When more

tion of judg.

on certain

virtue of which such sale was made, to levy the sum paid on such sale, with interest; and such judgment shall be deemed valid and effectual for that purpose, against the defendant therein, his personal representatives, heirs and devisees; but not against any purchaser, in good faith, or any incumbrancer by mortgage, judgment or otherwise, whose title or whose incumbrance shall have accrued before the levy of such further execution.

$90. When lands and tenements, in the hands of several persons, than propor shall be liable to satisfy any judgment, and the whole of such judgment levied ment, or more than a due proportion thereof, shall be levied upon the lands of any one or more of such persons, the persons so aggrieved, or their personal representatives, may compel a just and equal distribution by all the persons whose lands and tenements ought to contribute to the satisfaction of such judgment.

lands.

How such

S91. Such lands and tenements shall be liable to such contribulands liable tion in the following order :

to contribute.

contribution.

1st. If they were conveyed by the defendant, in the execution, they shall be liable in succession, commencing with the lands last conveyed.

2nd. If they were sold under execution, against the defendant, they shall also be liable in succession, commencing with the lands sold under the last and youngest judgment.

3d. If there be lands so liable, which were conveyed by the defendant in the execution, and also lands which have been sold under execution, against such defendant, they shall respectively be liable in succession, according to the order herein prescribed. Proceedings $92. If a bill be filed in chancery, to compel such contribution, to compel the person aggrieved shall be entitled to use the original judgment, and by virtue thereof, to levy the amount which ought to be contributed by the lands and tenements subject to such judgment; and for that purpose, such judgment shall remain a lien and charge upon such lands and tenements for the term of ten years from the docketing thereof to the extent of the sum which ought to be so contributed, notwithstanding such sum, or any part thereof may have been paid by the party seeking such contribution.

Ib.

Fees of clerk.

Person kept

$93. But such original judgment shall not remain a lien upon any lands, nor shall [they] be subject to an execution as herein provided, unless the person aggrieved, within twenty days after the payment of any sum of money by him, for which he shall claim a contribution, shall file an affidavit with a clerk of the court in which the original judgment was rendered, stating the sum paid, and his claim to use such judgment for the reimbursement thereof.

$94. On the filing of such affidavit, the clerk shall make an entry in the margin of the docket of such judgment, stating the sum so paid, and that such judgment is claimed to be a lien to that amount. $95. The same fee shall be paid on filing any such affidavit, as for the filing and docketing a record of judgment.

$96. Whenever any person shall be arrested by virtue of an exein custody. cution, issued upon any judgment rendered in a court of record, he shall be safely kept in secure custody in the manner prescribed by law.

rendered to

$97. Every person surrendered in exoneration of his bail, shall be When surkept in like manner until he shall satisfy the judgment rendered be kept se against him, or be discharged according to law.

cure.

bond of in

$98. If in any case where an officer has an execution against officer may property, there is any reasonable doubt as to the ownership of the require property, or as to its liability to be taken on the execution, the officer demnity. may require sufficient security to indemnify him for levying upon such property.

several joint

$99. In actions against two or more persons jointly indebted upon Process how any joint obligation, contract or liability, if the process issued against served when all the defendants shall have been duly served upon either of them, ly indebted. the defendant so served shall answer to the plaintiff, and in such case, the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process.

affected.

S100. Such judgment shall be conclusive evidence of the liability Debtor not of the defendant who was personally served with process in the suit, served, now or who appeared therein, but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.

§ 101. Execution upon every such judgment as in the last section How execumentioned, shall be issued in form against all the defendants, but tion to issue. the attorney issuing the same shall endorse thereon the names of such of the defendants as were not served with the process by which the action was commenced, and shall direct such execution to be served as provided in the next section.

$102. Such execution shall not be served upon the person of any Execution defendant whose name is so endorsed thereon, nor shall it be levied how served. upon the sale [sole] property of such defendant, but it may be collected of the personal property of any such defendant, owned by him as a partner with the other defendants taken, or with any of them.

Mortgagee

title in certain cases.

$103. A creditor by mortgage on real estate, his assignee or representative, where the mortgaged premises, or any part thereof, may acquire have been sold on execution, shall have the same right to acquire the interest of the purchaser of such real estate so mortgaged and sold, as is given to a judgment creditor by the seventy-second section of this act, and on acquiring such interest, shall be subject to all the provisions of this act in relation to the rights of other creditors, as are now applicable to judgment creditors by said article.

$104. To entitle a creditor by mortgage, his assignee or repre- b. sentative, to acquire the title of the original purchaser, or to be substituted as a purchaser from any other creditor, pursuant to this act, he shall present to and leave with such purchaser or creditor, or the officer who made the sale, the following evidence of his right:

1st. A copy of the mortgage under which he claims the right to purchase, duly certified by the clerk of the county where said mortgage is registered or recorded.

2. A copy of the assignment or assignments where the mortgage has been assigned, verified by his affidavit, or the affidavit of some other person.

3. A copy of the letter of administration, or letters testamentary,

Share in bank may be attached.

May be sold.

Officer of company to

shares own

halder.

where an administrator or executor applies to be substituted as a purchaser.

4. An affidavit by such mortgage creditor, his assignee or representative, or by his attorney or agent, stating the true sum due or to become due on such mortgage, at the time of claiming such right to purchase over and above all payments.

S105. Any share or interest of a stockholder in any bank, insurance company, or any other joint stock company that is or may be incorporated under the authority of this territory, may be levied upon or attached by leaving an attested copy of the writ with the clerk, treasurer or cashier of the company, if there be any such officer, otherwise with any officer or person who has at the time the custody of the books and papers of the corporation.

S106. Any share or interest so levied upon or attached with all the dividends that shall thereafter accrue thereon, shall be held and sold to satisfy the judgment in like manner as any other property levied on, is held and sold.

S107. If the officer having an attachment or an execution against give certif- any such stockholder, shall exhibit the writ to the officer of the comcate of No. of pany who is appointed to keep a record or account of the shares or ed by stock- interest of the stockholders therein, and shall request a certificate of the number of shares or amount of the interest held by the defendant in such suit, such officer of the company shall give such certificate to the person holding the writ; and if he shall unreasonably refuse to do so, or if he wilfully give a false certificate thereof, he shall be liable for double the amount of all damages occasioned by such refusal or false certificate, to be recovered in an action on the case against him, unless the judgment is satisfied by the original defendant.

Before

may be

taken.

AN ACT concerning oaths.

S1. Whenever any oath or affidavit is or may be required or whom oaths authorized by law, (except oaths to jurors and witnesses in the trial of a cause, oaths of office, and such other oaths as are required by law to be taken before particular officers,) the same may be taken before any judge of the supreme or district courts, judge of probate, supreme court commissioners, clerk of any court of record, notary public or justice of the peace, and when certified by any such officer to have been taken before him, may be read and used in any court of law or of equity, of record or not of record, within this territory, and before any officer, judicial, executive or administrative.

Persons may affirm.

Mode of swearing.

.

$2. Every person who shall declare that he has conscientious scruples against taking any oath or swearing in any form, shall be permitted to make his solemn declaration or affirmation.

$3. Whenever the court before which any person shall be offered as a witness, shall be satisfied that such person has any peculiar mode of swearing, which is more solemn and obligatory, in the opinion of such person, than the usual mode, the court may, in its discretion, adopt such mode of swearing such person.

$4. Every person believing in any other than the christian religion, shall be sworn according to the peculiar ceremonies of his religion, if there be any such ceremonies.

belief re

S5. Every person believing in the existence of a supreme being Religious shall be admitted to be sworn, if otherwise competent.

quired.

declared

$6. No person shall be required to declare his belief in the exis- Not to be tence of a supreme being, or his belief or disbelief of any other matter, as a requisite to his admission to be sworn to testify in any case. But the belief or unbelief of every person offered as a witness, may be proved by other and competent testimony.

tion.

$7. But the last section shall not be construed to prevent any Limitation court before whom an infant, or a person apparently of weak intel- on lect, shall be produced as a witness, from examining such person to ascertain his capacity, and whether he understands the nature and obligations of an oath, nor shall it be construed to prevent a court from inquiring of any person what are the peculiar ceremonies observed by him in swearing, which he deems most obligatory.

taken, &c.

$8. In all cases in which an oath or affidavit is required or autho- Oaths how rized by law, the same may be taken in any of the usual forms, and every person swearing, affirming or declaring, in any such form, shall be deemed to have been lawfully sworn, and to be guilty of perjury for corruptly or falsely swearing, affirming or declaring in any such form.

AN ACT concerning testimony and depositions."

$1. Every clerk of a court of record, and every justice of the peace, Who to issue may issue subpoenas for witnesses in all civil cases pending before subpena. any court, or before any magistrates, arbitrators or other persons authorized to examine witnesses, and the subpoena shall be in the form heretofore adopted and commonly used.

and how

S2. Such subpoena may be served by any person, by exhibiting By whom and reading it to the witness, or by giving him a copy thereof, or served. leaving such copy at the place of his abode.

ness.

$3. No person shall be obliged to attend as a witness unless the Fees of wit fees are paid or tendered to him which are allowed by law for one day's attendance as a witness, and for travelling to and returning from the place where he is required to attend.

witness.

S4. If any person duly subpoenaed and obliged to attend as a Liability of witness, shall fail so to do without any reasonable excuse, he shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action on the case.

not attending

court.

$5. Such failure to attend as a witness in any court of record, Penalty for shall also be considered a contempt of the court, and may be punished by a fine not exceeding twenty dollars.

bring up

$6. The court in such case may issue a warrant to bring such warrant to witness before them to answer for the contempt, and also to testify as witness. a witness in the cause in which he was summoned.

$7. Depositions may be taken in the manner and according to Depositions. the regulations provided in this act, to be used before any magistrates or other persons authorized to examine witnesses in any other than criminal cases.

taken.

S8. When a witness whose testimony is wanted in any civil cause when to be pending in this territory shall live more than thirty miles from the place of trial, or shall be about to go out of the territory and not to return in time for the trial, or is so sick, infirm or aged as to make it

Notice to be

given.

How served

on agent, &c

On one of several par. ties.

Manner of service.

Given ver

bally by justice.

-

ponent to sworn.

How to be examined.

Deposition, by whom written,

Certificate annexed to

probable that he will not be able to attend at the trial, his deposition may be taken in the manner hereinafter provided.

$9. At any time after the cause is commenced by the service of process, or after it is submitted to arbitrators or referees, either party may apply to any justice of the peace, who shall issue a notice to the adverse party to appear before the said justice, or any other justice of the peace, at the time and place appointed for taking the deposition, and to put such interrogatories as he may think fit.

$10. The said notice may be served on the agent or attorney of the adverse party, and shall have the same effect as if served on the party himself.

$11. When there are several persons plaintiffs or defendants, or parties on either side in the cause, a notice served on either of them shall be sufficient.

$12. The notice shall be served by delivering an attested copy thereof to the person to be notified, or by leaving such copy at his place of abode, allowing in all cases not less than twenty-four hours after such notice before the time appointed for taking the depositions, and also allowing time for his travel to the place appointed, after being notified not less than at the rate of one day, Sundays excepted, for every twenty miles travel.

S 13. Instead of the written notice before prescribed, the notice may in all cases be given verbally by the justice taking the deposition, or it may be wholly omitted if the adverse party or his attorney shall in writing waive the right to it.

S14. The deponent shall be sworn to testify the truth, the whole truth and nothing but the truth, relating to the cause for which the deposition is taken, and he shall then be examined by the justice, and by the parties if they think fit, and his testimony shall be taken in writing.

S15. The party producing the deponent shall be allowed first to examine him, either upon verbal or written interrogatories, on all the points which he shall deem material, and then the adverse party may examine the deponent in like manner, after which either party may propose such further interrogatories as the case may require.

$16. The deposition shall be written by the justice or by the deponent, or by some disinterested person in the presence and under the direction of the justice, and it shall be carefully read to or by the deponent, and shall then be subscribed by him.

S17. The justice shall annex to the deposition, a certificate of the deposition. time and manner of taking it, the person at whose request, and the cause or suit for which it was taken and the reason for taking it; and stating also whether the adverse party attended, and if not, stating the notice, if any, that was given to him.

To be deli. vered to court.

S18. The deposition shall be delivered by the justice to the court, or arbitrators or referees before whom the cause is pending, or shall be enclosed and sealed by him and directed to them, and shall remain sealed until opened by the said court, arbitrators or referees. When not to $ 19. No such deposition shall be used, if it shall appear that the reason for taking it no longer exists: Provided, however, That if the party producing the deposition in such case shall show any sufficient cause then existing for using the deposition, it may be admitted.

be used.