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common law. In the performance of his duties, he shall be under Shall be under dithe direction of his court.

CHAPTER 3. Duties of Sheriff.

rection of the court.

dorse upon papers

SEC. 603. The sheriff shall endorse upon every summons, order Sheriff shall enof arrest, or for the delivery of property or of attachment or in- time of reception. junction, the day and hour it was received by him.

Execute and make

return as required

by law.

SEC. 604. He shall execute every summons, order or other process, and return the same as required by law, and if he fails to do so, unless he make it appear, to the satisfaction of the court, that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thou- May be fined for sand dollars, and shall be liable to the action of any person aggrieved by such failure.


adjourn court, when.

SEC. 605. If the judge of a court having but one judge, or if Sheriff power to a quorum of the judges of any court having two or more, fail to attend at the time and place appointed for holding their respective courts, the sheriff shall have power to adjourn the court from day to day, until the single judge attend, or a quorum is convened; but if the single judge be not present in his court, or a quorum of judges in their court, within two days after the first day of the term, then such court shall stand adjourned for the term. The sheriff shall exercise the powers and duties conferred Powers and duand imposed upon him by other provisions of this code, by other statutes, and by the common law.

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Duties performed

SEC. 606. Any duty enjoined by this code upon a ministerial by deputies. officer, and any act permitted to be done by him, may be per

formed by his lawful deputy.

SEO. 607. Whenever an oath is required by this code, the Afirmation. affirmation of a person, conscientiously scrupulous of taking an oath, shall have the same effect.

SEC. 608. The time within which an act is to be done, as herein provided, shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded.

Time of comput


SEC. 609. That section three hundred and eighty-six shall not Trial by jury if be construed to impair the right of a party to a jury, if he appear at the trial, by himself or attorney, and demand the same. SEC. 610. The ministerial officer, whose duty it is to take Surety to justify security in any undertaking provided for by this code or by other statutes, shall have the right to require the person offered as

if required.

Sureties must be residents of the Territory.

Meeting of supreme court to revise rules.

Actions pending

to proceed with


Code to apply after judgment.

surety to make an affidavit of his qualifications, which affidavit may be made before such officer. The taking of such an affidavit shall not exempt the officer from any liability to which he might otherwise be subject for taking insufficient security.

SEC. 611. The surety in every undertaking provided for by this code or other statute, must be a resident of this Territory, and worth double the sum to be secured. Where there are two or more sureties in the same undertaking, they must, in the aggregate, have the qualifications prescribed in this section.

SEO. 612. The judges of the supreme court shall, during the month of the first June after this code shall take effect, and every two years thereafter, meet at the capital of the Territory, and revise their general rules, and make such amendments thereto as may be required to carry into effect the provision of this code, and shall make such further rules consistent therewith as they may deem proper. The rules so made shall apply to the supreme court, the district courts, and the probate courts.

CHAPTER 5. Provisions respecting Actions.

SEC. 613. The provisions of this code do not apply to proceedout regard to this ings in actions or suits pending, when it takes effect. They shall be conducted to final judgment or decree, in all respects, as if it had not been adopted; but the provisions of this code shall apply after a judgment, order or decree, heretofore or hereafter rendered to the proceedings, to enforce, vacate, modify or reverse it, except as provided in section five hundred and fortyfive.

When this code operative.

Actions which may not be pro


CHAPTER 6. Provisions as to the Operation of the Code. SEC. 614. Rights of civil action, given or secured by existing laws, shall be prosecuted in the manner provided for by this code, except as provided in section six hundred and fifteen. If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.

SEC. 615. Until the Legislature shall otherwise provide, this secuted under this code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses, nor proceedings under the statutes for the settlements of estates of deceased persons, nor proceedings under statutes relating to dower, nor proceedings under statutes relating to apprentices,

arbitration, bastardy, insolvent debtors or any special statutary remedy, not heretofore obtained by action; but such proceedings may be prosecuted under the code whenever it is applicable.

affect proceedings.

der this act.

SEC. 616. Where, by statute, a civil action, legal or equitable, when the code to is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceeding under such statute, until the Legislature shall otherwise provide; but the parties may, if they May proceed unsee fit, proceed under this act, and in all such cases, as far as it may be consistent with the statute giving such action and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates, by name or otherwise, the kind of action, such action shall be commenced and prosecuted in conformity to this code. Where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly. SEO. 617. Executors, adminisirators and guardians, who have Securities of adgiven bond in this Territory with sureties, according to law, are guardians." not required to give the undertaking mentioned in section five hundred and thirty-one.

Where the stat shall be in conformity with this

utes designate the kind of action it

ministrators and

to plaintiff in pro

SEC. 618. If the district court affirm judgment on petition Special damages in error, it shall also render judgment against the plaintiff in ceedings in error. error for five per cent. upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable grounds for the proceedings in error. SEC. 619. A summons in error shall not be issued in any case in which there is, upon the minutes of the court or among the files of the case, a waiver of error by the party or his attorney, endeavoring to commence such proceedings, unless the court, in which the petition is to be filed, or a judge thereof, shall endorse on the same permission to issue such summons.

when summons be issued.

in error shall not

cases of appeal on ceed without re

error shall pro

gard to the code.

SEC. 620. Cases pending in appellate courts, on writs of error or otherwise, when this code takes effect, shall be conducted to final judgment, as if it had not been adopted, and the liens of judgments and decrees rendered when it takes effect, shall be preserved. They shall be enforced as provided in section six hun- How enforced. dred and thirteen; but process already issued at such time, shall

be carried on and executed.

may appoint mas


SEC. 621. The district court may appoint in each county such District court number of persons as shall be necessary, to be master commis- ter commissionsioners, who shall hold their office for the term of three years, unless removed by the court for good cause.

SEC. 622. Before entering upon the duties of his office, a Must be sworn


master commissioner must be sworn to perform them faithfully, Mast give securi- and with one or more sureties, approved by the court, execute an undertaking to the Territory of Kansas, in such sum as the court shall direct, to the effect that he will pay over all moneys, and faithfully discharge the duties of his office. The undertaking Bond when filed. shall be filed in the office of the county treasurer, and may sued upon as provided in section five hundred and seventy-eight. SEC. 623. A master commissioner shall be allowed such fees as are allowed for similar services to other officers.

Pees of master commissioner.


SEC. 624. This act to take effect and be in force from and after the first day of June next.


Speaker of House of Representatives,

President of the Council.

Approved February 11, 1859.

S. MEDARY, Governor.

Civil Code to take effect when.

All actions on

promissory notes, bills of exchange, &c., incurred without the Territory, to commence within

two years.


AN ACT amendatory to an Act entitled "An Act to establish a Code of
Civil Procedure," passed February, 1859.

Be it enacted by the Governor and Legislative Assembly of
the Territory of Kansas:

SECTION 1. The act to which this is amendatory, shall take effect and be in force from and after the passage of this act.

SEC. 2. All actions founded on any promissory note, bill of exchange, writing obligatory, bond, contract, judgment, decree or other legal liability, made, executed, rendered, entered into or incurred beyond the limits of this Territory, shall be commenced within two years next after the cause or right of such action shall have accrued, and not after.

SEC. 3. This act shall take effect and be in force from and after its passage.


Speaker of House of Representatives.

President of the Council.

Approved February 10, 1859.

S. MEDARY, Governor.


AN ACT to establish a Code of Criminal Procedure.


58-169 1864-195 1865-199 1866 - 183

Be it enacted by the Governor and Legislative Assembly of the Territory of Kansas :

ized to keep the

SECTION 1. The following magistrates shall have power to omcers authorcause to be kept all laws made for the preservation of the public peace. peace, and, in the execution of that power, to require persons to give security to keep the peace, in the manner provided in this article: The judges of the supreme court, throughout the Territory; judges of the district courts, within their respective districts; justices of the peace, in their respective counties; the mayors and chief officers of incorporated cities and towns, within the limits of such corporation.

trate on com

SEC. 2. Whenever complaint shall be made in writing, and Duty of magisupon oath, to any such magistrate, that any person has threatened plaint made. or is about to commit any offence against the person or property of another, it shall be the duty of such magistrate to examine such complaint, and any witnesses who may be produced, on oath; to reduce such examination to writing, and cause the same to be subscribed by the parties so examined.

sue a warrant,

SEC. 3. If it appear, upon such examination, that there is Magistrate to isreason to fear the commission of any such offence by the person complained of, it shall be the duty of the magistrate to issue a warrant, under his hand, with or without seal, reciting the complaint, and commanding the officer, to whom it is directed, forthwith to apprehend the person so complained of, and bring him before such magistrate.

SEC. 4. Upon such person being brought before such magistrate, it shall be the duty of the magistrate to examine all witnesses which either party may require to be examined, and if it shall appear, to the satisfaction of such magistrate, that there is reason to fear the commission of such offence, he shall require the party complained of to enter into a recognizance in such sum, not exceeding five thousand dollars, as such magistrate shall direct, with one or more sufficient securities, to appear before the district court on the first day of the next term, and not depart the same without leave; and, in the meanwhile, to keep the peace toward the people of this Territory, and particularly toward the complainant.

When person combrought before

plained of is

May cause him to nizance to keep

enter into recog

the peace, when.

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