may be adjudged, in case such writ of error shall be dismissed or the judgment or determination of the district court affirmed.

R. R. Co. vs. Saxton et al., 3 N. M. Rep. 443.

3145. Exception to the decision of the court upon any matter of law arising during the progress of the cause, or to the giving or refusing of instructions, must be taken at the time of such decision. In equity causes no exception shall be required.

See ante-section eight hundred and ninety-eight. For bills of exception see
ante-section eight hundred and ninety-six.

Writs of error, grant of, limited to

§ 3146. Hereafter no writ of error shall be allowed by the supreme court of this territory, except within one year after one year. the rendition of the judgment, on which said writ of error is based, and that said supreme court shall make rules for the government of the practice in writs of error in common law cases, which said rules shall not conflict with any of the laws 1: Jan. 9. in force in this territory.

Pearce vs. Strickler, 49 Pac.. 727.

§ 3147. Appellants and plaintiffs in error in any criminal case removed into the supreme court of the territory for review shall not be required to print the record, nor any part thereof; and in civil cases removed into said supreme court for review, appellants or plaintiffs in error shall not be required to print the record nor any part thereof, unless the amount of the judgment to be reviewed or the value of the property in dispute shall exceed one thousand dollars, exclusive of costs.

L. 1874, chap. 23.

Record of lower court, to be printed.

L. 1884, chap. 7. § 1: April 3

Costs, who shall recover.

§ 3148. For all civil actions or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is § 1: Sept. 22, 1845. made by law.

§ 3149. In all actions founded on debt or other contract, if the plaintiff recover an amount which, exclusive of interest, is below the jurisdiction of the court, he shall recover judg ment therein, but the costs shall be adjudged against him unless the plaintiff's claim, as established on the trial, shall be reduced by off-sets below the jurisdiction of the court.

C. L. 1865. chap. 45,

Actions for debt or contract.

Id. § 2.

C. L. 1865. chap. 45, § 3: Sept. 22, 1846.

§ 3150. When an appeal shall be taken from the judgment of a probate court or justice of the peace against the appelto be adjudged how. lant, the costs shall be adjudged as follows:

Costs on appeal.

First. If the judgment be affirmed, or the appellee on a trial anew shall recover as much or more than the amount of the judgment below, the appellant shall pay costs in both courts.

Second. If, on such trial, the judgment of the appellate court shall be in favor of the appellant, the appellee shall pay costs in both courts.

Third. If the appellant shall, at any time before the appeal is perfected, tender to the appellee any part of the judgment, and he shall not accept it in satisfaction, and the appellee shall not recover more than the amount as tendered, he shall pay costs in the appellate court, but not in the court below, he shall recover costs in both courts.

Martinez vs. Lucero, vol. 1, page 208, N. M. Rep.

§ 3151. If such appeal be from a judgment in favor of the appellant, costs shall be adjudged as follows: If upon the trial anew, the appellant shall not recover more than the judgment below, he shall pay the costs of the appellate court. If he recover nothing, the costs shall be adjudged against him in both courts. If he recover more than the judgment below, he shall recover costs in both courts.

§ 3152. In case of appeal in civil suits, if the judgment of the appellate court be against the appellant, it shall be rendered against him and his securities in the appeal bond.

§ 3153. When any demand shall be presented to the probate court for allowance against the estate of any decedent, if the demand be allowed, the estate shall pay the costs; if disallowed, the party presenting the demand shall pay the costs. $3154. If any person commence a suit in the district court against an estate, within twelve months from the date of the administration, he may recover judgment but shall pay all costs.

§ 3155. Hereafter it shall not be legal in any civil suit for the clerk of any district court to tax in favor of the prevailing party the costs of more than four witnesses, unless the court shall certify upon the record that the attendance of more than four witnesses was necessary in the case.

§ 3156. It shall be the duty of the clerks of the various district courts to provide suitable bound books to be kept in their respective offices, and to be called Cost Books, in which it shall be the the duty of said clerks, at the conclusion of the term of court, to enter the names of the parties to the suits and the nature of the causes in which costs have accrued, or have been adjudged or taxed during the term, together with each item of the same and the name of the officer who performed the service; and the nature and quantity and amount of costs so accrued shall at all times be open for the examination of any person interested therein.

§ 3157. When final judgment or decree shall be rendered in any cause, and execution shall be issued thereon, the clerk shall make a complete copy of all the costs taxed against the defendant in execution, under his hand and the seal of the

court, together with a certificate that the said bill of costs is C. L. 1865, chap. 45. correct. The said bill of costs shall be delivered to the offi- $18: Sept. 29. 1846, cer to whom the execution shall be directed for execution, and when the writ shall be served, the officer shall deliver the said bill of costs to the defendant in execution, and shall receipt the same when paid, and the said clerk shall be entitled to fifty cents for such copy, to be paid as other costs.

§ 3158. In every cause in which either party shall become liable to pay costs, the clerk may make out a transcript from the cost book as above directed, and the same shall have in all respects the force and effect of an execution, and shall be served, collected and returned in the same manner.

Transcript of costs, effeet of.

Id. § 19.

Officer claiming exorbitant fees:pen

Costs, retaxing of.

§ 3159. Any officer who shall knowingly claim for his services in any cause in the district court higher fees than alty. provided by law, or shall claim fees for services not rendered, shall be liable to the party against whom such fraudulent charge is made in three times the amount of such charge: Provided, That the same has been paid by the party; and when such payment has been made, the party against whom the charge has been made may petition the court to retax the costs, and if the court shall find that fraudulent charges have been made and paid, it shall adjudge the officer in fault to pay to the party injured three times the amount of the charges, and enforce the collection of the same by means of an execution as in other cases.

Id. § 20.

§ 3160. The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.

Ejectment.
C. L. 1865, chap. 33.

§ 1; Dec. 1847.

Ejectment for recovery will lie.

§ 3161. An action of ejectment will lie for the recovery of the possession of a mining claim, as well also of any real estate, where the party suing has been wrongfully ousted from the possession thereof, and the possession wrongfully 5: Jan. 11. detained.

§ 3162. The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession.

L. 1876, chap. 38. §

Action, how to be prosecuted.

C. L. 1865, chap. 33: $2; Dec. 1817.

§ 3163. Any person claiming such premises may, on motion, be made a defendant.

§ 3164. It shall be sufficient for the plaintiff to declare in his petition that on some day, in such petition named, he was entitled to the possession of the premises, describing them: and that the defendant, on a day named in the petition, afterwards entered into such premises, and unlawfully withheld from the plaintiff the possession thereof, to his damage, for any sum he may name.

§ 3165. The defendant may plead, Not guilty, and under such plea give in evidence any testimony showing that the plaintiff is not entitled to such possession, or that the title is in some other person.

§ 3166. To entitle the plaintiff to recover in an action of ejectment, it shall not be necessary for the plaintiff to prove that at the time of the commencement of the action the defendant was in possession of the premises claimed, but the fact of such possession shall be taken as admitted by the defendant upon his filing a plea of not guilty.

§ 3167. The action shall be prosecuted in the real names of the parties, and may be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession.

§ 3168. It shall be sufficient to entitle the plaintiff to recover, to show that at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff had a right to the possession thereof.

§ 3169. In any action brought by a joint tenant, or tenant in common, against a co-tenant, he shall be required to prove an actual ouster or act equivalent thereto.

§ 8170. If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff's title, under these limitations:

First. If the defendant had knowledge of the plaintiff's claim or title, then for the whole time he had such knowledge.

Second. If he had no such knowledge, then from the commencement of the action.

Chaves vs. Whitney et al., 4 N. M. Rep., 611.

§ 3171. If the plaintiff's title expire after the action is brought, but before its determination, the verdict and judg ment shall be for damages and costs only.

§ 3172. If the plaintiff prevail, the judgment shall be for the recovery of the possession, and for the damages and costs.

Montoya vs. Donohoe, vol. 2, page 214. N. M. Rep.

§ 31783. Upon judgment for the recovery of possession, a writ of possession shall be issued, and the sheriff shall deliver to the plaintiff the possession of the premises, and also collect the damages and costs, as on execution in other cases. Romero vs. Munos, vol. 1, page 314, N. M. Rep.

3174. If the judgment be for damages and costs, an execution shall issue as in personal action.

Improvements and

profits to be proved;

§ 3175. Hereafter in all actions of ejectment which are now pending or which may hereafter be brought, when the when. defendant or tenant in possession in such suit shall have title of the premises in dispute either by grant from the governments of Spain, Mexico or the United States, deed of conveyance founded on a grant or entry for the same, such defendant or defendants may file at the time of the filing of the pleas in said cause, a notice to the plaintiff, that on the trial of said cause, he or they will prove what improvements he or they may have made on the said lands in dispute and the value thereof. After which notice being filed, the said plaintiff may at the same time, file a motion to the said defendant or defendants or tenant in possession, that in like manner he or they will prove the amount of the mesne profits of the said premises: Provided, That no improvements shall be taken into valuation and allowed for, that shall have been made after the execution of the original summons, in such suit or after the plaintiff, his agent or attorney shall have served said defendant or tenant in possession with a written notice that he or they claim title to the land, specifying in said notice the nature of the claim; nor shall any mesne profits be valued and recovered except such as may have accrued after the com- 13: Feb. 3, 1858. Tr. mencement of the suit, or notice given as aforesaid.

Pino vs. Hatch, vol. 1, page 125, N. M. Rep.

Proviso.

C. L. 1865, C. 33, §

Verdict for plaint

§ 3176. When the jury shall find a verdict for the plaintiff now to be found. in such action, they shall also find the value of the improvements in favor of the defendant or tenant in possession,

proved in the manner aforesaid, and further shall find the Defendant's rights. amount of the mesne profits proved to have accrued as aforesaid, as also the value of the land in its natural state without the improvements, and if the value of the improvements should exceed the amount of the mese profits, the balance or overplus thereof shall be found by the jury in favor of the defendant or tenant in possession, and such plaintiff or plaintiffs shall not have a writ of possession awarded or issued against the defendant or defendants until he or they shall have paid to the said defendant or defendants, their agent or attorney the full amount of the balance or overplus, which the value of the improvements is found to exceed the mesne profits as aforesaid. And if the mesne profits as aforesaid, shall exceed the value of the improvements as aforesaid, the jury aforesaid shall find the amount of such balance or overplus against the defendant or tenant in possession and judgment shall be entered up against said defendant or tenant in possession for such balance or overplus so found against them.

§ 3177. If upon the rendition of any judgment in any such suit, the value of the improvements put upon the land by any defendant or tenant in possession as aforesaid shall exceed the net mesne profits of said land, the plaintiff or plaintiffs shall at the term of the court at which said judgment is rendered, elect whether he will take his judgment and pay for the improvements so assessed against him or take pay from the defendant or defendants for the net profits and the value of the land in its natural state without the improvements, and

Id. § 14.

Plaintiff may elect