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be declared vacant; or if there be a failure to elect by the people, or if there shall be, at any time, or from any cause, a vacancy in the office of assessor, or if said assessor, having qualified, shall fail to proceed to the discharge of the duties of his office before the first day of February in each year, the county commissioners shall forthwith missioners appoint one suitable person, a resident of the county, to discharge the duties of county assessor, who shall thereupon take the necessary oath of office, give the same bond, perform the same duties, be entitled to the same fees, and subject to the same liabilities as in case of assessors elected by the people.

County com

may fill vacancies.

Not eligible for re-election.

SEC. 3. No person who shall have served one term of two years as assessor in any county shall be eligible to the next succeeding term: Provided, That the provisIneligibility ions of this act shall not apply to the election of assessor, or his eligibility to such office, in those counties wherein it is provided by law that the sheriff shall be, by virtue of his office, ex-officio assessor.

does not ap ply where sheriff is exofficio asses

sor.

Repealing

clause.

SEC. 4. All acts and parts of acts in conflict herewith are hereby repealed.

SEC. 5. This act shall take effect and be in force from and after its passage.

Approved February 16th, 1877.

Territorial treasurer made general recorder of

marks and brands.

BRANDS AND MARKS.

AN ACT to amend "An Act in relation to brands and marks," approved January 10, 1872. (Codified Statutes, page 563.)

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

That sections 1 and 5 of the above entitled act be amended so as to read as follows:

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SECTION 1. That a general office for recording brands, or marks and brands, shall be kept at the seat of governand the duties are hereby devolved on the territoment, rial treasurer, without further compensation than is now provided by law for such treasurer : "Section 5. The

general recorder of brands and marks shall annually have published, as an appendix to his report as territorial treasurer, a list of all brands, or marks and brands, which have not been previously published, and cause to be printed, at the expense of the territory, a sufficient number of copies in pamphlet form to furnish each Duties of recounty clerk with twenty-five copies thereof, for free distribution to those engaged in stock-growing. The general recorder may charge and receive, from each person applying for a brand, or mark and brand, a fee of one dollar for each brand, or mark and brand, so recorded,

corder.

cording.

and all fees received by him shall be paid into the terri- Fees for retorial treasury, to the credit of the general fund. The clerk of the supreme court shall, immediately after the approval of this act, deliver to the territorial treasurer all books and papers belonging to said office of general recorder of brands and marks.

SEC. 2. That sections 1 and 5 are hereby repealed. SEC. 3. That the territorial treasurer shall keep the books of brands and marks in alphabetical order. Approved February 8th, 1877.

CENTENNIAL EXHIBITION.

AN ACT with reference to the exhibit of Montana at the national exhibition.

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

SECTION 1. That the exhibit of the territory of Montana, with the cases in which the same are contained, which are now in the possession of the Smithsonian Institute, and which were exhibited by the territory at the national exhibition at Philadelphia in the year 1876, be, and the same are hereby, donated to the United States, to be by them placed on exhibition at the said Smithsonian Institute, or in such other place as congress shall direct.

SEC. 2. This act shall take effect and be in force from and after its passage.

Approved February 3d, 1877.

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civil action.

CODE OF CIVIL PROCEDURE.

AN ACT to provide a code of civil procedure in the territory of Montana.

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

TITLE I.- OF THE FORM OF CIVIL ACTIONS.

CHAPTER I.

SECTION 1. There shall be in this territory but one One form of form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which shall be the same at law and in equity. SEC. 2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

Of parties.

SEC. 3. When a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the Trial of facts trial may be made, stating distinctly and plainly the question of fact to be tried; and such order shall be the only authority necessary for a trial.

not in issue.

TITLE II.-OF THE PARTIES TO CIVIL ACTIONS.

SEC. 4. Every action shall be prosecuted in the name Real party in of the real party in interest, except as otherwise prointerest to sue vided in this act.

signee.

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SEC. 5. In the case of an assignment of a thing in Action by as- action, the action by the assignee shall be without prejudice to any set-off or other defense existing at the time of, or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration before due.

Suit by exec

utor, admin

SEC. 6. An executor or administrator, or trustee of an istrator, or express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons

trustee.

for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.

SEC. 7. When a married woman is a party her husband must join with her, except

First. When the action concerns her separate property,

Of suits where

or her right or claim to the homestead property, she may a married wosue alone.

Second. When the action is between herself and husband, she may sue or be sued alone.

Third. When she is living separate and apart from her husband, she may sue or be sued alone.

SEC. 8. 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.

SEC. 9. When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action was prosecuted, or by a judge thereof, or a probate judge.

manisa party

Right of wife to defend suit

Infant to ap

pear by guar party to suit.

dian when

Appointment

SEC. 10. The guardian shall be appointed as follows: First. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen of guardian years, or if under that age upon the application of a relative or friend of the infant.

Second. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant.

SEC. 11. An unmarried female may prosecute, as plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor.

SEC. 12. A father, or, in case of his death or desertion, the mother, may prosecute, as plaintiff, for the seduction of the daughter, and the guardian for the

for infant when a party.

Unmarried female may sue for her seduction.

Suit by parent for seduction or ward.

or guardian

of daughter

Action for injury to child.

Of the action

death to one

not a minor.

seduction of the ward, though the daughter or ward be not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service.

SEC. 13. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.

SEC. 14. Where the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing for causing the death, or if such person be employed by another person, who is responsible for his action, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just. SEC. 15. All persons having an interest in the subWho may be ject of the action, and in obtaining the relief demanded, joined as plaintiffs. may be joined as plaintiffs, except when otherwise provided in this act.

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SEC. 16. Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in an action to determine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant.

SEC. 17. In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may join as defendants, and if the judgment be for the plaintiff, het may have a writ for the possession of the premises as against the defendants in action against whom the judgment has passed.

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