and overseer shall take legal means for redress....................................... 751 may be educated at asylum when inexpedient to bind them out. 751 superintendent shall send them to the common school....................... 752 CHILDREN, illegitimate, shall have the settlement of their mother.............. 745 shall not gain a settlement by birth in place where born................. 745 Superintendent may bind out..................................... 751 to be educated at asylum, when................................... 752 COMPENSATION of overseers of the poor, $1 per day......................... 749 COMLAINT, overseer shall investigate, of ill treatment....................... 747 of overseer asking removal of poor person to the proper county, proceedings on 748 to overseerf.....r...................7 0y 70 COUNTY shall relieve all poor persons settled therein..........................745 COU Commissioners may raise money for this purpose.................... 745 may make annual allowance to certain poor persons..................747 shall settle with overseers of the poor at least once a year.................. 752 shall examine claimson account of temporary relief and funeral expenses... 750 ml a t lum................................... 750 may appoint supIerintendent......................................... 750 maylevyatax..................................... 752 may appoint a board of visitors..................................... 752 FUNERAL expenses incurred by overseer may be charged to the county.......750 JUSTICE of the Peace, when many issue warrant for removal of poor person....7418 MAINTENANCE of the poor of the county, when proposals for shall be advertised 748 MINORS, where settlement of deemed to be.................745 MONEY, return of amount requircd to be made by overseers...........749 OVERSE ERS, who shall be.........................745 general duties of...........................746 shall advertise propo sals for maintenance of the poor of the county.......746 shall hear complaints in behalf of the poor.................747 shall enter list of all the poor.................747 on refusingy aid, application may be made to the board of commissioners.....747 when may appeal to probate' court.........I...........748 shall receive poor persons removed from other county...........749 shall make return to county clerk.of money required for support of the poor... 749 their compensation......i..................... 719 proceeding~s on death or removal of...................749 shall present annual reports and accounts..................749 their duties on request for temporary rclief................749 when may defray funeral expenses....................74:9 PENALTY for sending poor person out of the county in which he belongs.....7503 PHYSICIAN for county poor may be employed.................751 PROBATE Court, proceedings on appeal to..................748 may continue proceedings, when.....................748 PROPOSALS when shall be advertised for maintenance of county poor..... 746 REMOVAL, when justice of the peace shall issue warrant for, of. poor persons, to another county............................748 ~~109,0~~ ~INDEX. P001R, continued. PG REMOVAL, of poor persons to asylum.........................51 wrongful, penalty for'.....752 nalty for................................... REPORT overseers shall make, annually.......................749 SUITS, how Shall be brought............................... 74 SUPRINTNDENT of asylum, how appointed...................749 his duties................... I................ 749 sh l give bond............................. 51 shall educate poor children.......................752........ SETTLEMENT legal, of poor persons, how determined.. 745 when uncertain, how overseers to act......................747 annual of overseers shall be made by county board............749 TAx for purchase of land and erecting asylum, power of county oard in rela tion............................................................ county board may levy annually for support of the poor......52 TEMPORARY relief, when may be furnished.....................748 TIME within which legal settlement may be acquired..745......... VISITORS of asylum, may be appointed by county commissioners...52 their dties and compensation.............................52 WARRANT for removal of poor persons to another county, when may be issued 748 PRESIDENT OF THE SENATE, who shall beo...................... when shall act as governor.................................53 PRESIDENT and professors of colleges, how appointed.............362 PRESS liberty o guaranteed..................................51 PRIESTS, when disqualified from being witnesses.................236 PRINTERS, fees of, for publishing legal advertisements...............566 for prin ting laws in newspapers...................... 5 67 See Code of Ciivil Procedur91e. PRINTING, STATE, shall be let to lowest bidder..(3............. 8 ACT in relation to public. Oh. 164, 1605. ABSTRAcT of the law in relation to public printing to be contained in notice for proposals............................. 754 ACCOUNTS for printing, when shall he filed............... 758 what shall state..........I................. 758 shall be examined and certified.....................759 APPROVAL by the governor, date of, to be affixed to each law...........760 AWARDING bonrd shall publish notice flor proposals'for State printing.......753 when shall Open bids..............754shall procure,assistnnce of a printer to examine bids............. 7054 shall not receive bid of irresponsible person.................754 sh all -publish proposals for folding, stitching, binding, &c...........758 shall examine accounts..........................759 may extend the time, not exceeding ten days..............760 shall advertise aolafin on failure of contractor t D comply............761 BIDS, when shall be opened.........................754 to be compared with assistance of a practicail printer............. 755 found to be exhorbitantntctobgie aan........765 BILLS, how to be printed, and in what form............. 754 BINnING, style of 758,......................... 70 62 inotice for proposals for, when to be published...............758 INDEX. 1081 ~~~~~PRINTING, ~~C~~ontinued.~ ~PAGE BONDS, contractor shall enter into within ten days.......................... 757 CLERKS, hall furnish printer with copies of journals, bills, &c.................. 760 allowance to be made for................ 758 COLLATING, drying, and pressing, no allowanet, emd o.5 COMPOSITION upon bills to be counted as solid matter....................... 758 but one allowance to be made for, when printed in different volumes......... 756 fractions to be counted as full pages.................................... 756 roftbo ed................................... 756 for rule and fiure-work..................................... 756 lered by both Houses................. 756 but one charge for, when work ordered by both Houses............756 CONACTO shall deliver work in good order.............................. 757 shall file copy of work with Secretary of State............................ 758 shall file account with Secretary of State........... 758 for printing bills, &c., shall execute work promptly....................... 760 penalty for neglect....................................... 760 shall execute other work promptly.....................................760 CONTRACTS shall be given to the lowest responsible bidder who will comply..... 754 ow to be divided...................................755, 757 FOLDING, stitching, andbinding, contracts. how divided...................... 757 when to be let...758.......................................... 758 shall include collating, dryin, and pressing.............................. 758 INDEX to be macie by-,printer.....756...................................... 756 IJOURNALS, style in which they shall be printed......................... 756, 762 NOTICE, that sealed proposals for State Printing will be received, shall be given, how.753................................................. 753 PAGES, in composition of all ptmphlets, &c., every fraction of, shall count a full page................................756 PENALTY for failure of contractor to print bills, &c., on order of either house within twenty-four hours from their reception..............760 PRESS-WORK, in charging and counting, the token shall consist of one hundred and twenty-five sheets printed on both sides, or two hundred and fifty sheets printed on one side only..............I........757 PRINTER, -practical, may be called to assist ino peniDn- bids...........762 REPORTS, &C., in separate contract.....................755 to be printed on same, kind of type as specified for journals..........756 RULE and fig~ure work, double price shall be allowedfor......756 SECRETARY of State, what contractor shall deliver to..............757 shall give notice to successful bidder...I................757 shall keep in his office specimens of work required to be d~one.........758 and auditor shall examine accounts &C.................. 759 shall not allow constructive charges or other than is specifically named in this....ct........................759 contractor to deliver work to.......................760 may extend the, time for execution of contracts................ 760 shall furnish copy of laws to printer.................... 760.shall classify and arrange the laws, &c. passed at each session.........760 duty of if contractor fail to comply with stipulations.............761 See'Laws, Publication, and Distribution of. 1PRISON'BOUNDS. Ch. 166. BOUNDS, of jail, limited only by bounds of territory...............762 1082 INDEX. PRISON BOUNDS, continued. any person imprisoned under provisions of certain acts, entitled to benefits of this act........................... person imprisoned shall give bond conditioned that he will remain within bounds...........................763 in default thereof shall be committed.....763 PRISONERS. Ch. 167. if there be no jail in the county, may be committed to nearest safe jail in any county............................63 See Code of Criminal Procedure. See Code of Civil Procedure. See onvicts. See Habeas Corpus. See Crimes and Punisments. PROBATE COURT. See Court, Probate. PROBATE JUDGE, duties and powers of. SeeExecutors and Adminstrato. See Courts, Probate. See Code of Civil.Proceure. See Tos and Villages. See Elections Contested. See Lunatics and Drunkards. See Apprenti Guardians and Wards. See Dower PROMISSORY NOTES. See Bonds, Notes, and Bills of Excnge. "PROPERTY," meaning of the term. It includes personal and real property. 837 qualifications prohibited................50 See Real Property. PROPERTY, UNCLAIMED; disposition of. Ch. 168. consignee shall keep a book, and enter description of property, with date of reception, &c.................... 63 shall notify owner of reception of property, when..764: when he may sell such property........... 764 manner and time of giving notice of sale..764 if owner shall not take the same away after 60 days -notice, duty of consignee.. 764 justice shall cause inventory to be made, &c.....I............764 property to be sold at auction...................... 76 constable shall give ten days notice of sale................ 7605 how shall make return.......................... 765 charges to be paid out of the proceeds...................765 balance of proceeds to be paid to county treasurer...............765 owner may, within five years, receive the amount deposited with the treasurer 765 if not claimed in five years, shall belong to county.......765 perishable property, manner of nDotice -and sale......... 765 fees ~of justice and constable.................... 766 PROTEST. See Bonds, Notes, c~c. ~See Notaries. Public PUBLIC BUILDINGS, grant of land for....................77 PUBLIC RECORDS, recovery of. See Records Public. PUNISHMENT, cruel and unusual, prohibited..................50 by transportation, prohibited....................... 51 See Crimes and Punish7ments. See Penalties. PURCHASE MONEY, mortgage -given-to s~ecure Pot affected by Exemption Act... 548 QUINDARO CITY, Incorporation.Act repealed. Ch. 50. QUO WARRANTO, writs of. Ch. 169. information in the nature of, when county attorney- shall exhibit to district court.7.......................... 66 usurpation, intrusion into or unlawfully holding of office or franchise, when information of shall be exhibited.......766 INDEX. 1083 ~~~~~QUO WARRANTO conm~tinued.~ ~PAGE proceedings on information........................................ 766 appearance and pleading on information............................ 766, 767 what judgment shall be rendered..................................... 767 RILROAD COMPANIES, where may be sued.................................. 133 subject to mechanics liens................................. 686 RAILROAD COMPANIES an act relating to. Ch. 176. may unite or consolidate..................................... 767 companies uniting or consolidating under this act shall have equal privileges... 767 may construct a line of telegraph................... 768 these privileges conferred upon companies organized under the laws of the United States or of other States..................................... 767 privileges not to appl to lands that may be ceded by Potawatomie Indians... 767 subscriptions of lands, lots, &c., may be received............... 769 corporate name or number of directors may be changled at pleasure.......... 768 capital may be increased....................................... 769 road, rolling stock, &c., may be mortgaged............................ 769 deeds of conveyance how to be signed................................ 769 REAL ESTATE, term includes real property.. 346, 837 operty...........................346 837 partition of. See Partition. sold under execution, &C., redemption of. Ch. 171. real estate sold under execution subject to redemption.................... 769 certificate of sale shall contain what............. 769 duplicate to he filed with register of deeds..................769 who may redeem....................................... 7970 if property redeemed by redemptioner judgment debtor may again redeem from lastof redemptionerds.............................. 77069 ~~~...if not redeemed within two years, conveyance to be made. 770 if debtor redeem before time of redemption expires, sale is terminated........ 770 payment may be made to whom.....................771 what redemptioner must file with his notice in'Sheriff'Is office.........771 debtors may retain possession of premises, sold until, &c. 771 court may restrain commission of waste..................771 use in ordinary course of husbandry, or to use wood or timber. on the property therefor not deemed waste.771 use of wood for fuel in his family not deemed waste.771.......... if purchaser be evicted, he may recover the price paid with interest......771 contribution may be comp elled from joint owners, when...........772 APPRAISEMENT of in sales on execution, &c. Oh.. 172. notice of appraisement must be given to owner...............772 person notified may designate what part shall be sold............ 773 on failure to make designation, proceedings as heretofore........... 773 notice of appraisement, how to be made and served.............773' these provisions to apply to all sales of reai property other than private or voluntary sales.............................7703 See Code of Civil Procedure RECEIVERS IN CIVIL ACTIONS. Se&e Code of Civil Procedure. RECEIVING STOLEN GooDs. See Crim~es and Punishments. RECOGNIZANCES. See Code of Criminal Procedure. RECOR DS OF MARRIAGES, howy to be "kept...................696 of conveyances.............................3505 ~~~~1084 ~INDEX. PAGE; RECOD, COUNTY. See Counties and County OQffcers. JUDICIAL, of certain counties to be transferred to other counties. h. 2. Coe of Civil Procedure. PUBLIC recovery of. Ch. 173. officer who shall resign or whose office shall be vacated shall deliver to his successor......7............................... executor or administrator of deceased officer shall deliver...... 774 pkenalty for failure to deliver.............................. 74 dam es recoverable by person injured........................774 warrant for seizure of records, &c., when may be issued...... 774 how ma be served.....................................774 officer ay break open doors, &c...........................74 may arrest pison resisting execution of warrant.............. 774 penalty for failure of officer to execute warrant........................ 74 proceedings on complaint of person aggrieved by such warrant.. 775 warrant may issue for restoration if records be improperly seized.775 person obtaining possession of records shall deliver to person entitled... 775 REDEMPTION OF PtOPERTY, sold on execution. See Real lEstate. sold for taxes. See Taxes. Se C'laimants. REFEREES, trials by. See Code of Civil Procedure. inadmeasurement of wife's portion. See Descents and Distributions. REGISTER OF DEEDS, duties of. See Counties and County Oqgicers. shall register chattel mortgages, &c........................ 3 may record land patents. Ch. 159. RELIGIOUS tests pro bited..50 RELIGIOUS DENOMINATIONS shall not control any part of school or university fund. 62 RELIGIOUS SoCIETIES, how mnay be incorporated. See C'orporations. RENTS. See Landlords and Tenants. RENTS AND PROFITS, to be offset against impro-vements. See Claimants. REPEAL, sections amended shall be repealed...................56~ of certain-acts named. Oh. 4. RZEPLEVYIN. See Code of Civil Procedure. See Justices of the Peace. REPORTS, ANNUAL.'See.State Qificers. ISee Counties aned C~ounty Officers. See Schools. REPORTS OF SUPREME COURT. See Reporter. REPORTER OF SUPREME COURT, duties of. See, Courts, Reporter. REPRESENTATION, rules relating to. See Descents and -Distributions.. REPRESENTATIVES, apportionment of......................85 RESIGNATION or other disqualification'of the governor, in case of; duties to devolve upon president of the Senate.................5 of county officers, to whom to be made...................415 REVENUE for tile year 1862. Oh. 175. tax of five mills onl the' dollar to be levied..................778 capitation tax of fifty cents.........................778 how to be'appropriated.............778 two mhills onl the dollar of said tax to be paid in gold, &C., or coupons of State bonds......................778 REVIVOR OF ACTIONS See Code of Civil Procedure. REVOLUTION, punishment for beinG, concerned in.......342 REWARD FOR ARREST, governor mnaIy offer in certain cases... 20 INDEX. 1085 PAGE IG T OF AY, shall not be appropriated without full compensation........... 66 RIGHT of petition guaranteed............................................ 50 RIGHTS, equal ad natural. declared....................................... 49 of conscience guaran.................................... 50 ROAD, neain of the term.83...................................... 837 an act to locate a certain. Ch. 178. ROADS, powers of county oard in relation to................................. 412 ROADS an act defining the mode Of layig out, &c., Ch. 176. ASTAcTof road tax, county clerk shall make out......................... 795 ACCOUNT, overseers required to make annual settlement of, with trustees...... 792 ACTIONS. See Suits. APPEAL from decision for damages, may be had............................. 782 who shall pay costson........................................ 783 APPLICATIONS for laying out roads, shall be by petition to county commissioners. 783 for daaes, when to be made...................................... 785 otherwise shall be barred............................................ 785 shall be filed by viewers, withtheir assessment of damages thereon......... 787 ASSESSENTof damages from location of Territorial roads..................... 780 petition for, to be filed by person aggrieved.............................. 781 duty ofounty commissioners concerning............................... 781 from location of county ro............................... 785, 786 sof value of materials by road overseers................................. 793 AUTO county, to publish notice to persons claiming damages............... 780 fees for services under this act...................................... 783 BEGINNINGof roads t.o be specified in the petition..... 779 784 BOND to be given by parties interested in Territorial road...........779 on appeal from. decision of commissioners.................782 to be given by P~etitioners for location of county road............783 for location Of township road....I...................789 by person refusing to receive amount of damages certified by overseer.....793 BRIDGES, of the appropriation. of money for repairing..............795 contract to build, -how, let.......................795 CERTIFICATE, showing amount of timber, stone, &c., taken, overseer shall give on demand of owner....................79 shall be presented to board within six months...............793 CHAIN Carriers, &C., road -commissioners shall appoint to assist in laying out road, 779 compensation of $1.50 per day...................782, 788 CITIES, towns, and villages, all avenues, streets and alleys of, declared highways. 793 powers of, in relation. to. streets, sidewalks, &C...............9793 COUNTY Commissioners, petition for roads shall be to.............779 shall appoint commissioners to view and survey road, when.........779 shall direct road commissioners of the several counties interested in the road, to meet at place of beginning of road on the first Wednesday of the month next ensuing..............................779 shall order'the auditor to give notice to all parties interested in road, that the commissioners would hear the parties in favor of or against the road, &o.. 780 case may be continued to next renula r session of; whe.78 persons aggrieved by location of road, may petition to............781 may appoint a jury to view road on complaint........781 69 1086 INDEX. ROADS, continued. PAGE COUNTY Commissioners, shall order damages to be paid from coty treasury, when 781 shall refuse to establish public highway unless damages and expense be paid by petitioners, when....................781, 787 an appeal friom final decision of, to proper court of county, may be had782 may record and establish part of roan and reject residue, if road capable of division, 783 if road established, shall enter order to that effect783 shall appoint three disinterested freeholders as viewers and surveyor, when.... 78 return of surveyor and report of viewers, &e., to be delivered to county auditor on or before first day of next session....786 shall cause viewers report to be publicly read on two different days of same meeting...........................786 if report favorable to road, &c., shall cause report, survey and plat to be recorded on third day of meeting, and from thenceforth said road shall be considered a public highway.....................786 if report be against road, no further proceedings, &c786 may appoint threedisinterested landholders and a surveyor to review and straighten road, if uncertain...........8 said viewers and surveyor shall make a return of survey and plat of road to.... 787 to cause report to be recorded as in other cases.787 duty of, on being petitioned for view of new road on county line787 may be petitioned for township road......788 shall allow just accounts for damages, and disallow ujust accounts.793 shall require applicant refusing to receive amount of damages certified by overseer, to give bonds for payment of costs, on view forassessment of damages... 693. at their meeting in October, shall levy a road tax..............795 COMPENSATION. of road commissioners and viewers $2.00 per day......782, 788 of chain-carriers, markers, and other assistants,. $1.50 per day, and surveyors $3.00 per day..........................782, 788 for property aporated, jury to assess and determine...........784or damages, viewers not required to- assess, except to minors, idiots or lunatics, unless application be. made......................785 of viewers, chain-carriers, &.C., to- be paid out of county treasury.........788 to he paid owners through whose land township roads- are located.789 of laborers hired by overseers.......................795 COMPLAINANT claiming damages; petition and proceediDMS on.........781 COSTS, security for, to be given on appeal..................782 by whom to be paid on final decision.....................783 prosecution for, when and by whom to be made.;...............783 security for, when liable......................786, 794 how charged when.paid by the.- county................ 788 COUNTY, when. sball pay damages. from location of county roads........787 COUNTY Clerk to furnish to township trustees list of persons liable to work on roads, 795 See, Auditor. DAMAGEs, notice to be published th~at application for, -will be heard........780 persons agg rieved by location, of road, shall file, -petition for.........781 and, right of way,. petitioners may obtain.................781 if. no application be made -for, or, if paid by petitioners, road to be opened....781, 786 parties interested. upon payment- 9ofmay. have -road oed..........783 duty of viewers, to assess.....7 8 5 INDEX. 1087 RE~~~~~~~~OADS, cor~th~nuec~. ~PAGE DAMAGES, not to be assessed except on application, unless owner of land be under disability............................. 785 tobe stated by viewersin writin..................................... 787 of the assessmentof on roads on the county line................. 787 viewsof township roads shall be jury to assess................. 789 commissioners ma refuse pament of..................... 793 when to be paidby obligors....................................... 794 DELINQUENT, overseers shall give notice to................................ 796 DISTANCES to be noted uponsurVey.................................. 780, 786 DITCHES maybemade throgh adjoining lands............................. 792 D~ivISION................................ 783, 786 EXEcUTION oversrs may sue ou judgments, when............... 792 EXPENSES, security for ayment of to be given by petitioners for location. 779, 772, 983 EXTRA labor, credit for to be given...................................... 797 FEES of officers and persons performing services under this act................. 783 See, Go)7pensadion., ~~FINES, ~overseers to collect and pay............................... 791, 792 FREEHOLDERS, tenty to sign applications for location of Territorial roads........ 779 tobe surities.for petitioners................................... 779 to be jury for assessment of.................................. 781 twelvetosin applications fr county roads.............................. 783 to be viewers of onty...................................... 784 GAVEL aybe taken by overseers for repairs, &c........................ 792 GUIDE Boards, ovrseershall cause to be put up at cross roads................ 794 penalt for demdlU;ishirig,&c................794 INTERMEDIATE points to be specified in petition for location of roads......779, 784 to- be r'egairdecl in location of road's.....................780 JVDGMENrS for Costs, how may be rendered...................783 to have game force as other judgments...................791 list of; to- be eontained in report of -Ove~rseers.............. e... 792 exectitions, may be suied'out on......................792 Juav to a~ssossS damages, to'he Iappointed by commissioner............781 viewers of'road~s -shall bl', to assess damatges..........784, 785, 787, 789 to be summoned by-juLdge, on appeals...................782 to~be appointed by comimis'sioine'rs on appeals on locationi of township roads.. 794 JUST- cE, of the'Pa8 of a'ctions ~before, against viewer for refusal to discharge his duty...................788 agai n-s tdelin'quents.790 LANDHOLDERS, jury to'as'sess damages in location of township roads, to be.. 789 in'loca'tioinof roads on county lnes.....................786 LETTING6 of contract for building bridge, manner of...............795 LIST' of names- of personfs; li able to' work on roatd and who have rcfused or neglected to do so, to- be retu-n'ed by over'seers' at their annual settlement....... 792 of persons liable to work'on road, to be delivered by counity cl erk to trustees.. 795 M-ATERIA-IS ma-y'he purchased by overseer'to improve roads...........795 MILES to be marked by monu-merits in laying out roads..........780, 786 MINOR'S, idio-ts and lunatibs, en'titled to assessment of damages without application, 785 Mm'EY, collected fro m de-linquet laborer and: other sources, tbexpended for improvement of road:....I............ 4........790 1088 INDEXM ROADS, continued. A MONEY, remnaining in hands of overseer, to be paid er to successor 792 received by trustee from county treasurer for road'purposes, how to be expended, 795 MONuMENTS to be placed at the end of each mil', n location ofroads.78 78 if removed so that true course of road be uncertain, reviewers to be appointed... 787 NOTICE to persons to applyr for damages from location of Territorial road.780 to be given by persons applying to county commissioners for location of county road........................................ 8 to be given to person through whose land such road is proposed to be located 784 to viewers and surveyor of their appointment... 784 of application for location of township road..788 by overseer, to persons liable to work on road.. 790 796 of letting of contract to build bridge...7..95 to persons ordered to assist in removal of obstructions or repairing bridge 796 OATHA to be taken by commissioners, viewers, surveyorsand chai-carriers, 779 785, 786, 7R9 of jury for assessment of damages..........781 785, 789 794 OBSTRUCTIONS, duty of overseers to remove..795, 79' OPENING of public roads, duties of overseers concerning.792 OVERSEERS, duty of, to open and keep in repair township roads78 to cause labor of person immediately interested to be applied to such road. 789 to order out persons liable to work on roads, between the first day of April and first day of October annually.........790 may order persons to furnish teams, wagons, carts, scr rs &c 791 when may order performance of work after first of October, shall collect fines, &C., by suit or otherwise.................791 shall expend money collected for benefit of roads................792shall return list of delinquents.................I.......792'~ shall render account of all moneys on hand at annual settlement.. 792 arid'of judgments remaining unpaid......................792' shall pay over money to successor....~........792. may sue out'executions on j ud'gments........I...........792 shall open or cau'se''to he opiened'all public roads in their district.......792~ shall repair and remove obstructions.................792. may enter'upon adjoining' la'ds'to cut timber, dig gravel, sand or stone, or to make drains.............................792shall keep such drains and ditches open.................792. shall give certificate to person whose timber, &C., shall be taken.........793. shall erect and keep up guide boards, &c., at forks' of road.. 794 meay, under direction of township trustee, purchase''t'ools, materials, and hire labor.............................. 795 shall give three days notice' to per sons charged with road tax.........796~ shall give' notice to delinquents.......................796, shall return delinquent list to trustees..............796, shall remove obstructions and repair bridges..................796, penalty for neglect of duty......1...................797''PENALTY; when, viewer,'reviewer or surveyor shall neglect or refuse to discharge duty........................788 for neglect of persons warned to work on road............. 790 796. for obstrutfing drains and ditches.......................792 INDEX. 10'89 kT~~OAD ~, ~~con~~t~~inf~u~ed. ~PAGE PENALTY for destroming or defacing ile boards or guide boards................... 794 for neglect of overseer to discharge duty................................... 797'~.PETITION, road..s.to belaid out by..... 779,783, 788 hat s eify..............a......................s779, 784 ~~~~~~~......to be signed by freeholders.................. 779, 783 to be filed by person aggrieved by location of road........................ 781 PLAT of survey to be....................................780, 786 REFUSAL to peformabor, penalty fo...... -...................... 790 RELINQUISHMEN of damages, petitioners may procure.............. 781 REMOVAL of person from oe distict to another, rights and duties on............. 790 EPORTS Of comissers and viewers on location of roads............ 78(, 786, 787'REsIDENcE of personliable to w road, how determined.................. 791 RETURN tbe madeby commissioners, viewers, and reviewers........ 780, 786, 787 REvIEw of roads where monuments have been removed and their course has become uncerin........................................... 787 SALE of bridge on contract, manner of.................. 795'See Lettinq. STREETs, avenues and lys'in cities, towns, and villages declared public high~~~ways........................................ 793 UIT, proceedingsin, on appeal from decision of county commissioners 782 to be brouht by overseer against persons who negqect or refuse to work on roads 790 also to clect l fines, forfeitures,&c., accruing under this act................ 791 trustee to order oversee to'bing agiinst delinquents. 792 r for neglect or.misconduct.................... 797 trustee shall bring ag-ainst overseer for negl,,ect or misconduct.797 "SURVEY of Roads, method of...............780, 786, 787, 789 ISURVEYOR, to tak., oath.........779, 789 duties of....................... 780, 786, 78'7, 789 to be juror in assessment of damages on county road.. 787 penalty for refusal or neglect of duties.....................788`TAX for road's to be levied by co-unty comm-issioners at Oct. meeting........795'if not'paid "by first of September, to'be returned to trustee as delinquent.. 796'T EANIS, overseers may order persons to furnish...........791 overseers may hire, when.........'.......795'TinuBER, overseers may cut and carry away from lands adjoining or near road..792'overseers shall g~ive a certificate Showing quality of and amount taken, when demanded............................ 793'TIMEuF, whenever it shall happen that the two days' labor are not performed in proper time, on account of sickness, overseers may extend time........791'persons called on to woirk on road shall ap pear at~ lace apponeattehu of eight o'clock A.M...........791'OLoverseer may order persons to lhrnih79 ovrseer,'by dir ection of trustee., myprhsorterwis proure795'TOWNSHIP, notice to be posted up in three public places in, previous to petition fo r road being, presented...I.........784 person neglecting or refusilng to wor'k roads,,to be sued -in his proper township. 788'TOWNSHip Roads, persons desidnog to have laid out, may petition county commissioners..................................788 how laid out and estdAbished......................-788 TnE- or monument, each mile to be marked on....... 78,0, 786 ~~~~1090 ~INDEX. ROADS, continued.PAE REEor monument, if same removed, so that course of road uncertain reviewers may be appointed, to review and straighten................787 TRUSTEES, township, shall cause all fines, &c., paid into township treasury, to be expended on roads and bridges in same township..............788 money ollected by overseer to be accounted for as annual settlement with 790 792 countyclerk shall deliver to, account of road tax due from each person795 shall expend money received from county treasury, in building bridges or repairin roads of township......9............................. if for the building of a bridge, twenty days' notice to be given..7..95 shall prosecute all offences against provisions of section fifty-six.. 797 Vn for a jury, judge shall issue, when appeal taken from decision of county commissioners....................................... 782 VIEW of road, when persons petition for damages............................ 8 where road to be altered or new one to be established...8.....VIEWERS of, duty o when road to be laid out...*...... 78..5..... shall survey the road under the direction of...... 8 ma aminister oaths............... 78. shall make separate report, showing amount of damages, if any, assessed 787 whe road on county line to be established, commissioners to appoint, to view the sa me... 787 on refusal or neglect to perform duties, without satisfactory excuse, shall be fined......-.................. 785, compensation of $2 per day.........................78. WEDNESDAY first of the month, road commissioners to meet on.... 779 WIDTH of Territorial roads, six'ty-six feet.................... 7 8 0 reviewers to decide,, of county roads.................... 78fi WORK on county roads,. male persons between 21 nnd 50 years of age liable to 2 days every year......................7 90 overseers to order out persons,, to perform between first of April aid. frst of Oct. 790~'WRITING,1 decision of jury on appeal, to be in...782.; viewers' opinion, in favor of or against road, to be in.............. 785' ROM AN NUMERALS to be taken as, prt of th-e English language....,..837 S,~ALARIES. Oh. 180. AsSocIATE Justices, fifteen hundred. dollars...,...................801 ATTORNEY General, ten hundred dollars............... 801 AUDITOR Of State, fifteen h ndred dollars................................. 8021 CHIEF Jsti eeighteen hundred dollars.......................... 801. CHIEF Clerlk of the Rouse, five dollars; per dtay.................801 ten cents per folio for transcribing journals....801CLEtRKS, subordinate, three dollars per, day............... 80111 DOOR KEEPERz, three dollars. per da y.........801 GOvERNOR,,twvo thousand dollars.............800 JUDGES of District Court,. fifteen hundred dollars...8........ 0i LEUTENANT Governor, six dollars per d!,ay and mileage............. 800 MESSENGERS, one dollar and fifty cen~tsper day....02.. S SEcRETARY of Senate, five dollars per da~y;. tenl ceu-ts per folio for tran~scribing the SECRETARY Of State, fifteen hundred dollars..........80... SPEAKE R of the~ I-ouse,, three dollars per day additional................801 SPE AKEIIvro tern, same as Speaker............................... 801. INDEX. 1091 ~~~~~~~~SALARIES, co~~ntinued.~ ~PAGE SUPERINTENDENT, twelve hundred dollars.............................. 801 TREASURER Of State, twelve hundred dollars.............................. 801 SALARIES of State Officers, Judges and Justices, when to commence.......... 802 SALES. See Code of Civil Procedure, Taxes, Executors and Administrators, Strays, Real Property, Liens. SALT SPRINGS, and land adjoining, granted by Congress.............. 77 SCHOOL FUND, manaement and investment of. See Funds. from tax of 1861, distribution of. Ch. 182. to be refunded to counties where collected.............................. 121 SCHOOLS, sections 16 and 36 reserved for.................................47, 76 where such sections disposed o other lands equivalent granted............. 77 SCHOOLS, COMMON, five perentum of public lands applied to.................49, 76 500,COO acres of land under Act of 1841, applied to.............. 49 legislature shall establish.................................... 61 and schools of a higher grade.......................61 lands granted for, shall be a perpetual State fiuend......................... 61 interest of fund shall be disbursed by State Superintendent................ 61 no distinction shall be made in, between males and females................. 56 must be held in district three months to have benefit of school fund......... 61 lands shall not be sold unless authorized by a vote of the people............ 61 money from military exemptions, fines and strays, shall be applied to........ 61 Sethe benefi of comporation schools........... 83 SCHOOLS, COMMON. Ch. 181. AGES within which pupils shall have the benefit of common schools.......813 ANNUAL meeting of school district, when shall be held.............809 if not held, special, may be called.....................809 APPARATUS, tax may be voted to purchase..................807 librarian shall have charge of.......................812 APPENDAGES for school house district, board shall provide............813 APPORTIONMENT Of State school fund, shall be made by the State Superintendant..............................803, 817 of county school fund, by county Superintendent..............804 ASSESSMENT rolls, when district board may apportion thereon.........814 description of property therein for each district to be certified by county clerk to clerk of school district.......................816 BOARD of Directors of union schools, how constituted.............816 powers and duties of.........................816 BOND, district treasurer shall execute, to be approved by director and clerk....811 oR failure of treasurer to execute District Board shall appoint........811 state treasurer shall execute as treasurer of school fund...........819 Booics, papers, &c., S:tate Superintendent shall deliver to successor within ten days...............................80-i district clerk shall record proceedings of his district in............809 and enter therein copies of all reports made by him to county superintendent.. 809 BRANCHES, what, shall be taught in every school district............813 CERTIFICATE, county superintendent shall give to teachers qualified.......805 CHILDREN over five and under twenty-one years, county superintendent shall apportion school money in proportion to nunmber of.............804 white aud colored, equal educational advantag es secured to.........807 1092 INDEX. SCHOOLS, COMMON, corninued. CIHALLENGE of person offering to vote at district meeting808 CITIES, public schools of, entitled to school funds, provided, &c817 CLERK of district shall record proceedings in a book which district shall rovide.. 809 shall be clerk of district board...........810 shall give ten days' notice previous to annual or special meeting.810 shall draw orders on district treasurer... shall make out tax lists................810 shall make report to county superintendent810 shall designate, in annual report, number of children in district.811 shall enter in tax lists, what...........814 signing a false report to superintendent, a misdemeanor, punishment.819 penalty of, for neglect or refusal to deliver records, books, &c., to successor.... 820 CLERKC of the union district shall report to whom.817 COLLEGES, &C., reports of trustees of to be filed and preserved by stae superintendent of public instruction.........802 CLERK of board of education, of cities, shall make report to county suprintendent...........................817 CONTRACTS with teachers, dictrict board shall make.813 shall be in writing; shall specify teachers' wages813 shall be filed in the district clerk's office...13 COUNTY, state superintendent shall visit each county in the state once a year.... 802 county superintendent shall divide into districts804 COUNTY Clerk, oath of county superintendent shall be filed inoffice of.804 shall give notice to county commissioners of vacan in office of county superintendent.............................800 shall make out for each district a list of all taxable property therein.. 816 COUNTY Commissioners shall fill vacancies in office of county superintendent.... 800any person may appeal to if aggrieved from alteration of school districts....814COUNTY Superintendent, reports of; shall be filed and preserved by' state superintendent.............................802 shall have charge of the common school interests of the coun'ty........804 shall divide the county into a convenient number of districts.........804 shall apportion school money to districts..................804 shall visit each district in the county, at least once each term........805 shall exam ine te achers and give certificates to those found qualified to teach... 805 duty of, upon formation of new district................805, 813 shall make and transmit to the state superintendent annual report......805 shall deliver books, &C., to successor.................. 806 vacancies in office of, county board shall fill................806 vacancies in district board shall be filled by county superintendent......813 duty of, when necessary to form a new district lying partly in two or more counties.............................. 8 14 refusing, to make and deliver report to state superintendent, liable for amiount' thus lost to county.820 DELINQUENT taxes for school purposes on real estate in school districts county treasurer shall collect..........................818 DIRECTOR, district, shall preside at district meletings; shall sign orders and appear in all suits for or against district....................809 shall bring suit on bond of district treasurer, when............. 811 INDEX. 1093 SCHOOLS, COMMON, contiued PAGCM DISTREss and sale of property, when district treasurer shall collect delinquent taxes by.814........................................... 81i DISTRIUTION Of the income of the school fund among the several counties shall be made annually.817..................................... S17 DISTRICT Board, what officers shall constitute............... 0.............. S08 when officers constituti shall be elected, dis rict deemed organized........ 808 when duty of to determine length of time a school shall be taught whether by male or female teacher &C...................................... 809 district clerk shall be clerk of..................................... 810 shall procure site for school house, &c., when so directed by meeting........ 812 when shall estimate value of and apportion taxes on real estate............ 814 may order money improperly collected, to be refunded.................... 81 DIsTRICT Meetin first superintendent shall post notice of.................. S05............................. 807 powers of............................... 807 who entitled to vote at.........................807 director shall preside at............................................... 809 DISTRICTS, county superintendent shall divide county into................... 804 whenever new district formed, superintendent to give notice of such formation,..describing.... its boundaries, &C...................... 805, 813 who qualified to vote at district meeting................................ 807 officers of shall be a directr, a treasurer, and a clerk..................... 808 shall be bodies corporate...................................... 808 director of shall preside at all district meetings................. 809 what branches shall be taught in......................................,813 lying partly in two or more counties.................. 814 ESTRAvS, proceeds of sale of, used for school purposes.............818 EXAMINATION of teachers, county superintendent shall make......... 805 EXECUTION shall not issue onl judgment agatinst school district..........820 F INES, forfeitures, &C., due the county for school purposes, county treasurer shall Coll ect...............................818 collected by court of competent jurisdiction................820 FORFEITURE of $10 by person elected to office of district director, treasurer, or clerk and refusing to act.........808 FORMS for making reports, &c., state superintendent s~hall, prepare for use of common school officers........................ 803r GRADED schools, how founded.......................816 JUDGMENT obtained against school -district, district board shall levy for payment thereof...............................820 but no execution shall issue on.....................8210 JUSTICES of the Peace shall have jurisdiction where school district a party....820 LIBRARIAN, district board may appoint....................812.shall take charge of school apparatus belonging to district...........812 LIBRARY, district board mnay make rules and regulations relating to........812 MONEYS apportioned to county, county treasurer shall apply for, and receive of state treasurer...........................818 county treasurer shall pay over to district treasurers on application......818 due county for school purposes, from fines, &c,, county treasurer shall collect 818 X\OTICE of formation of new district, county superintendent shall give...... 8 0 5 1094 INDEX. SCHOOLS, COMMON, continued. AG NOTICE, of vacancy in offices of county superintendent county clerk shallgive to board of commissioners.............806 of special meetings shall be given......809 NOVEMBER, between the first and last days of county superintendent shall make report to State superintendent........805 OATH, State superintendent shall take, where filed802 county superintendent shall take........804 taken by person challenged at district election808 OFFICE of State superintendent shall be kept at the seat of government.803 of county superintendent, vacancy in to be filled by county board806 OFFICERS, what district meeting may elect..807 when elected, district deemed organized...08 penalty for refusal to accept or neglect to perform duties.808 PENALTY, if money be lost to any district from neglect of treasurer.812 for refusal to deliver money............818 for signing by county clerk false report to county superintendent.819 for neglect of county superintendent to make annual report to State sup't 820 if State superintendent receive bonus friom book publishers820 PUBLIC MONEY. See.Mon1!eys. REPORTS, of county superintendents shall be flied and preserved by State supt.. 802 forms for making, State superintendent shall prepare. 803 State superintendent shall make annually to the Leislature..103 county superintendent shall make annually to State superintendent.. 805 what it shall contain..............05 clerk of district shall make annually to county superintendent.........810 when school district lies partly in two or more counties...........811 district treasurer shall make to annual meeting...............81.2 clerk of board of education in cities shall make to county superintendent....817 of school moneys on hand, State treasurer shall miake to State superintendent. 819 teachers shall make Out and file with district clerk.............819 penalty f'or making false to county superintendent............. 810 SCHOLARS, -number of attending schools, report of State sup't shall contain....803 district board may admit from other districts................813 SCHOOL FUND', State, income of to be distributed annually...........817 of what it shall consist.........................818 SPECIAL MEETINGS, may be called by any member of the district board, or by any five legal voters.........................809 wha~t may be determined at......................809 notice of shall be given.......................809, 810 STATE SUPERINTENDENT of Public Instruction, how chosen and term of office.. 52 vacancy in office of, how filled.....................53 shall make report to the governor ten days before each regular session of the legislature.............................54 shall have supervision of school fund................I...60 shall disburse interest of school fund to counties..............61 shall be custodian of records of school funds. See -Feeds. educational interests shall be under management of.............802 Shall take oath....................I........802 INDEX. 1095 ~SCHOOLS, COMMON, ~C~~on~tinu~ed. ~PAGE STATE SUPERINTENDENT shall visit a county once a year.................. 802 shall file and preserve reports of county superintendents................... 802 shll recommend text books...................................... 802 shall prepare forms for use of district officers............................. 803 shall cause school laws to be printed in pamphlet form, for use of common school officers.803....................................... 803 shall apportion school money on first Monday of February, annually........ 803 shall have an ofce at the seat o government............................ 803 county superintendent shall make annual report to....................... 805 state treasurer shall hold school moneys subject to order of 818 penalty for receiving bonus from book publishers...820 oo publishers................ 820 STATE TREASURE, shall receive annual income for schools, and hold the same subject to order of State superintendent.............................. 818 shall pay over money to county superintendent on order of State sup't.......819 shall execute bond for faithful discharge of duties as school treasurer....... 819 TAXES, for school purposes, district meetings may vote...................... 807 collected by the State for school purposes, to be distributed annually........ 817 union district may levy for purchase of buildings for school................. 817 district board shall levy forpayment of judgment against district........... 820 TAX LIST, clerk of district shall make out................................. 810 what shall be entered therein...................................... 814 EAHES county superintendent shall examine........................... 805 district oard sall contract with and hire.............................. 813 shall make report.819....................................... 819 if he neglect, shall forfeit wages.....................819 TENANT, paying district tax may charge amount to owner, unless, &c......816 TERMI Of schiool, county superintendent shall visit district during each......805 TfEXT BOOKS-, State superintendent shall recommend the most approved.....802 TREASURER, county, how shall enter unpaid taxes on assessment roll.......815 shall apply for and receive from State treasurer all moneys apportioned to his county..............................818 shall pay same over on application of district treasurers............818 shall collect all moneys due the county for school purposes, from fines, &c.... 818 shall coilect delinquent taxes on real estate in any district..........818 penalty for refusal to deliver school moneys to county superintendent.....818 of school district; shall execute bond..................811. on failure to give bond, or being, unable to act, district board may appoint.... 811 shall possess what powers in the collection of taxes.............815 fine for neglect or refusal to deliver books, &c., to successor.........819 shall apply for and receive from county treasurer all school moneys apportioned to his district...........................811 shall execute warrant of district clerk to collect taxes............814 See Taxes, Oh. 197-28, 31, 32. of-union district; district treasurer shall pay over money to, when......817 UNION DISTRICT; graded schools, how founded...............816 Powers of board of directors of......................816 entitled to ane equitable share of school funds................816 m1ay levy taxes to purchase buildings, &c.................816 treasurer of, duties..........................817 1096 INDEX. SCHOOLS, COMMON, continued. PA UNION DISTRICT; duties of clerk of........817 any district mnay establish graded schools. 817 UNPAID TAXES, how collected............815 VACANCY in office of county superintendent, county board shall fill by appointment 804 in district board, county superintendent shall appoint.81 VISIT, State superintendent shall, every county.802 county superintendent shall visit school districts805 VOTE, who entitled to, at district meeting. 807 person challenged, oath tendered to......808 WARRANT, clerk of district shall annex to tax lists.810 shall comnmand treasurer to collect.......811 where may be executed.................15 SCIENCE, MEDICAL, an act to promote, Ch. 183. professors, &c., may have bodies of condemned criminals.821 bodies claimed by relatives shall not be used821 if any person, in their last sickness, express a desire to be buried, the body shall not be taken.......................821 bodies subsequently claimed, shall be delivered up821 bodies shall be decently interred, after they have subserved the purposes of urgical study........................821 shall be used for medical and surgical stud alone.821 shall not be removed out of State........821 violators of this law shall be deemed felons.821 SCRIP, county and State treasurers prohibited from dealing in, Ch. 206 See Orders, County. SEAL, word shell include what........................837 all courts of record shall have..I....................5 SEAL OP STATE, governor shall keep....I.................52 Secretary of State may use, in verification of his official acts.........828 SEAL, of district court, how procured.........454 of probate court,'county commissioners shall furnish..;.~.. 466 notarial. See LXotari~es Public. cemetery associations may have..................... 118 necessary'to authenticate acknowledgment taken. before a justice out of the State, 355 certificate of acknowledgment may be under or otherwise...........3 56 county board shall have, and may alter..................4130 SEAL OF COURT, forgery of. See Crimes and Punishinwnts. SE X.LS, private, abolished..........................35 1 SEARCHES AND SEIZURES, unreasonable prohibited..............51 SEAT OF GOVERNMENT, how shall be located...............69 SECRETARY OF STATE. See State Qfflcers8. SEIZIN of land, what to be deemed......................3504 SENATE, to try contested elections of State and judicial officers..........505 See -EYlections, Contested. to try- impeachments, Ch. 110. See Inmpeaclmenets. powers in the appointment of military officers. See ]lifiiitia. SENATORS,'STATE, apportionment of.................... 84 of the United States, to be elected in joint convention of both houses, Ch. 40. SETTLERS upon land without legal. right thereto, proceedings for the removal of.. 823' INDEX. 1097 ~~~~~~~~SETTLERS,~ ~ con~lt~if~ed ~PAGE penalty.................................... 823 warrat may be issued for arrest of such person.......................... 824 SLANDER. See ode Civil of rocedre. bee Code of Criminal Procedure, ~SLAUGHTER HOUSES. See Xiisnces. SLAVES. See Organic Act. SLAVERY prohibited.................................................... 50 SOCIETY, STATE AGRICULTURAL, or zation and powers of.................... 824 value of property which may be held by................................ 824 officers, b-laws, &C..................................... 825 SOCIETIES Aricultural and Horticultural, formation of, Ch. 186. any ten or more persons may form an agricultural society.................. 825 articles of association to be filed with the secretary of the State............. 825 a-ricultural society shall state what.................................. 825 socity shall be a bod corporate................................. 825 no two societies sall assume the same name............................ 825 may have a common seal.................................... 825 &C. may purchase and hold real estate not exceeding $50,000 in value, and personal estate not to exceed $10,000 in value............. 825 may make by-laws.825....................................... 825 who shall be eligible to membership.................................... 826 officers shall be elected annually, their duties............................ 826 ma hold fairs and exhibitions, and distribute premiums.................. 826 there shall be but one county society in any one county, and but one town societye.................................... 826 SOLDIERS shall not be quartered, where...................51 shall not vote at elections........................60 SPEAKER OF. HouSE or REPRESENTATIVES, when shall act as governor....... 3 "4STATE,,'2 moaning of the word, when applied to different parts of the United States, 837 shall not be a stockholder in any bank..................67 how may contract debts.........................65 shall not be a party to internal improvements...............66 STATE OFFICERS, an act defining the powers and duties of certain, Ch. 187. ATTORNEY GENERAL, shall take oath and give bond.............835 which shall be filed in office of Secretary of State............. 835 shall appear for the State, and prosecute and defend all actions in the supreme co~ur't,,in which the State is interested.................835 shall prosecute official bond of officers, when............... 8135 shall consult with and advise district attorneys..............835 shall give his opinion in writing, without fee, upon questions of law submitted by legislature, governor, &C......................835 shall prepare drafts, &c., for use of the State................836 shall report to the legislature when requested............... 836 shall pay all moneys received by him, into the State treasury........836 shall keep a record of all actions prosecuted or defended in behalf of the State. 827 when interested, or sick, or absent, court may appoint............836 person appointed shall have same power, and be entitled to same fees..... 83 6 salperform such other duties as required by law..............836 how chosen, and term of office.......................52 vacancy in office of;how filled.....#I....53 1098 INDEX. STATE OFFICERS, continued. PAGE AUDITOR OF STATE, shall take and subscribe a oath831 shall enter into bonds in the sum of $10,000.831 shall keep official seal.................831 shall keep accounts with other States, &c.8 shall audit accounts of public officers.....831 shall issue his warrant on the treasury for amont of compensation ofofficers, &. 83 shall keep record of warrants by him drawn.831 shall personally sign warrants, &c........................ shall make a list of accounts by him audited.32 shall make out and present to the governor, ten days before each regular session of the legislature, a report showing amount of warrants drawn on the treasury, 832 shall suggest plans to improve revenues...32 shall transmit forms and instructions to county commissioners.832 shall make accounts against collectors....832 how chosen, and term of office..........52 may issue duplicate, if warrant lost......33 shall report annually to the legislature of the expenditures to be defrayed for the ensuing year... 83.................3 shall annually examine books and accounts of treasurer, and report result to the governor......................... shall be ex officio librarian. See Librarian. shall report to legislature number of soldiers &.. 719 shall make report to governor ten days before each session of the legislature. shall not countersign bank notes to a greater aount than the value of stock deposited.67 to receive deed of land from Topeka Association, for capital purposes.....116(3 GOVERNort, shall notify house of approval of acts and joint resolutions......826 shall notify attorney general of actions wherein the State is interested......827 may employ assistant counsel......................827 May employ counsel when attorney general is sick or absent.827..... maf)y offer rewards, not to exceed $500......827 may receive the five per centumn from U. S. treasury, &e......I.....827 shall pay same into the school fund................... 827 shall report same to legislature.....................827 is authorized to distribute quota, of arms, &e................827 shall require officers to execute bonds for arms delivered to them.......827 shall have power to appoint a private secretary...............828 sh~all order prosecution of bond.....................828 shall communicate to the legislature unnual reports of all the State offleers.. 828 Lnuaeauditor shall be, ex officio................... 8033 regulations of the library.........................834 duties of.............................. 8341 if books are injured, how reparation to be made............ 834 shall report to the governor ten days before the annual session of the legislature, 834 shall make out a catalogue of hoods, &C., in the library...........835 shall make out and post rules and regulations of the library.........835 PaESIDE-NT of the Senate shall certify to compensation of Secretary of Senate.... 831 SECEn TARY Of the. Senate shall certify- to compensation due members and Officers of thme Senate, with the exception of his own.............. 8310 SECRETAnY OF STATE, shall take and subscribe oath and give bond..828 INDEX. 1099 ~~~~~~~~~~~STATE OFFICERS, ~ continued.~ ~PAGB SECRETARY OF STATE, shall have access to the great seal of the State.........8. 28 shall keep record of official acts of the executive department................ 828 shall countersign all official acts except, &c., done by the governor.......... 828 shall have custody of books, &c...................................... 828 shall keep accounts open to the inspection of the governor, &c............... 828 shall report annually to the gove Dr................................... 828 shall furnish inormation to the governor, &c............................. 828 shall copy laws, resolutions, &c., when required.......................... 828 shall e charged with safekeeping of all enrolled laws and resolutions........ 828 shall not allo any of same to be taken out of his office, unless, &c,, under penalty of00.128............................................. 128 shall keep his office open during business hours........................... 828 what hall be depositedin his office...................................... 829 may appoint a clerk for whose acts he shall be responsible.................. 829 shall cause the enrolled laws, &c., to be bound and labeled................ 830 sa. certify to printer that acts are true copies of acts..................... 830 shall cause acts of Congress to be deposited in State Library................ 830 shall furnish books, stationery, fuel, &c., for use of Executive officers and Leg~~islature................................................ 8 30 shall procure halls, &c., for the Legislature.............................. 830 shall keep all desks, chairs, and other furniture of the two Houses........... 830 how chosen and term of office......................52 shall countersign coi missions,...................... 53 vacancy in office of, how filled..........................................53 shall report to the governor ten days before the session of the legislature.....54 shall record certificates of incorporation..............365, 372 shall procure seals for district courts.. 454 shall certify amount due for transcribing journals of the Senate and House... 801 shall certify apportionment of taxes to state treasurers and county clerks....512 duties of; in relation to public printing. See Printing. SUPERINTENDENT of Public Instruction. See Schools. See Fetnds. TREASURER OF STATE. Duties and liabilities of. Ch. 205. how chosen, and term of office.:...................5 2, 538 AccouNir, of receipts-and disbursements, treasurer shall keep.........892 shall report to legislature or governor when required the state of.......893 ADDITIONAL bond legislature may require treasurer to give...........892 BILL, on redemption of; treasurer shall require to be indorsed.........892 if presented when no money in treasury..................893 BOND, treasurer shall give; governor to approve..............892 BooKS, for keeping accounts, State shall furnish treasurer...........892 CRIMINAL ActioD, State treasurer liable to, for failing to account for, and pay over moneys..............................893 DELINQUENTS, treasurer shall be held accountable for loss by..........893 GOVERNOR shall approve treasurer's bond and securities............892 treasurer shall report to, when required.................893 INS OLvENcY of treasurer, in case of; debt of the State shall be paid. first of all debts...............................894 JUDGmENT, State may obtain against treasurer, for moneys not accounted for.... 893 1100 INDEX. TREASURER OF STATE, contiued. AG LEGISLATURE, treasurer shall submit his books, C., to the inspection of when required...8...............................893 Loss, by neglect of treasurer to call delinquents to account, reasurer accountable for...........893..... 89o3o MONEYs, public, State treasurer shall have charge of.892 treasurer accountable for failing to pay over.8 due the treasurer, shall be paid in gold or silver.89 NOTICE, treasurer shall give of moneys in the treasury for redemption of bills prsented and unpaid for want of funds..9..9 of five days, to be given to person against whom motion made.. 89 OATH, treasurer shall take..892.............. OFFICE, treasurer shall keep at the capital of State..892 PUNISHMENT of treasurer for failing to account..9 RECEIPT, treasurer shall take, of auditor for redeemed warrants deposited in office of auditor..........................9 in duplicate, treasurer shall give to person paying money into the treasury 894 authorized to refund to county treasurer, school tax for 1861.81 REPORT, treasurer shall make annually to legislature and to governor hen required.............................83 SEAL of office, treasurer shall procure......894 WARRANTS, treasurer shall receive in payment of public dues892 redeemed, &c., to be deposited with auditor.89 shall personally countersign.............832 See Taes. See Funds MIlSCELLAINEOUS duties of; State officers to report all apparent defects, &c....836 they shall deliver over to successors all books, &C., appertaining to their respective offices..........................837 the salaries of all State officers shall be paid quarterly........... 83 7 if any officer shall fail to qualify within 20 days, office deemed vacan. t t... 837 STATUTES, RECORDS, &c. Authentication of. See Authentication. See Code of Civil P rocedure. STAY OF EXECUTION. S~ee Cocle of Civil Procedure. See Justices of the Pe~ace. STEAMBOATS, liability of for obstructing ferries...............65 7 See Bouts. See Crimes and Punishmnnets. STOCK IN TRADE,"1 meaningr of -phrase.234.. STOCK, tresspassing, remedy against owners of.SeInosrs keeper of; shall have lien on......................689 An act to provide for protection of; from conitageous diseases. Ch. 189, AEREST of offender under this act, justice shall issue warrant for........840 CATTLE, diseased or distempered shall not run at large............839 diseased or distempered, shall not be driven into or through this State.....839 found at large, justice shall order consta ble to impound.......... 840 shall not be driven into or through this State from Texas, Arkansas, or the Indian Territory between the 1st da ofArladNvme. 4 CONSTABLE, shall impound diseased cattle found at large...........840 fees for impounding.....................I..... 84 or sheriff shall execute warrant for arrest of off-ender............840 INDEX. 1101 S~~~~~~~TOCK,2~ continued.~ ~ ~PAGE COUNTY, shal pay costs if defendant discharged............................ 840 DAMAGE, owner liable for, for driving cattle through this State from Texas, &c., between st day of April and November......................... 840, 841 DISEASED anials found hitched off the government reservation shall be killed... 841 trials on information, ainst the owners of such animals.................. 842 FINE not less than $75, for first offence, and not less'than $90 for every subsequent offence..................................... 840 for permitting diseased cattle to run at large........................... 839 for permitting to run at large, horse, &c., diseased with glanders, not less than....................................... 841 $5 nor more than $50..........841 shall be paid into school fund..................................... 841 IMPOUND diseased cattle at large, constable shall........................... 840 JsTIcEs of the Peace shall order constable to impound diseased cattle running at large.840............................................ 840 duy of when notified that cattle from Texas, &c., are being driven into his township.....840..................................................84 S~ClOOL-FUN r all fines shall be paid to.................................. 841 SEED animals, provisions aainst their running at large...................... 841 SHERIFF or Constable sall execute warrant for arrest of offender................ 840 SWINE, persons owning, to keep same confined.............................. 843 owner liable for daages b............................. 843 recoverable in action at law...................................... 844 any person may take up such estrays..................844 to give what notice of taking UP.................... 844 file a: copy of -notice............844';5 ys................................ 844 allowed what compensation....................................... 844 owner may have samne within sixty days by paying charges................844 A if owner does not- take swine and pay charges, title vests in taker up...... 844drovers may drive swine along highways, being responsible for damages....844 persons taking uip failing to comply with this act...............844 not to apply to certain counties.....................845.part of Atchison county exempted from the operation of this act.......845.STRAYS, TAKING UP AND POSTING OF. Ch. 194. AFFIDAVIT, taker up shall file, if stray not proved in ten days.........846 charging illegal disposition of strays....................848 APPRAISERS shall be householders.....................846 duty of...............................846 BOND, shall be given by taker up.............I........846 to be given by person to whom stray is delivered, on order of justice of the peace...............................849 BULL, jack or stallion, may be taken up at any season of the year........845 CITIZEN, person taking uip strays must be.................846 Copy of record on justice's stray book shall be delivered to taker up.......847.taker up shall deliver to county clerk...................847CouNTY to have half appraised value of stray, when title vests in taker up....847 COUNTY Clerk, copy Of record on stray hook taker up, shall deliver to......847' duty of clerk to record same......I.................847' justice shall certify to, when stray proved up...............847' duty of clerk..... **............... 847 70 1102 INDEX. STRAYS, continued. AG COUNTY Clerk, fees for recording certificate of strays.... 849 penalty for failing to perform duty under this act.849 COUNTY Commissioners, duty of in reference to strays848 DESCRIPTION of Strays, notices of taking up shall contain846 appraisers shall make, of strays.... 846..... ENTRY, of certificate that stray has been proved, county clerk shall make847 EXPENSE, how decided................. 847 FAILURE, of county clerk to perform duty under this act, penalty.. 88 FEES, of justices under this act............9 FINE, for selling stray before title vested in taker up.848 for unlawfully taking up stray..........848 for violation of this act.4.....................9 shall go to county school fund..........8....49 HOUSEHOLDERS, appraisers shall be........................ 6 JURY, trials under this act to be tried by, when849 JUSTICES shall have jurisdiction in their respective counties.848 penalty for failure to perform duty.......9 shall ascertain value of stray............846 bond of taker up to be filed with........846 affidavit of taker up to be filed with......846 shall summons householders to appraise stray846 shall order stray to be delivered to owner, when847 LIABLE for loss, taker up shall not be.......849 LIEN, when county shall have on strays....848 NOTICE, taker up shall give.......................... l OWNER, how and in what time shall prove their property...........847 PREMIISES, if owner of fails to take up stray, other person may take up......84-6 REPLEVIN, writ of, may issue against person disposing of strays........848 REWARD, what allowed for taking up strays.................84:9,SHERIFF shall collect amount due the county, when title of strays vests in taker up...............................848 STRAYS, if not claimed in ten days, duty of taker up..............846 to be appraised by three disinterested householders.............846 taker up may use with care, &c......................847 how owner shall prove.........................547 penalty for selling..........................848 penalty for unlawfully taking up.....................848 duty of county commissioners in regard to.................848 money received from to be applied to common schools..........61, 818 what reward allowed for taking up................I....849 taker up not liable for loss of.......................849 STALLIONS over two years old may be taken up at any time...........845 when may be castrated or killed.....................843 penalty for'permitting to run at large...................843 TITItE Of Stray, when shall vest in taker up................. 847 WRIT of replevin, may issue against person disposing of strays..........848,STOCKHOLI)ERS of Corporations, shall be individually liable.......... 6 SUFFRAGE. See Constitution. SUMMONS. See Code of Civil Proeedure. See Tustices of the Peace. INDEX. 1103 PAGE SUNDAY when reckoned in computation of time............................. 229 penalty for selling liquor on that day. See Dram Shops. See Crimes and Punishments. SUPERNTENDENT OF PU IC INSTRUTION. See Schools. See Funds. of asylum for poor. See Poor. SUPERSEDEAS, SupremeCourt may issue writs of......................... 449 SUPREME COURT. See. Courts, Spreme. See Code of Civil Procedure. See Code of Criminal Procedure. SURETY may require principal to be sued, when............................. 351 See C1ontracts an Promises. SURVEY of land claimed as homestead. See Exemptions. SURVEYORS. Act defining the duties of County Surveyor. Ch. 196. ADMEASUREMENT of dower, surveyor may be employed in.................... 482 BILL Of Costs expenses of chain man and corner man to be taxed on........... 855 BOND, county surveyor shall execute..................................... 850 any person aggrieved may institute suit on............................... 851 Boos, what, county surveyor shall keep...82.............................. to e paid for by the county.......................................... 856 CENTER C h ow.................................. 853 CHAINEN, disinterested persons to e employed as......................... 855 COUNTy Board of Commissioners ma dismiss surveyor from office (if incapable, ~&c.a apota........................................ 855 surveo to subsribe oath before clerk of............................... 850 person wishin to have county surveyor removed from office shall file petition with clerk of................................................... 855 COUNTY Treasury surveyor may demand order on to Jay for books.......856 COUNT shall direct resurvey to be made by some other person, when survey)orl interested, &c............................854 DEPUTIES, surveyor may -appoint,.....................851 and shall be respon'sible for acts of....................851 EVIDENCE,, when any survey, or surveys to be, in any court, duty of surveyor... 852 certified copies of surveyor's plats to be...................857 FIELD'Notes shall contain a full statement of surveys..............852 and plats shall be procured of surveyor general................856 IRDICTMENT, persons interfering with surveyor in the discharge of his du ties. may be prosecuted by...........................854 LATITUDE and Departure, all calculations to be made by............ 8531 MAGNETIC to be compared with true meridian four times a year.........852 MAGNETIC Needle, variations of; to be shown in surveyor's plats....853... MISCONDUCT Of Surveyor, remedy for, by suit on bond.............851 MISSING Corners, how to be established....................3854OATH required of surveyor.........................850 of deputy...............................851 of witness to prove corner or line..................852 of chainmen..............................855 PETITION to be filed for removal of county surveyor...............855 PLATS, variation of magnetic needle shall, be marked on.........;....853 PLATS and Field Notes, county surveyor shall procure certified copies of, of surveyor general............................856 SECRETARY Of State, comparison of magnetic with true meridian, to be filed with'852 ~~~~~1104 INDEX~ SURVEYORS, contitued. A SHERIFF may be called on by surveyor, to remove persons interfering to summon surveyor, on complaint.......................... 85 S may be instituted on bond.............................851 surveyory collect fees by................85.. SuRvEY, )owto be made........................................51 of land claimed as homestead.............................. 4 TAXES, lands sold for shall be surveyed, when............................ 54T Of officof surveyor two years............................... 85 UNVEaSI, comparisons of magnetic with true meridian to be fied with resident.of........ 85. See Counties and County Offlcers. See Roacds. S:WINE. See Soc Swvine. TAX, STATE, for the year 1862, five mills and fifty cents capitation. Ch. 17 See Revenue. 5e. for roads, levying of. See Roads. See Counties and County Officers. for schools. See Schools. for licenses. See Ferries. See Dram Shops. title, occupying claimants under, entitled to value of improvements.12 judgment against county shall be paid by..................410 for military fund.......................................71 TAX, judgment against school district to be paid by................ 803 AX DEEDS IN THE CITY ON LAWRENCE. Ch. 79. See Taxes. AXATLON, Leg~islature shall provide a uniform system of....................... 6 what property exempt from....65, 875a homestead exemption.......................69, noebills and other property, employed in banking, shall be subject to.... 656 of each year shall be sufficient to defray current expenses.......... 65.. TAXES8 shall be applied to the objects for which they are raised......... 65 for the payment of public debts shall be provided, by the law incurring them. 65, commissioners of Miami County authorized to correct. Ch. 201. delinquent Territorial, certain counties required to collect. Ch. 200., certain land released from, as a town site.. Ch. 202. equalization of. See Eyqualization. land sold for, when shall he surveyed. SeSurveyor. of Davis County for 1861, legalized. Ch. 13. county board to apportion and order the- levying of............41a delinquent, levy to be made to make up....73........&... for purchase of land, &c., for asylum for the poor. See Poor.' township clerk to certify amount of levy to county treasurer........435, See Coutnties and County Officers. See Corp.orations, Cities. See Schools.- See Equalization, Board of. See Revenue. TAXES, assessinent and collection of. Ch. 197 ABSTRACT of assessment roll, county clerk shall make and forward to auditor of State............................. 86& what it shall contain..............I............863, ACKNOWLEDGMENT of tax deed to be made by county clerk..........877 -ADMINISTRATOR to deliver to assessor statement of taxable property belonging to estate......,.............................89 INDEX. 1105 T~~~AAJ5_XES~~ con~~i~nued.~ TPAGM ADVERTISEMENT shall be made by county treasurer of lands subject to sale for taxes........................................ 866 of unredeemed lands........................................ 877 AFFIDAVIT to be made by printer to account for publication.................. 866 shall be made by county treasurer of posting of tax lists................... 866 may be made that poor person is unable to pay tax...................... 871 to be made by person whose lands are erroneously taxed.................. 873 AGRICULTURAL improvements exempt from taxation......................... 875 APRIL first, property subject to taxation from that date.................. 876 EMENTS to be made once in three years............................... 880 rolls to be furnished to assessor by county clerk........... 876 to be examined and corrected b county commissioners.................. 863 abstract of to be made by county clerk................................... 863 county board may enter on lands which have been omitted by assessor... 873 AssssoR, when shall make nt.................. 876 when shall make returns.................................. 863, 876 may require oath of person claiming to have no taxable property............ 877 shall examine on oath persons who may have knowledge of property withheld from assessment................................................. 860 if unable to obtain positive evidence, shall assess from such knowledge as he ~may obtain~............................................. 861 shall, on demand of any person, deliver copy of assessment................. 861 shall leave copy when person assessed shall be absent..................... 861 shall file and preserve certificate................................. 862 shall make a correct list of taxable property, to be, called tax roll........862 shall assess property omitted in previous assessments.8613 shall when making assessment make enrolhient of persons liable to military duty 700 AUCTION, lands upon which taxes shall remain unpaid shall be sold at......866 BENEVOLENT institutions exempt from taxation................875 BOOK accounts subject to taxation.....................861 BOND to be given by persons claiming to have lost tax certificate on payment to him of redemption money........................870 BONDS subject to taxation................876 BURYING grounds exempt from taxation....................875 CATTLE, two yoke exempt from taxation... 875 -CERTIFICATE of tax statement to be delivered to owner of property assessed.... 861 original to be filed............................862 -of tax purchase to be given to purchaser..........867 shall be assigfnable..........................867 if acknowledged, may be recorded....................867 to be made when county purchases.....867.subsequent taxes paid by purchaser to be endorsed thereon.........868 to be surrendered on payment by treasurer of redemption money.......869 if lost, treasurer may pay, apon execution of bond to refund.........870 of redemption to be issued when lands sold for taxes shall be redeemed.....876 shall be authority for county clerk to execute deed.............879 CHRnCHES, property of exempt from taxation.................875 CITIES not prohibited from levying taxes on improvements under $500......874 public property of exempt from taxation...............875 1106 INDEX. TAXES, continued. PAG CITIEs, taxes in may be redeemed with scrip..... 876 shall ill no case sell lands for taxes......864 city taxes may be placed upon tax roll and collected by county treasurer 864 See Corporations, Cities. CORPORATE property of counties, cities, school districts, &c., exempt from taxation 875 Costs of publishing unredeemed land included in deed...877 tender of must be made by person desiring to redeem.. 879 may be recovered of person sued for default of payment of bid...867 COUNTY, if purchase be made by, redemption may be made with warrants. 876 when land bid off by, certificate of purchase shall be made to 867 COUNTY BOARD of equalization, their powers and duties...863 COUNTY CLERK shall furnish assessor with assessment rolls... 87 shall keep a record of the proceedings of the county board of equalization. 863 shall make and transmit abstract of corrected assessment rolls to auditor of State 863 shall place levy of city taxes on county tax roll.864 shall place delinquent city taxes upon tax roll.864 shall make out a complete list of taxable property of the county, and the value thereof, as equalized................ 4 shall determine sums to be levied upon each tract of land...865 shall charge treasurer with amount of taxes on the roll... 86 shall not convey land erroneously sold....871 COUNTY COMMISSIONERS to form board of equalization..86 shall determine amount of county taxes to be raised, also, for schools and other purposes...................86 Shall cause money received on invaiid sale to be refunded.......... 871 shall cancel tax on lands not legally taxable................ 873 See Counties and County Officers. COUNTY TREASURER shall give notice of amount of tax and place of collecting the same...............................866 shall give receipt for taxes...................... 865 may receive taxes at all times.....................4135 shall make out list of delinquent taxes and give notice of tax sale.......866 shall make affidavit of posting of such notice................866 his proceedings in sale of land for taxes...................866 may pay redemption money to person surrendering certificate........ 86 shall not sell land erroneously assessed...................871 shall refund money received for lauad wrongfully sold............ 871 shall issue warrant to sheriff for collection of delinquent tax~es on personal property..............................871 what property may be omitted from warrant................871 shall make payment of State taxes....................872 penalty for unlawfully exacting....................... 326 penalty for failure to make payment.................... 8E72 shall not collect taxes on lands not legally taxable............. 873 shall issue certificate of redemption....876 shall enter in book of sales the name of person redeeming........... 876 shall publish list of unredeemned land...................877 shall exact payment for lands sold for taxes, how.............. 881 not required to return more territorial taxes, than amount actually collected..- 881 INDEX. 1107 TAXES, continued. PAGE Cows, two exempt from taxation........................................ 885 CREDITS, subject to taxation............................................ 875 CROPS, not subject to taxation.......................................... 874 DEED to be executed by county clerk, form of............................ 877 DELINQUENCY of county treasurer, forfeiture, &c......................... 872 DISTRESS, unpaid taxes collected on, how.................................. 871 ENTRIES of lands redeemed to be made by treasurer and clerk................ 876 which shall be prima facie evidence in all cases.........................873 of land omitted by assessor, board of equalization may make on tax roll...... 873 at U. S. land office, to be added to assessment rolls on the first of March of each year........................................................ 880 EQUALIZATION, board of. See Taxes. See County Commissioners. EVIDENCE, entries in county treasurer's books, &c., shall be in all cases......... 873 EXEMPT from taxation, what property to be..............................65, 874 military equipments, &c............................................ 706 homestead.......................................................... 69 FEES of sheriff for collecting delinquent taxes.............................. 872 of county clerk, &c................................................. 874 FORM of tax deed..................................................... 877 GOLD and silver, land sold for taxes must be redeemed with, except when purchased by county................................................. 876 GRANTEE to pay tax if purchase made before first of April.................... 880 GRANTOR to pay if sale made after first of April............................. 880 GUARDIAN to list property of ward....................................... 859 HARNESS used for teaming exempt from taxation............................. 875 HoGs, ten, exempt from taxation........................................ 875 HORSES, two, exempt from taxation...................................... 875 IMPROVEMENTS under $500 exempt from taxation, except for city taxes......... 874 to be valued separate from land...... 875 INDICTMENT, persons subject to for delivering to assessor false or fraudulent certificate 862 INTEREST at the rate of fifty per cent. per annum to be paid on lands sold for taxes 876 IRREGULARITIES, omissions, &C., of officers not to invalidate tax sales.......... 877 JOURNAL or record of proceedings and orders of board of equalization, county clerk shall keep.................................................. 863'' LAND," to have the same meaning as real property........................ 874 to be assessed separately from improvement............................. 875 shall be described in treasurer's receipt for taxes on....................... 865 subject to sale, if taxes not paid before first day of March in each year....... 865) to be bid off by county treasurer, when................................ 867 person desiring to pay any subsequent tax on, to produce tax certificate..... 868 sold for taxes, redemption of.................................... 868, 869, 876 LAND contracts to be assessed to persons holding............................ 859 LIBRARIES, public, exempt from taxation.................................. 875 LITERARY institutions, property of, exempt from taxation.................... 8 t75 LIEN, taxes due on lands purchased by county at tax sale, shall be............ 868 LIST, of taxable property, what shall be entered on......................... 857 owner to list property, except in case of disability........................ 859 or schedule, of all taxable property in the county, county clerk shall make out 864: 1108 INDEX. TAXES; continued. LIST of land to be sold for taxes, county treasurer shall make out and cause to be published.......................866 printer shall make affidavit to publication of.. 866 of lands and lots sold, county treasurer shall record at close of tax sale, what it shall contain.....................868 Loss, of tax certificate................... 68 MINEs, &c., exempt from taxation....................... MINOR, idiot, &c., property of, guardian shall list859 "MONEY," meaning of the term under this act858 subject to taxation.....................876 NAMES, of persons to whom property has been assessed, tax roll shall contain.... 862 each separate tract of real property in each township, other than city property to be placed opposite same in book prepared for that purpose by county clerk.............................. NOTICE, of amount of tax charged for different purposes, treasurer shall post up 865 of sale of lands for taxes, treasurer shall publish for four weeks.866 printer shall make affidavit to publication of.6 all affidavits, notices and papers in reference to tax sale to be filed with, and preserved by, county clerk............868 of tax sale, fees of printer for advertising each tract other than town lot, twentyfive cents.........................874 of time when redemption will expire, fees oprinter for publishig, thirty cents per tract for all insertions............874 OATH, statement of all personal property, &c., to be verified by859 of person having no articles of personal property, moneys, &c., required to be listed, assessor shall require......................860 asesrmay examine on1, persons supposed to have a knowledge of value of articles assessed, when....................... 860 person assessed, shall take.......................876 ORDEES. See W~arrants. PAYMENT, on lands sold for taxes, how to be made..............881 of State tax received, county treasurer shall make' to State treasurer by 15-th day of January...........................872 of taxes illegally assesse d, redemption of may be made within two years... 878"' PENALTY of ten per centum shall be added on all taxes unpaid by 1st January...............................865 taxes and charges, a lien on lands bid off for county............ 868 if county treasurer fail to pay into State treasury, &c............. 872 of fifty per cent. per annum imposed on unpaid taxes.8.......... 76 PERnoENTAGE, levied by corporation, county clerk required to place on tax roll.... 8 64 "PERSONAL property," what the term includes................858 if the-re be none, required to be listed, person shall make oath to statem~ent, 860 how arranged in schedule........................864 taxes on unpaid by May 1st, to be collected by distress............871to be valued'at usual selling rates....................875 PEINTEE who publishes -notice of tax sale shall make affidavit......... 864 PURCHASE, certificate of sale subject to...................867 PURdCHASE money Of land bought at tax sale to bear interest at 50 per cent. per annum............................%.... 876 INDEX. 1109 TAXES, coo26nitinduPAGi PURCHASER of land at tax sale, treasurer shall give certificate of purchase....... 867 name of treasurer's list of land and town lots sold, shall contain............ 868 REAL ESTATE," Meaning of the r.....................8...........57, 874 and," or " real estate ".................... 8 7 4 REAL Property, same maigas "1land," r"elett.7 RECEIPT for taxes, treasurer shall give.................................. 865 assessor sll give for assessment rolls.................................. 876 RECOVERY Of lands sold for taxes, proceedings in............................. 879 REDMPTIONof lands sold for taxes, how made............................ 876 to be paid in gold or silver except when county is purchaser............... 876 EGISTER of Deeds, certificate of sale may be recorded in office of.............. 867 REMISSION Of ten per cent. shall not be made by county board after the first of Jnuary..................................... 881 RETURNof amount of taxes townhip trustees, &c., shall make previous to 10th September to county lrk........................................... 864 when assessor shall make................................... 863, 876 REVENUE for the year 1862. Ch. 175. SALE of and for taxes notice of to be published four weeks................. 866 to be cotned from day to day..................................... 866 duty of treasrer after sale..................................... 868 not to be invalid fr having been charged on assessment roll in other name than owvner...................................................... 867 lands bid off at by county shall continue liable to be taxed............... 868 ~~~~~~~for taxes not valid if taxes paid prior to sale............................. 871 when countylr sh not convey land sold at.......................... 871 land omnittled at regular sale shall be sold in Septem ber following.... 873... SHEEP, ten, exempt frYom. taxation..................... 875' SIIEIIF UFshall levy amount of unpaid taxes, On personal. property, when......871. STATEMENT of personal. property, persons sbhal make out when required by assessor...............................859 amiount OF just debts may he deducted therefrom..............860 what shall be set forth therein......................861 copy of shall be delivered to owner of property on demand.......... 896 1 STOCKS Subject to taxation.........................876 STORE, or shop, being a part of a church, not exempt from taxation....... 875 So tvs for recoveryT of lands sold for taxes limnitation of; and proceedings on.... 879 TA XXES, amount to be raised for county afnd school purposes to he dletermined by county commissioners........................ 8 631 of municipal corporations, provisions respecting.. 864 county clerk shall determine sumis to'be, levied -upon e ach tract or lot of real.property..............................865 Sections 2 and 11, town. 2, R. 15. exempt.from. taxation as a town. Ch. 202. TLAx Roll shall be made by assessor.....................862 co~py of shall be returned to county clerk before the first day of August.....8 6 3 taxes levied by municipal corporations shall be placed upon..........864wrong, descr iptiol' of property onl, not to -invalidate tax sale...........867 TENANT, may pay town, vitll,.,e or school tax, and have offset against rent... 400, 816 TENDER of money for lands sold for taxeIs, how to be made...........879 TOOLS Of mechallics exempt from. taxation...................875 TREASUR ER. $ce 0ourdy Treastirer. 1110 INDEX. TAXES, continued. PAG TRUST fund, money paid to treasurer for redemption of land to be held as...... 87G TRUSTEES of townships to return amount of tax levied by them to county clerk, before the 30th of September...................................... 864 TowssHIP, certificates of each, to be kept separate.......................... 862 UNPAID taxes on personal property, how collected.......................... 871 VALIDITY of tax sales not impaired by omissions or irregularities.............. 877 WAGONS employed in teaming exempt from taxation... 875 WARRANT to be issued to sheriff for collection of unpaid taxes on personal property........................................................ 871 WARRANTS, county, lands not to be redeemed with, unless purchased by the county.................... 876 county ~~~~...............................................8 shall be received in payment of township, county, and territorial taxes....... 881 how may be used in payment for lands bid off at tax sales.............. 881 WOOL-GROWING, an act for the encouragement of, repealed.................... 881 TAVERNS. See Dram Shlops. TECUMSEH, time extended for building the bridge across the Kansas river at, Ch. 20. TELEGRAPH COMPANIES, how incorporated........................365 lines may be established by consolidated railroad companies................ 768 TENANCY AT WILL, possession with consent of owner implies................... 354 thirty days, notice necessary to terminate............................... 355 TENANTS, occupying farms, to have notice on the first day of April.............. 354 may pay town, village or school tax, and offset amount against rent due.. 400, 816 TENANTS IN COMMON. See Landlordcs and Tenants. TERMS oF OFFICE of State and other officers................................. 500 See Counties and County OQfcers. See Towzships and Township Qcers. See Elections. TERMS, of the supreme court.............................................. 450 of the district court in the several judicial districts, Chs. 69, 70, 71, 72. of probate court.................................................... 466 TITLE of occupying claimants. See Claimrants. TOLLS of bridges and ferries to be prescribed by county tribunals..............70, 555 TOPEKA made the temporary seat of government............................. 69 acceptance of block of land from, for capitol purposes...................... 116 "TOWN," the word may mean what........................................ 837 TOWN associations, unincorporated, deemed partnerships....................... 732 interest of deceased member of, how settled. See Partners deceased. companies, how incorporated. Seee Corporations. TOWN SITES, Ch. 204. how and by whom shall be entered.................................... 889 land thus entered shall be conveyed to the town company................. 889 all persons who lay out and select a town site, deemed occupants.......... 890 when persons entering town site convey land to town company, title shall vest in purchaser..................................................... 890 when entered, deeds shall be made.................................... 890 nature of deeds, and how made....................................... 890 when a person interested in a town site may enter it..................... 890 when the right to any lot or piece of land is contested, proceedings........... 891 either party may appeal to district court................................ 891 INDEX. 1111 ~~~~~~~~~~~~~~TOWN SITES, continued. ~PAGE whe appeal is take, officer shall certify a transcript of his proceedings to the district o t........................... r.......... 891 e e b 0 ~~~~~~891 when the udge shall convey land entered to trustees...................... 891 fees of judge for entering site, &c..................................... 891 if officer refuse to execute deed, he may be compelled by mandamus......... 891 TOWNS AND CITIES, plats of to e recorded............. 119 TOWNS AND VILLAGES, act to incorporate. See Corloorations, See Townvs and Villages. TOWNSHIPS AND TOWNSIP OFFICERS, Ch. 203. See Election of Townsh ip Of icers. AcTIoNS against township, process served on trustee........................ 886 AFFIDAVIT report of trustee to county hoard shall be verified by.......... 885 ATTORNY, trustee may appoint, to defend suit against township........... 886 IBALLOT for justice of the peace shall designate whether for one or two years.... 884 wh for justice to fill a vacancy, it shall so designate.................... 889 BOY Politi, each township so declared to be..........e.................... 884 BOND, trustees slte................................884, 885 justice of the peace shall execute, form of............................... 888 to e filed in office of county clerk..................................... 889 CLERK, towship, office of abolished...................................... 886 See, Trustees. COPENATION Of trustee to e allowed by county board, not to exceed.2 per day, 886 CONSTABLS, two to be elected in each township, annually................... 884 shall take oath ain................................... 887 county hoard shall fill vaca ncies in office of.......I..........888 CONTESTED elections of township officers. See Elections, Contested. Copy of bond of justice of the peace, to be, evidence.............. 889 COUNTY board of commissioners, trustees shall execute hond to.........884 may vacate or locate highways.....................887 to approve bond of constable......................887 ELECTION Of two justices of the peace, two constables and one townshilip trustee in each township, annually.884...................M EL E cTIousT,, township trustee shall be inspector of..............884 trustee and justices to be j udges of...................887 ELECTORS to Vote for but one overseer...................887 EvIDEN cE, the approval of justice's bond by county board shall be, of its contents and execution...........................889 FonRK of justices' hond..........................888 1HaGlWAYS, trustees shall not have power to locate or vacate..........887 HIGHWAY districts, trustees shall es tablish anid make, record of.........884 JUDG-s of election, trustee and justice of the peace shiall, be..........887 on fatilure of, to meet at polls, electors shall select, viva -voce.........888 shall take oath............................887 JUSTICES Of the Peace shall be j udges of election...............887 shall hold their offices for two years...................888 shall file bonrd, within what time....................888 when elected to -fill vacancy, it shall be so designated on ballot.......889 O0ATNl trustees shall takde........................884 judges of election shall take......................887 1112 INDEX. TOWNSHIPS AND TOWNSHIP OFFICERS, continued. OATH, constable shall take..............887 888 OVEIRSEER of the Poor, trustee shall be..... Pooa, trustee shall be overseer of..........88 PRocEss, how served on township.........886 RECORDS, books, &C., of trustee, shall always be open to public inspection. 886 REPORT, trustee shall make annually to county board.886 TREASURER, township office of, abolished....886 TRUSTEEs, township, to be elected annually.88 shall hold their office for one year........884 shall take oath and file bond............884 general duties of.....................85 shall be overseer of the poor............745 88 vacancies in office of, how filled.........885 shall deliver to successor all moneys, books, &.8 to be judges of election................490 shall file with county board a statement of account of harges and services... 886 penalty for failure to perform duties.. 886.... shall not have power to locate or vacate highways887 shall be judge of election...............88 general duties in relation to roads. See Roa Is. UNDERTAKING, constable shall give.........887 county clerk shall file same.............88 VACANCrES, in office of trustee, how filled... 5 in office of constable...................88 Towv-nsnre- officers, except justices of the peace, shall hold their office for one year, 63 justices of the peace shall hold office two years..............5'8 clerk shiall certify to county treasurer. amount of township t(-ax......... 4-35 shall certify copy of assessment roll to county treasurer......... 43 Q5 See Trustees of JTownships. TOWNSHIPS, setting off; boundaries of; &c.413............. 4 1I5) TRAN SCRIPT ofjiudgmient of justice of the peace, e~ ect of filing of;, in the off-i-e clerk, of district court.........................211, 3 on petition in error.............216............ TRANSRICIPTS in criminal actions. See (Jode of C,-riminal Procedw-e. TREASON, defined............................ 51-1 two witnesse's necessary to conviction o.................. 51 what evidence shall be admitted in trials for............... 2 64 penalty for, death...........................3846 mispr-ision of; what, and how punished................3461 penalty for joining treasonable association................. 304-7 punishment for raisin — hostile flag, wearing cockade, &c........... 384 7 conviction may be had through crime committed outside, the State... 3.....147 TREA'SURER OF STATE. See State Qtficers. TREASUR ER, Co0uNTTY. See Goioaties and Count 72 ers. See Taxes. See Sckhools. TREASURY OF STATE, money shall not Ie drawn from, except unde —r,appropriations neade by law.............56............ WAkRRANTs, Treasurer shall personally countersi~gn.............. 332 TREATY OF CESSION, whereby the French Rlepublic ce-ded,he Territory ofl Louisiana to the United States......................... 02 INDEX. 1113 PAGE TESPASSES o SCHOOL ANDS, an Act to prevent and punish. Ch. 207. cutti trees &c., on school lands a misdemeanor, punishment............. 895 Justice may issue arrant on complaint, and bring offender before him....... 895 justice may require recognizance of person found guilty; in default of bail, may...................................... 895 Commit.895 du o each court to give this act in charge............................. 895 who sf s..................................... 895 district ttorney shall prosecute offenders................................ 896 damaes &C., shall be paid for use of schools............................ 896 TUTSTEES, TOWSP. See, Tonsp andl Township Qgicers. TRUSTEES of benevolent institutions to be appointed by Governor and Senate.... 62 of cemetery associations, duties and powers............................. 118 of colleges, &C. See Coqporatiolas. courches. See Gororioos, Churches. of schools in cities. See Corporations, Cities. of estate of convict for life. See Code of Criminal Procedlure. of towns and villages. ee rporations, Towns and Villages. TRUSTS AND POWERS. Ch. 209. concerning lands, shall be created in writing........................... 897 no such....................... t............. 897 record of such trust shall be deemed notice thereof...................... 897 no person interested can dispos of such interest, unless.................... 897 sales in contravention of a trust void................................... 897 when conveyance void. 897 when conveyance deemed fraudulent...................................897 when fraudulent intent is not disproved, the trust results in favor of prior creditors.............................897 when the provisions not to extend to absolute conveyance in his own nanme... 898 parties paying money to a trustee not responsible for his act.........898 fra~ud on the part of trustee not, to invalidate title..............898 when court shall appoint successor....................898 court may accept resignations......................898 when trustees may be removed.....................898 when the title is void as to trustee, and title vests in beneficiary.......898 when revocation is reserved, title to be deemed absolute in grantor......899 exercise of unauthorised power not to destroy actual power created......899 woman's rights............................899 trusts irrevocable without a reserve is made in instrument..........899 of powers to sell land under mortgages..................899 not to extend to specific powers of attorney to sell for another........899 UNCLAIMED PROPERTY. See Pra erty Unclaimed.'UNDERTAKING means a promise or security in any case where required by law.. 837 plaintiff in error, shall execute......................234 See C~ode of Civil Procedure. Uj'NION SCHOOL DISTRICT, how organized.................816 UN IVERSITIES, how may be incorporated..................360,TUN YERSITY, lands granted for......................76 State, shall be established by law.... 6 ~~~~1114 ~INDEX. UNIVERSITY Contzinuted. PA comparisons made by surveyors, of magnetic with true meridian to b filed with president.'See Surveyors. UNIVERSITY FUND, management and investment of. See Funds. USURPATION, &c., of Office. See Quo ITarrcento. USURY. See Interest of M6ney. VACANCY in office of Governor, how filled..................... VACANCIES not provided for by the Constitution to be filled by provisions of the Legislature.......56..................ooo......... o56 injudicial offices to be filled by governor....................58, 500 in o es of benevolent institutions, &c., to be filled by the governor.2 in Leislature, to be filled by election...................... in office of district attorney, shall be filled by district judge.....06 in office of commissioner, to be filled by remaining commissioners andlerk. 410 in office of county assessor, to be filled by county board. Ch. 210. all vacancies in state and county offices to be filled by the governor. 50 VACATION of ighways, &c. See Highiacys, We. VERDICT, form of in Coroner's Inquest..................0........ VERDICTS. See Code of Civil Procedure. See Code of Criminal Proceure. See ustices o the Peace. VENU. See Code of Civil Procedure. See Code of Criminal Procedure. VETO POWER, exercise of by the Governor.......................55. VOTERS. See Elections. VILLAGES. See Corpl)orations, Townes and Pillages. WAGES, Exemption Act not to apply to the collection of debts for....50 WARD. See Guardians and T~arcls. See Lunatics and Drunktardis. WARRAN T, against boats.........................III coroner niay issue, if jury find crime to bave been committed.........427 See Cede of Oriminal Procedure; Justices of the Peace; -Apprentices; Fugitives from Justice. WARRANTS, COUNTY. See Orders, C'ounties and C'ounty Officers. WASTE, action of; Thaolished.........................2 2 5 WASTE.,See La.ndllords8 and Tenants. WASTE, administrator's bond, may be sued on for............... 545 WATER & GAS COMPANIES. See Coilorations. WEIGHITS & MEASURES, Act regulating. Ohs. 211, 212. WHITE CLOUD City Company, amendment of act of incorporation. Oh. 51. WVIDOW entitled to damages when death of husband is caused by wrongful act, &C., of another.S............................O righits of dower of. See Doecer. WVIDOWS, Act for the Relief of. Oh. 214. Thel tailure, within six months, to elect to use, for her benefit Act relating- to Dower; Act to Protect the Rights of Married Women; Act concerning Desecents and Distributions:presumed to have elected to use tbe Act to Protect the Righr-ts of Married Women...................902 WIDOWS AND MINOR C1IJILDREN, Act for the Protection of. Oh. 21 I3. the amount exempt from execution shall be set apart for widows,and minor children..............................~.902 anr inventory shall be filed in probate court.................902 w, dow shall1 tDDlv before nro-oertv distributed......... 902 INDEX. 111 PAGE WTIDOWS, &c., the property so distributedshall not be liable for husband's debts.. 902 WVIFE, of herportion and manner of setting off the same...................... 469 to what property shall be restored when divorced. See Divorce and Alimony. mortgage of homestead not valid without signature of.................... 548 See Descents and Distributtions; Married Women: Dower; Widows andcl Mi"or"s; WTidows, Belief of; Code of Civil Procedtre; Execttors and Acdministrators. WITNESSES, may be subpoened in execution of deeds..................... 356 S'ee Code of Criminal Procedure. WOMEN, right of, to hold property, shall be protected.......................... 69 equal rights of, to possession of their children........................... 69 See Married Wfobmen. See Divorce and Alinimony. See Descents and Distlributions; Widozos; WVidows and Minors. WOOL GROWING Act for the encouragenmenit of, repealed.................... 881 WILLS, act regulating. Ch. 215. ALLOWANCE Of will by probate court.................................. 904, 905 ATTACIMENT of person having custody of will for failing the same into to bring court for publication............................... 904 ATTESTATION of foreign wills.......................................... 905 AUTHENTICATION of foreign wills........................................905 CaRTIFICATE of proof of will, how authenticated......................... 905 shall be recorded with will..................................... 904 COMIMITIuENT of person failing to produce will for publication................ 904 CoPY of will to be placed in bands of executors............................ 905 of foreign will, how to be authenticated................................. 905 DEVISE, of what property may be made.................................. 903 DEVISED, the word comprises bequeathed................................. 904 EvIDENcE, will duly authenticated shall be received as, in all the courts........ 905 EXECUTrOS, authenticated copy of will to be placed in hands of............... 905 refusing to act, will to be retained...................................... 905 FOREIGN wills, how proven............................................. 905 HEirms of devisee to inherit if devisee die before testator..................... 904 H1OMESTEAD not to be devised........................................... 905 NOTICE of proving will, court shall give................................... 904 PosTHUMous children, unprovided for, how shall inherit..................... 903 PROBATE court, will to be filed in office until death of testator................ 904 proceedings of in proving wills........................................ 904 PttooF of verbal will must be made within one year........................ 903 of other wills, proceedings in.......................................... 904 PROPERTY, what may be devised.,.......... 903 personal to the value of $300 may be bequeathed by verbal will............ 903 PUBLICATION of will.................................................. 904 RECORD of will to be made after proof.................................... 904 REVOCATION of will, how to be made.................................... 904 SOLDIER or mariner may bequeath all of his personal property by verbal will.... 903 VERBAL wills of personal property may be made........................... 903 W'ILL, who may make................................................ 903 married woman may make........................................... 697 not to affect right of wife under act governing descents and distributions..... 470 1116 INDEX. WILLS, contiunecl PA AWILL, must be in writing............ 903.... how to be witnessed and signed........903 how mnay be revoked.................. may be deposited with clerk of probate court until death of testator.904 publication of.......................904 the word includes codicils.............. 837 proof of............................. 904 copy of to be placed in hands of executor.. 04 to be retained on file if executor fail to qualify.904 transcript of record of, evidence.........9....04 verbal of personal property may be made.903 Tbreign, how to be authenticated...................... 905 WVITNIEss, when cannot derive benefit from will...............903 when and to w~hat extent ma y receive..................903 two must witness signing of wIlls....................903 two must witness revocation of wills...................904 See Excecutors cavc Administrators. See -Descents and, Distribations. See ]Afarrned Wfomen. See Dow~er. W111T Or POSSESSION, when may issue....................124 WATRI T S See Code of Civil Procedure. of habeas corpus. See -Habeas3 C67oiys. bow directed and served- when county atta chad to another for judicial purposes 4591 "WR'ITTEN," word may include what.................... 837 WYANDOTT CITY authorized to purchase the Wyandott bridge. Ch. 21. YER, mianning of the word...................... 837