Appraisers by metes and bounds, according to the certificate of survey, the quantity set apart as aforesaid. SEC. 8. Before proceeding to act, the appraisers mentioned to be sworn. in this act shall be sworn by the officer to do justice between the parties. Their decision shall be delivered to the officer, shall be returned by him with the execution, and shall be conclusive between the parties, and for the protection of the officer against all liabilities. If the value of the homestead, so claimed as aforesaid, does not exceed the amount made exempt by this act, the cost of the proceedings shall be paid by the plaintiff in execution, otherwise by the defendant. Decision conclusive. Costs. Death of owner. Not to extend to unmarried persons. Exception. Application of act. Not to affect tax sales. SEC. 9. The homestead, and other property exempt from forced sale, upon the death of the head of the family, shall be set apart by the probate court for the benefit of the surviving wife and his own legitimate children; provided, that the exemption, as provided in this section, shall not extend to unmarried persons, except when they have charge of minor brothers or sisters, or both, or brothers or sisters' minor children, or a mother, or unmarried sisters living in the house with them. SEC. 10. All heads of families, now occupying and settled upon, or who may hereafter occupy or settle upon, any of the public lands in this Territory, shall be entitled to the provisions of this act, as fully as if they were the owners of the land in fee simple. SEC. 11. Nothing in this act shall be so construed as exempt. ing any real or personal property from sale for taxes. When commenced. Same. By Territory for real property. CHAP. XII.-An Act defining the Time of Commencing [Approved November 21, 1861.] Be it enacted, by the Governor and Legislative Assembly of the SECTION 1. Civil actions can only be commenced within the periods prescribed in this act, after the cause of action shall have accrued, except where a different limitation is prescribed by statute. SEC. 2. When the cause of action has already accrued, the party entitled, and those claiming under him, shall have, after the passage of this act, the whole period herein prescribed, in which to commence an action. SEC. 3. The people of this Territory will not sue any person for, or in respect to, any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless, First. Such right or title shall have accrued within ten years before any action or other proceeding for the same shall be commenced; or unless, Second. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of ten years. of mining SEC. 4. No action for the recovery of mining claims, or For recovery for the recovery of the possession thereof, shall be maintained, efimis. unless it appear that the plaintiff, or his assigns, was seized or possessed of such mining claim in question within two years before the commencement of such action. For recovery property. SEC. 5. No cause of action, or defense to an action, founded upon the title to real property, or to rents, or to services out of real of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question, within five years before the commencement of the act in respect to which such action is prosecuted, or defense made. entry is SEC. 6. Any peaceable entry upon real estate shall be where deemed sufficient and valid as a claim, unless an action be peaceable commenced by the plaintiff for possession, within one year made. after the making of such entry; or within five years from the time when the right to bring such action accrued. adverse SEC. 7. In every action for the recovery of real property, where or the possession thereof, the person establishing a legal title possession to the premises shall be presumed to have been possessed is held. thereof, within the time prescribed by law; and the occupation of such premises by any other person shall be deemed to have been under, and in subordination to, the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for five years before the commencement of such action. under con vey ance, etc. SEC. 8. Whenever it shall appear that the occupant, or Entry made those under whom he claims, entered into the possession of premises, under claim of title, exclusive of any other right, founding such claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises, under such claim, for five years, the premises so included shall be deemed to have been held adversely, except that where the premises so included consist of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. defined. SEC. 9. For the purpose of constituting an adverse pos- Adverse session by any person claiming a title founded upon a written possession instrument, or judgment, or decree, land shall be deemed to have been possessed and occupied in the following cases: Same. Same. Relation of tenant. First. Where it has been usually cultivated and improved. Second. Where it has been protected by a substantial inclosure. Third. Where (although not inclosed) it has been used for the supply of fuel, or of fencing timber, for the purposes of husbandry; or for the use of pasturage, or for the ordinary uses of the occupant. Fourth. Where a known lot, or single farm, not exceeding three hundred and twenty acres in extent, has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated. SEC. 10. Where it shall appear that there has been an actual continued occupation of premises, under a claim of title, exclusive of any other right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely. SEC. 11. For the purpose of constituting an adverse possession, by a person claiming title, not founded upon a written instrument, judgment, or decree, land shall be deemed to have been possessed, and occupied, in the following cases only: First. Where it has been protected by a substantial inclosure. Second. Where it has been usually cultivated or improved. SEC. 12. Whenever the relation of landlord and tenant landlord and shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of five years from the expiration of the tenancy, or where there has been no written lease, until the expiration of five years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumptions shall not be made after the periods herein limited. Descent cast right not affected. Disabilities. SEC. 13. The right of a person to the possession of any real property, shall not be impaired, or affected, by a descent being cast in consequence of the death of a person in possession of such property. SEC. 14. If a person entitled to commence any action for the recovery of real property, or to make an entry, or defense, founded on the title to real property, or to rents, or services, out of the same be, at the time such title shall first descend, or accrue, either: First. Within the age of twenty-one years, or, Second. Insane; or, Third. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; or, Fourth. A married woman. SEC. 15. The time during which such disability shall continue, shall not be deemed any portion of the time in this act run during same. limited for the commencement of such action, or the making Time not to of such entry, or defense, but such action may be commenced, or entry or defense made, within the period of five years after such disability shall cease, or after the death of the person entitled, who shall die under such disability; but, such action shall not be commenced, or entry, or defense made, after that period. of real SEC. 16. Actions, other than those for the recovery of real Limitations property, can only be commenced as follows: Within five of actions years-An action upon a judgment, or decree, of any court of for recovery the United States, or of any State, or Territory, within the property. United States. Within four years-An action upon any contract, obligation, or liability, founded upon an instrument of writing, except those mentioned in the preceding section. Within three years-First. An action upon a liability created by statute, other than a penalty, or forfeiture. Second. An action for trespass upon real property. Third. An action for taking, detaining, or injuring, any goods or chattels, including actions for the specific recovery of personal property. Fourth. An action for relief, on the ground of fraud, the cause of action in such case, not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud. Within two years-First. An action upon a contract, obligation, or liability, not founded upon an instrument of writing. Second. An action against a Sheriff, Coroner, or Constable, upon the liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution. Third. An action upon a statute for a penalty, or forfeiture, where the action is given to an individual, or to an individual and the Territory, except where the statute imposing it prescribes a different limitation. Fourth. An action for libel, slander, assault, battery, or false imprisonment. Fifth. An action upon a statute for a forfeiture, or penalty, to the people of this Territory. Sixth. An action against a Sheriff, or other officer, for the escape of a prisoner arrested or imprisoned on civil process. Seventh. An action on an open account for goods, wares, and merchandise, sold and delivered. Eighth. An action for any article charged in a store account. Action on SEC. 17. In an action brought to recover a balance due upon a mutual, open, and current account, where there have account. been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. SEC. 18. An action for relief, not herein before provided Action for for, must be commenced within four years after the cause of relief. action shall have accrued. SEC. 19. The limitations prescribed in this act, shall apply to actions brought in the name of the Territory, or for the ben Limitations, efit of the Territory, in the same manner as to actions by private actions applied to. parties. menced. Action, when SEC. 20. An action shall be deemed to be commenced, deemed com- within the meaning of this act, when the complaint has been filed in the proper court, and summons issued and placed in the hands of the Sheriff of the county, or other person authorized to serve the same. Absence of time cause of accrued. Limitation, when not SEC. 21. If, when the cause of action shall accrue against defendant at a person, he is out of the Territory, the action may be comaction menced within the term herein limited, after his return to the Territory; and if, after the cause of action shall have accrued, he depart the Territory, the time of his absence shall not be part of the time limited for the commencement of the action. SEC. 22. If a person entitled to bring an action, other than for the recovery of real property, except for a penalty or forfeiture, or against a Sheriff, or other officer, for an escape, be, at the time the cause of action accrued, either: First. Within the age of twenty-one years; or, Second. Insane; or, Third. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life; or, Fourth. A married woman; the time of such disability shall not be a part of the time limited for the commencement of the action. to run. Action by tive of deceased. SEC. 23. If the person entitled to bring an action die before representa the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration. Action by alien enemy. Where judgment is reversed. Action SEC. 24. When a person shall be an alien subject, or citi zen of a country at war with the United States, the time of the continuance of the war shall not be a part of the period limited for the commencement of the action; provided, however, that nothing in this section shall be so construed as to consider any citizen or person of any State engaged in rebellion against the United States Government, as an alien. SEC. 25. If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal. SEC. 26. When the commencement of one action shall be injunction. stayed, by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. |