seai,

tion.

Persons auth

Signature and SEC. 84. The signature and seal of such of the officers presump- herein authorized to take depositions or affidavits as have a seal, and the simple signature of such as have no seal, are presumptive of the genuineness of such signature as well as of the official capacity of the officer, except as herein otherwise declared. SEC. 85. When by the laws of any other state or country, orized by other testimony may be taken in this Territory to be used in the courts of such State or country, and also in all cases herein provided for taking depositions, and persons authorized to take such depositions have power to issue subpoenas and compel obedience thereto, to administer oaths, and do any other act of a court which is necessary for the accomplishment of the purpose for which they are acting.

states.

Subpoenas them valid.

by

Officers must serve.

Affidavits how compelled.

site party.

SEC. 86. Subpoenas issued by them are valid to the same geographical extent as those issued from a Justice's Court, and may be served and returned in the same manner.

SEC. 87. Any sheriff or constable when called upon for that purpose shall serve such subpoenas and make return thereto.

SEC. 88. Where a person is desirous of obtaining the affidavit of another who is unwilling to make the same fully, he may apply to any officer competent to take depositions as herein declared, by petition stating the object for which he desires the affidavit.

SEC. 89. If such officer is satisfied that the object is legal and proper, he shall issue his subpoena to bring the witness before him, and if he fails then to make a full affidavit of the facts wherein his knowledge to the extent required of him by the officer, the latter may proceed to take his deposition by question and answer in writing in the usual way, which deposition may afterwards be used instead of an ordinary affidavit.

SEC. 90. The officer thus applied to may, in his discretion, Notice to opp require notice ot the taking of such affidavit or deposition to be given to any other person interested in the subject matter, and allow him to be present and cross examine such witness.

SEC. 91. The court or officer to whom any ex-parte affidavit is presented as a basis for some action, in relation to which any discretion is lodged with such court or officer, may if deemed proper require the witness to be brought before some proper officer and subjected to cross examination by the opposite party. SEC. 92. The ordinary rules of evidence not incompatible with those herein prescribed are not intended to be hereby changed.

CHAPTER XXXIV.

When authorized

WRIT OF CERTIORARI AND REPLEVIN.

SEC. 1. The writ of certiorari may be granted whenever specially authorized by law and also in all cases where an inferior tribunal or board, or officers exercising judicial functions is

alledged to have exceeded their proper jurisdiction, or is otherwise acting or has acted irregularly or illegally, when in the judgment of the court or judge applied to for the writ there ts. no other plain, speedy, or adequate remedy.

SEC. 2. The writ may be granted by the Judge of the Dis- Bywhom granted trict Court of the proper county, but if to be directed to a District Court or a judge thereof then by the Supreme Court, and shall command the defendant therein to certify fully to the court from which the same issues, at a specified time and place, a transcript of the records and proceedings as well as the facts of the case (describing and referring to them or any of them with convenient certainty) and also to have then and there the writ.

SEC. 3. If a stay of proceedings is sought the court or judge Supersedeas. may require a bond and fix the penalty and conditions thereof.

SEC. 4. The application for this writ must be made on affi- Application, 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, or may grant the writ without notice.

SEC. 5.

The writ must be served and the proof of such ser

Service and

vice made in the same manner as is prescribed for the original return.
summons in a civil action, except that the original shall be left
with the defendant and the return or proof of service made upon
a copy thereof.

SEC. 6. If the return to the writ be defective the court may If defective. order a further return to be made, and may compel obedience to the writ and to such further order by attachment if necessary.

Action of the

SEC. 7. When a full return has been made the court must proceed to hear the parties, or such of them as may attend for court. that purpose, and may thereupon give judgment affirming or annulling the proceedings below, or in its discretion correcting those proceedings and prescribing the manner in which the defendant shall proceed farther in the matter.

SEC. 8. From the decision of the District Court an appeal Appeal. lies to the Supreme Court as in other cases.

REPLEVIN.

SEC. 9. When the object of the action is to recover the pos- Petition. session of personal property the petition must in all cases be

under oath.

SEC. 10. It must state that the property (describing it) is Substance of. wrongfully detained by the defendant, that the plaintiff is entitled to the present possession thereof, and that it was not taken from him by any legal process, or if so taken that it was exempt from seizure by such process. It must also state the alledged cause of detention according to his best knowledge and belief and also the value of property.

SEC. 11. He shall also execute a bond to the defendant with Bond. sureties to be approved by the clerk, in a penalty at least equal to twice the value of the property sought, conditioned that he will appear at the next term of the court and prosecute his suit to judgment and return the property if a return be awarded, also

Writ.

Duty of sheriff.

Claimant.

Judgment.

pay all costs and damages that may be adjudged aga
This bond shall be filed with the clerk of the court, an
the use of any person injured by the proceedings.

SEC. 12. The clerk shall thereupon issue a writ of re directed to the sheriff to take the property therein describ deliver the same to the plaintiff. The writ shall contain rection to the officer to summon the defendant to appear o return day before the court to which the issue is returnable answer to the petition of the plaintiff. The writ shall in audition to the service hereinafter prescribed be served as a summons, and no other service or notice of the commencement of action shall be required.

SEc. 13. In obedience to such writ, the sheriff must forthwith take possession of the property if in the possession of the defendant or his agent, for which purpose he may open any dwelling house or other inclosure having first demanded entrance and exhibited his authority if required.

SEC. 14. If a third person claim the property he must be made a co-defendant.

SEC. 15. If the property sought be not obtained the plaintiff, if he establish his right thereto, shall recover the value of that right. Whether obtained or not he shall recover the damages he has sustained in consequence of the illegal detention thereof.

SEC. 16. If the plaintiff fail to establish his right to the property, the defendant shall recover such damages as under the circumstances he shows himself entitled to.

CHAPTER XXXV.

Organization.

Powers.

PROBATE COURTS.

Sec. 1. There is hereby established in each organized county in the Territory, a Probate Court which shall be held at the county seat, on the second Monday of each month, and shall be a court of record.

SEC. 2. Judges of Probate shall have and exercise the ordinary powers and jurisdiction of a justice of the peace.

SEC. 3. The Courts of Probate in their respective counties shall have jurisdiction of the probate of wills, the administration of estates of deceased persons, and the guardianship of minors, insane persons, idiots, and such other powers as may be conferred by law.

SEC. 4. They shall have power:

1st.

To hear and determine all cases of debts and demands when executors, administrators, and guardians, shall be parties, plaintiff or defendant, when the amount claimed to be due shall not exceed one thousand dollars; 2d. To hear and determine questions of application for, and to grant and issue letters of administration, testimony, and of guardianship, and revoke the same;

.th. To determine the persons entitled to letters of administration, testamentary, and guardianship;

5th. To cause to be taken, to receive, and file and record all
inventories, sale and appraisement bills, of the estate of
deceased persons;

6th. To require executors, administrators, and guardians to
exhibit and settle their accounts, and for the estates and
property that have come into their possession as such;
To appoint commissioners to partition, real estate, and
to assign dowers;

7th.

Sth.

9th.

To authorize guardians to sell and convey the real estate of their wards; to provide for the wants, education, and support of minors, insane persons, or idiots;

They shall have power to hear and determine all questions arising under the laws, and enforce the same, in relation to illegitimate children.

SEC. 5. It shall be the duty of said courts to examine the bonds of all guardians, administrators, or executors, at least once in every year, and if, upon such examination, any such courts shall have doubts of the solvency or sufficiency of the securities in any such bonds, the court shall notify such guardian, administrator or executor, to show cause why he shall not execute a new bond, with surety to be approved by said court as provided by law.

SEC. 6. If, upon hearing of such matter, the court shall require a new bond, with sureties, and such guardian, administrator or executor, shall fail to comply with the order of the court, he shall be removed from his said trust, and his letters revoked, and another guardian appointed in his place.

Duties.

SEC. 7. The probate books are to be provided at the expense Books.

of the county, and shall consist of a record, entry, estate and

fee book; the record book shall contain a full record of all Record book. wills, testaments and codicils, and the probate thereof, all letters testamentary, of administration, and guardianship, and all bonds

of executors, guardians and administrators: the original papers

to be filed and preserved in the office.

SEC. 8. There shall be entered in the estate book, all inven- Estate book. tories, appraisements, sale bills, and other exhibits and reports, received by the court, relative to the settlement or disposition of estates, showing the amount of all such estates, as shown by such instrument.

SEC. 9. The entry book shall contain a fair statement of all matters, controversies, and suits, that may have arisen for decision or adjudication before said court, with the names of the parties, date of each entry, and the judgment or opinion of the court, and all orders thereof.

Entry book.

Fee book.

SEC. 10. The fee book shall contain an exact account of all fees allowed and paid in each case, showing the names of the persons receiving the same, and for what such fees were paid. SEC. 11. To said books shall be attached an index, which Index.

shall at all times be kept up with entries therein in alphabetical order by the names of parties of persons in whose name the entries are made.

CHAPTER XXXVI.

Petition.

What to be stated.

Lien creditors.

Costs.

Answers.

Replication.

Issues.

Proofs ot title.

Pleadings true.

Judgment.

Referees.

PARTITION.

SEC. 1. When the object of the action is to effect a partition of real property among several joint owners, the petition must describe the property and the respective interests of the several owners thereof, if known.

SEC. 2. If the number of shares or interests is known but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent, or doubtful, these facts must be set forth in the petition with reasonable certainty.

SEC. 3. Creditors having a specific or general lien upon all or any portion of the property may, or may not, be made parties at the option of the plaintiff.

SEC. 4. If the lien is upon one or more undivided interests of any of the parties, it shall, after partition or sale, remain a charge upon those particular interests or the proceeds thereof. But the due proportion of costs is a charge upon those interests paramount to all other liens.

SEC. 5. The ans vers of the defendants must state among other things the amount and nature of their respective interests. They may deny the interest of any of the plaintiffs and by sup plemental pleading if necessary may deny the interest of any of the other defendants.

SEC. 6. Where there are two or more plaintiffs they may reply jointly, or either of them may reply to an[y] or all the answers of the defendants.

SEC. 7. Issues may thereupon be joined and tried between any of the contesting parties, the question of costs on such issues being regulated between the contestants agreeably to the prin ciples applicable to other cases.

SEC. 8. Each of the parties appearing, whether as plaintiff or defendant, must exhibit his documentary proof of title, if (he has any) and must file the same or copies thereof with the clerk.

Src. 9. If the statements in the petition and answers are not contradicted in the manner aforesaid or by the documentary proof exhibited as above required they shall be taken as

true.

SEC. 10. After all the shares and interests of the parties have been settled in any of the methods aforesaid judgment shall be rendered confirming those shares and interests and directing partitions to be made accordingly.

SEC. 11. Upon entering such judgment the court shall ap