by one party to another on account of the inequality; but such compensation shall not be required to be made to others by owners unknown, nor by an infant, unless it shall appear that such infant has personal property sufficient for that purpose, and that his interest will be promoted thereby; and in all cases the court shall have the power to make compensatory adjustment between the respective parties, according to the ordinary principles of equity. Sec. 354. When the share of an infant is sold, the proceeds of the sale may be paid, by the referee making the sale, to his general guardian, or the special guardian appointed for him in the action, upon giving the security required by law or directed by the order of the court.

Sec. 355. The guardian who may be entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive, in behalf of such person, his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking, approved by the judge of the court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative.

Sec. 356. The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, who is entrusted in real estate held in joint tenancy or in common, or in any other manner, so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without action, and agree upon the share to be set off for such infant, or other person entitled, and may execute a release in his behalf to the owners of the shares of the parts to which they may be respectively entitled, upon an order of the court.

Sec. 357. The costs of partition, including fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment; in that case there shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, a litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.

Sec. 358. The court, with the consent of the parties, may appoint a single referee, instead of three referees, in the proceedings under the provisions of this chapter; and the single referee, when thus appointed, shall have all the powers and perform all the duties required of the three referees.

CHAPTER V.

ACTIONS FOR THE USURPATION OF AN OFFICE OR FRANCHISE.

Sec. 359. Action may be brought; any party usurping, &c., any office of franchise.

Sec. 360. Name of person entitled to office may be set forth in the complaint; if fees have been received by the usurper, he may be arrested.

Sec. 361.

Judgment may determine the rights of both incumbent and claimant.

Sec. 362. When rendered in favor of applicant.

Sec. 363. Damages may be recovered by successful applicant. Sec. 364. When several persons claim the same office, their rights may be determined by a single action.

Sec. 365. If defendant found guilty, what judgment to be rendered against him.

Section 359. An action may be brought by the district attorney, in the name of the people of this territory, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within his district, in the territory; and it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into or unlawfully held or exercised by any person, or when he is directed to do so by the governor; and, in case such district attorney shall neglect or refuse to bring such action, upon the complaint of a private party, such action may be brought by such private party upon his own relation, in the name of the people of the territory.

Sec. 360. Whenever such action is brought, the district attor ney or relator, in addition to the statement of the cause of action, he may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his rights thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner, and with the same effect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest.

Sec. 361. In every such case judgment may be rendered upon the right of the defendant, and also upon the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require.

Sec. 362. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office.

Sec. 363. If judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office by the defendant.

Sec. 364. When several persons claim to be entitled to the same office, or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.

Sec. 365. When a defendant, against whom such action has been brought, is adjudged guilty of usurping, or intruding into, or unlawfully holding any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defendant a fine, not exceeding five thousand dollars, which fine, when collected, shall be paid into the treasury of the territory.

TITLE IX.

OF APPEALS IN CIVIL ACTIONS.

CHAPTER I.

APPEALS IN GENERAL.

Sec. 366. Judgment and order may be reviewed.
Sec. 367. An order made out of court, without notice, may be
reviewed by the judge who made it.

Sec. 368. A party aggrieved may appeal in certain cases.
Sec. 369. Within what time appeal may be taken.

Sec. 370. Appeal may be made by filing and serving notice

thereof.

Sec. 371. The appellant shall, within twenty days, prepare statement, subject to amendment and settlement.

Sec. 372. Omission to make statement or amendment, according to preceding section, shall be a waiver thereof. Sec. 373. Time for preparing statements or amendments may be enlarged.

Sec. 374. Authentication of statement.

Sec. 375. Statement shall be annexed to judgment roll or order appealed from.

Sec. 376. Appeals from an order made upon affidavit.

Sec. 377. An appeal from judgment; the court may review intermediate orders.

Sec. 378. Remedial powers of the appellate court.
Sec. 379. Appellant shall furnish requisite papers.

Section 366. A judgment or order, in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this act.

Sec. 367. An order made out of court, without notice to the adverse party, may be vacated or modified without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

Sec. 368. Any party aggrieved may appeal in the cases prescribed in this title. The party appealing shall be known as the appellant and the adverse party as the respondent.

Sec. 369. An appeal may be taken: First. From a final judgment in an action or special proceeding commenced in the court in which the judgment is rendered, within one year after the rendition of the judgment. Second. From a judgment rendered on an appeal from an inferior court, within ninety days after the rendition of the judgment. Third. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment, or from any special order made after a final judgment; and from an interlocutory judgment in actions for partition of real property, within sixty days after the order or interlocutory judgment is made and entered in the minutes of the court.

Sec. 370. The appeal shall be made by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney.

Sec. 371. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judg ment or order, he shall, within twenty days after the entry of such judgment or order, prepare such statement, which shall state specifically the particular errors or grounds upon which he

intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and file the same with the clerk of the court, and give notice to the opposite party, or his attorney, of such filing. The respondent may, within five days thereafter, prepare amendments to such statement, and file the same, and serve notice thereof on the opposite party. The statement and amendments which may be filed shall be presented to the judge or court, upon notice of two days to the opposite party, and a true statement shall thereupon be settled by the judge or court. If no amendments are filed, the statement may be presented to the judge or court without any notice to the respondent.

Sec. 372. If the party shall omit to make a statement within the time above limited, he shall be deemed to have waived his right thereto; and when a statement is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, the other to notify an appearance before the judge, they shall respectively be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the judge who heard the cause shall, notwithstanding such omission, or implied agreement, have power to correct any misstatement of facts or of his rulings which such statement may contain.

Sec. 373. The several periods of time above limited may be enlarged, upon good cause shown, by the judge before whom the

cause was tried.

Sec. 374. The statement, when settled by the judge, shall be signed by him, with his certificate that the same has been allowed, and is correct; when the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them, and is correct. In either case, when settled or agreed upon, it shall be filed with the clerk.

Sec. 375. A copy of the statement shall be annexed to a copy of so much of the judgment roll as shall be included in the transcript on appeal, if the appeal be from the judgment; if the appeal be from an order, to a copy of such order.

Sec. 376. The provisions of the last five preceding sections shall not apply to appeals taken from an order made upon affidavit filed; but such affidavit shall be annexed to the order, in the place of the statement mentioned in those sections.

Sec. 377. Upon an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judgment.

Sec. 378. Upon an appeal from a judgment, or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside, or confirm,