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SEC. 5. If the party appealing be the party in whose favor judgment was rendered, he shall likewise execute and file an undertaking as aforesaid, in a sum equal to double the amount of the costs in the case, conditioned to pay all costs that may be adjudged against him, and for the prosecution of such appeal with effect

SEC. 6. The undertaking provided for in the two preceding sections, shall be accompanied by the affidavit of the sureties that they are residents of the county, and householders or freeholders thereof, and each worth the amount specified in the undertaking, over and above their debts, liabilities and property by law exempt from execution, but several sureties may state that they are worth less than the amount mentioned in the undertaking, beside such exemptions, if the whole amount equals the amount of two sufficient sureties.

SEC. 7. Within ten days after filing the notice of appeal and undertaking provided for in the preceding sections, and payment of fees therefor, the said judge or clerk of said court shall make a full and complete transcript from the docket of all proceedings had in said action, and transmit the same, together with the complaint, answer, motions, pleadings, and all other papers pertaining to or belonging to said cause, to the clerk of said district court.

SEC. 8. If any execution shall have been issued upon a judg ment appealed from, the judge or clerk of said court, upon receiving the notice and undertaking as hereinbefore provided, shall issue an order directing the officer having such execution in his possession, or charged with the execution of the same, to stay all proceedings thereunder. Such officer, upon the payment of his fees for services rendered on such execution, shall thereupon relinquish all property levied upon by him, and deliver the same, together with all money collected from sales or otherwise, to the judgment debtor.

SEC. 9. If the party appealing to the district court, as provided in this act, shall fail to reduce or enlarge the judgment appealed from, ten dollars or more, or revise the same in said district court, he shall not recover any of the costs of appeal.

SEC. 10. That all appeals taken by virtue of this act, shall be tried in the district court upon the papers in the cause, as if the same had originally been instituted in said court, unless said

court, upon such terms as may be just, allow other papers to be filed therein, and both appellant and respondent shall have the benefit of objection taken in said probate court.

SEC. 11. That the sheriffs of the different counties of this ter ritory are charged with the execution of process issued from said probate court, in like manner as provided for in cases in the district court, for which services they shall receive fees as now provided by law.

SEC. 12. This act shall be exclusively applicable to the probate court in the exercise of jurisdictional powers under and by virtue of an act entitled "An Act to regulate proceedings and define the jurisdiction of the probate courts of the territory of Montana," approved December twenty-third, one thousand eight hundred and sixty-seven.

SEC. 13. In all cases of appeals taken under the third section of the act last aforesaid, the same shall be perfected and taken, and with like effect when taken, as provided for in cases of appeals in justices' courts in criminal cases.

SEC. 14. This act to take effect and be in force from and after its passage.

Approved January 11, 1869.

AN ACT creating the Office of Clerk of Probate Court.

Be it enacted by the Legislative Assembly of the Territory of Montana: SECTION 1. That the office of clerk of probate court be and the same is hereby created and established for each and every probate court in the territory of Montana.

SEC. 2. The said probate clerks shall be appointed by their respective judges, to hold their office at the will and pleasure of the probate judge so appointing them: Provided, however, That the appointment of clerk shall be optional with the judge in such counties; when the judge does not deem it necessary, he may and is hereby authorized to act as ex officio clerk, subject to give such additional bond as is provided in section three.

SEC. 3. The clerk so appointed or judge acting ex officio clerk of his own court, shall execute and file a bond, with two or more sufficient sureties, in the penal sum of one thousand dollars, payable to the territory of Montana, conditioned for the faithful performance of his duty, which bond shall be approved by the county commissioners of the respective counties, and filed in the office of the county clerk, prior to his entering upon the discharge of his duties as such probate clerk.

SEC. 4. The clerks of said probate court shall be entitled to such fees as are allowed to probate judges for services, as may be rendered in the capacity of clerk of said probate court.

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

Approved December 30, 1868.

AN ACT in relation to Costs.

Be it enacted by the Legislative Assembly of the Territory of Montana: SECTION 1. That in any suit hereafter commenced in any of the courts of this territory, the defendant may file a motion asking the court to dismiss the action, or rule the plaintiff to [give] such security as will be approved by the court, which motion shall be accompanied by the affidavit of the defendant, his agent or attorney, to the effect that the plaintiff is insolvent or is not able to pay the cost likely to accrue upon said case, and the court shall dismiss such action, unless the plaintiff justifies to the satisfaction of the court by competent witnesses, or give such bond as will be approved by the court, or deposit such amount of money with the clerk as shall be required by the court.

SEC. 2. That any person may commence and prosecute an action in any of the courts in this territory, who will file an affidavit, stating that he has a good cause of action, that he is unable to pay the costs in money, or to procure security to secure the same; then it is hereby made the duty of the officers of the courts to issue all writs and serve the same without demanding or receiv ing their fees in advance.

SEC. 3. That section one, of an act entitled "An Act providing for the payment of jurors, witnesses and officers in Montana territory," approved November 20, 1867, be and the same is hereby repealed.

SEC. 4. This act to take effect and be in force from and after its passage.

Approved January 15, 1869.

AN ACT to amend an "Act creating the office of District Attorney in each of the Organized Judicial Districts of Montana Territory," approved January 10, 1865. Be it enacted by the Legislative Assembly of the Territory of Montana: SECTION 1. That section three of said act be so amended as to read as follows: "They shall be public prosecutors in their respective districts, and shall sign all bills of indictment that may be found by the grand jury, and prosecute and defend on behalf of the people all public prosecutions and civil suits arising in their districts before the supreme and district courts, wherein the people of this territory are a party.”

SEC. 2. Section four of said act be so amended as to read as follows: "They shall, when required by any member of the grand jury, give their opinion to them on any matter of law pertaining to their duties as grand jurors, and shall be the legal advisers of territorial, county and township officers, and shall, when requested by any territorial, county or township officer, give to them their opinion on any matter of law pertaining to their duties, without fee or reward. They shall also prosecute on behalf of the people all forfeited recognizances, and shall receive ten per centum of all moneys collected, and ten per cent. on all forfeited bonds and recognizances and undertakings wherein the people are a party, or necessarily involved in the action."

SEC. 3. All laws in conflict with this act are hereby repealed. SEC. 4. This act to take effect and be in force from and after its passage.

Approved January 15, 1869.

AN ACT to repeal Section 20 of an Act entitled "An Act concerning the Foreclosure of Mortgages," approved February 8, 1865.

Be it enacted by the Legislative Assembly of the Territory of Montana: SECTION 1. That section twenty of an act entitled "An Act concerning the foreclosure of mortgages," approved February 8, 1865, be and the same is hereby repealed.

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

Approved January 14, 1869.

AN ACT conferring authority on Probate Judges to issue Writs of Injunction, Quo Warranto and Mandamas in certain cases.

Be it enacted by the Legislative Assembly of the Territory of Montana : SECTION 1. That whenever an action shall have been commenced in any of the district courts of this territory, wherein writs of injunction, quo warranto and mandamus may properly issue, by virtue of the provisions of an act entitled "An Act to regulate proceedings in civil cases in the courts of justice of Montana territory," approved December 2, 1867, the probate judge of the county in which such action is brought, in case of the absence or disability of the district judge, is hereby authorized to issue such writs, which shall have the same force and effect as if issued irom the district court.

SEC. 2. Whenever such writs shall be issued by the probate judge in pursuance with the provisions of this act, the same shall be made returnable to the district court of the county in which said action is brought, or to which said county may be attached for judicial purposes, which shall be executed and returned in like manner as if issued from said district court.

SEC. 3. In all cases of contempt, arising from the violation of any writ or order issued under the provisions of this act, the district judge shall hear and determine the same as though said

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