CHAPTER XXXII.

APPEALS.

Notice of appeal to be in writing.

SEC. 344. Any person feeling himself aggrieved by the decrees or decisions of the district court, may take an appeal to the supreme court by serving a notice in writing, to his agent or attorney, and also the clerk of the court in which the proceedings were had, stating the appeal from the judgment or some specific part thereof. Appeal taken within twenty days.

SEC. 345. The appeal shall be taken and perfected within twenty days from the rendition of the judgment, but the appeal shall in no case stay the execution unless a bond be filed for double the amount conditioned to secure the payment.

Execution to be recalled.

SEC. 346. If the execution has been issued before such appeal is taken, where the bond is filed, the clerk shall recall it. Judgment may be reversed or affirmed.

SEC. 347. The court may reverse or affirm the judgment or render such judgment as the district court should have done. Damage not to exceed twelve per cent.

SEC. 348. If the judgment be affirmed, the court shall award the appellee such damages as they may deem just, not exceeding twelve per cent per annum.

Judgment may be remanded to District court.

SEC. 349. If the court affirm the judgment, it may remand the cause to the district court, to be carried into effect or it may issue the necessary process for that purpose to the sheriff of the proper county.

Writ of restitution in certain cases.

SEC. 350. If by the determination of the cause, the appellant is entitled to a restoration of money or property that was taken from him under the judgment below, then either court may award a writ of restoration or execution for the purpose of restoring the property or the value thereof.

Bona fide purchaser not be affected.

SEC. 351. Property acquired by a bona fide purchaser under a judgment reversed, shall not be affected by such reversal.

CHAPTER XXXIII.

INFORMATIONS.

Against whom information may be filed.

SEC. 352. An information may be filed against any person unlawfully holding or exercising any public office or franchise within this Territory, or any corporation created by the laws of this Territory, or when any public officer has done or suffered any

act which works a forfeiture of his office, or when any persons act as a corporation within this Territory, without being authorized by law, or, if corporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when any person exercises powers not conferred by law. By whom.

SEC. 353. Such information may be filed by the district attorney of the proper county whenever he deems it his duty so to do, or when complaint is made under oath.

When filed.
SEC. 354.

He must file such information when directed to do so by the Governor, the General Assembly or the District Court. Of what to consist.

SEC. 355. Such information shall consist of a plain statement of the facts which constitute the grounds of the proceeding, addressed to the court, which shall stand for an original petition. Statement filed in clerk's office.

SEC. 356. Such statement shall be filed in the clerk's office, and summons issued and served in the same manner as hereinbefore provided for the commencement of actions in the district court.

SEC. 357. The defendant shall appear and answer such information in the usual way, and issue being joined, it shall be tried in the ordinary manner.

Information affecting offices.

SEC. 358. When the defendant is holding an office to which another is claiming the right, the information should set forth the name of such claimant; and the trial must, if practicable, determine the rights of the contesting parties.

When judgment in favor of claimant.

SEC. 359. If judgment be rendered in favor of such claimant, he shall proceed to exercise the functions of the office, after he has qualified as required by law.

Books and papers to be delivered over.

SEC. 360. The court, after such judgment, shall order the defendant to deliver over all books and papers in his custody or under his control, belonging to said office.

Defendants liable to suit for damages.

SEC. 361. When the judgment has been rendered in favor of the claimant, he, at any time within one year thereafter, may bring suit against the defendant and recover the damages he has sustained by reason of the act of the defendant.

Information against several.

SEC. 362. When several persons claim to be entitled to the same office or franchise an information may be filed against all, or any portion thereof, in order to try their respective rights thereto.

Information against officer, corporation &c.

SEC. 363. If the defendant be found guilty of unlawfully holding or exercising any office, franchise, or privilege, or if a corporation to be found to have violated the law by which it holds its existence, or in any other manner to have done acts which amount to a surrender or forfeiture of its privileges, judgment shall be rendered that such defendant be ousted and altogether excluded from such office, franchise or privilege, and also that he pay the costs of the proceeding.

CHAPTER XXXIV.

JUDGMENT LIENS.

Judgments are liens upon real estate.

SEC. 364. Judgments in the supreme court or district court of this Territory, or in the district or circuit court of the United States, if rendered within this Territory, shall be a lien upon the land property owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire, before the expiration of the lien as hereinafter provided.

Lands in county where judgment was given.

SEC. 365. When the lands lie in the county where the judgment was rendered, the lien shall attach from the date of the rendition. Lands in other counties.

SEC. 366. If the lands lie in any other county, the lien does not attach until an attested copy of the judgment is filed in the office of the clerk of the district court of the county in which the land lies.

Transcript of judgment.

SEC. 367. Such clerk shall, on the filing of a transcript of the judgment in his office, immediately proceed to docket and index the same in the same manner as though rendered in the court of his own county.

Limitation liens.

SEC. 368. The liens above authorized continue in force for the term of five years only from the date of the judgment. Provided, abstracts of judgments, mechanics liens and all securities provided for in this statute shall be recorded.

CHAPTER XXXV.

FORECLOSURE OF MORTGAGE.

Petition for foreclosure of mortgages.

SEC. 369. Every mortgage given for the payment of money or for any other purpose, shall be foreclosed by petition filed in the district court of the county where the mortgaged premises are situated, asking a decree of sale.

Proceedings as in debt.

SEC. 370. The holder of any mortgage shall in all cases proceed by such petition as in action for debt, and shall give the same notice to the defendant, and to other parties in interest by way of lien or otherwise, as is required in a civil action for debt. Right contested.

SEC. 371. The right of the mortgagee to foreclose as well as the amount claimed, may be contested to be due by the defendant or any one having a lien interested in the result of the suit. Judgment for the amount due.

SEC. 372. If any thing found be due the plaintiff upon a petition filed for a foreclosure of a mortgage, the court shall enter judgment therefor and have power to decree a sale of the mortgaged premises, or such part thereof, as may be sufficient to discharge the amount due on the mortgage and the cost of suit. Decree.

SEC. 373. The court shall also have power to decree and compel the delivery of the possession of the premises to the purchaser thereof, and to decree and direct the payment by the mortgagor of any balance of the mortgage debt in the case in which such balance is recoverable at law and for that purpose may issue the necessary executions as in the other cases against other property of the mortgagor.

Sale of mortgaged premises.

SEC. 374. All sales of mortgaged premises under a decree of the court, shall be made by the sheriff in the county where the premises are situated.

Sale conducted as other sheriff sales.

SEC. 375. Such sales shall be conducted under the same rules and regulations as sales under execution, and are subject to the same redemption.

Right of redemption.

SEC. 376. The rights of redemption to parties having liens, shall be the same for judgment and sales under a decree upon the foreclosure of a mortgage as under a sale on execution. Proceedings recorded.

SEC. 377. The writs and proceedings and all the papers for a trial and foreclosure of a mortgage, shall be recorded in full by a clerk of the court.

CHAPTER XXXVI.

EVIDENCE.

Who are competent witnesses.

SEC. 378. Every human being of sufficient capacity to understand the obligation of an oath, is a competent witness in all cases, both civil and criminal, except as otherwise herein declared.

But an indian, a negro, or mulatto or black person shall not be allowed to give testimony in any cause.

Exclusion of testimony.

SEC. 379.

Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility.

Incompetent witnesses.

SEC. 380. A person who has a direct, certain, legal interest in the suit is not a competent witness, unless called on for that purpose by the opposite party as hereinafter provided. Husband and wife not witnesses against each other.

SEC. 381. The husband can in no case be a witness against the wife, nor the wife against the husband except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witness for each other. 'Communication made while married shall not be revealed.

SEC. 382. Neither the husband nor wife can be examined in either case, as to any communication made by the one to the other while married, nor shall they after the marriage relation ceases, be permitted to reveal in testimony, any such communication made while the marriage existed.

Attorneys, physicians, &c., not to disclose communications made in professional capacity.

SEC. 383. No practicing attorney, counsellor, physician, surgeon, minister of the gospel or priest of any denomination, shall be allowed in giving testimony to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Waiving rights.

SEC. 384. The prohibitions in the preceeding sections do not apply to cases where the party in whose favor the respective provisions are enacted, waives the rights thereby conferred.

Official confidence.

SEC. 385. A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.

Civil liability.

SEC. 386. No witness is excused from answering a question upon the mere ground that he would be thereby subject to a civil liability.

Criminal liability.

SEC. 387. But when the matter sought to be elicited would tend to render him criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as provided in the next section.