unnecessary injury be done to the property he shall be liable therefor.

SEC. 239. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale.

SEC. 240. The court may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of the real property during the foreclosure of a mortgage thereon, or after a sale on execution before a conveyance is executed.

SEC. 241. An action for the recovery of real property, against a person in possession, cannot be prejudiced by an alienation made by such person, either before or after the commencement of the trial.

CHAPTER IV.

ACTIONS FOR USURPATIONS.

SEC. 242. An action may be brought by the district attorney in the name of the people of Montana 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 this 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.

SEC. 243. Whenever such action is brought, the district attorney, in addition to the statement of the cause of action, may also set forth in the complaint the name of the party rightly entitled to the office, with a statement of his right 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 usurpations. thereof, an order may be granted by the judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to trial, and thereupon he may be arrested and held to bail for his appearance at the trial, and for his coupliance with

any order or judgment that may be rendered against him in such

action.

SEC. 244. In every such case, judgment may be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled, or only upon the right of the defendant, as justice shall require.

SEC. 245. If judgment be rendered upon the right of the person 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 duties of the office, and he may by action recover the damages which he shall have sustained by reason of the usurpation of the office by the defendant.

SEC. 216. 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. 247. 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.

CHAPTER I.

APPEALS.

SEC. 248. A judgment, or order in civil action, except when expressly made final in this act, may be revived, as prescribed by this title, and not otherwise.

SEC. 249. 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. 250. 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 the appellee.

SEC 251. An appeal may be taken, First, From a final judgment in action or special proceeding commenced in the court in which the judgment is rendered within six months after the rendition of the judgment. Second, From a judgment rendered on an appeal from the probate court within ninety days after the rendition of the judgment. Third, From an order granting or refusing a new trial or re-hearing, from an order refusing to change the place of trial of an action or proceeding after a motion is made therefor in the case provided by law, or on the ground that the judge is disqualified from hearing or trying the same, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order made after final judgment within sixty days after the order is made and entered in the minutes of the court.

SEC. 252. The appeal shall be made by filing with the clerk of the court with whom 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. 253. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall within twenty days after the entry of such judgment or order prepare such statement, which shall contain the grounds upon which he intends to rely upon the appeal, and so much of the evidence as shall be necessary to explain the grounds, and no more, and shall file the same with the clerk. The appellee may within five days thereafter prepare amendments to the statement, and serve a copy of the same on the appellant. If such amendments be admitted, the statement shall be corrected accordingly, and if not admitted the statement and amendments shall be presented to the judge who tried the case, upon notice of two days to the appellee, and a true statement shall thereupon be settled by such judge.

SEC. 254. 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 be respectively deemed, the former to have agreed to the statement as proposed, and the latter to have agreed to the amendment as proposed, and no settlement of the statement or certificate thereto by the judge shall be required.

SEC. 255. The several periods of time above limited may be enlarged upon good cause shown by the judge before whom the

cause was tried.

SEC. 256. 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. 257. The clerk shall annex the statement, if the appeal be from a final judgment, to the transcript of the proceedings, including a copy of all the pleadings, motions and orders made in the cause; if the appeal be from an order, to such order or a copy thereof.

SEC. 258. The provisions of the last preceding sections shall not apply to appeals taken from an order made upon an affidavit filed, but such affidavit shall be annexed to the order in the place of the statement mentioned in those sections.

SEC. 259. Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.

SEC. 260. 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, or modify any or all of the proceedings subsequent to or dependent upon such judgment or order, and may if necessary or proper order a re-hearing. When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property or rights lost by the erroneous judgment or order; and when it appears to the appellate court that the appeal was made for delay, it may add to the costs and damages as may be just.

SEC. 261. On an appeal from final judgment, the appellant

shall furnish the court with a copy of the notice of appeal, a transcript of all the pleadings, motions, orders, judgments, and proceedings, and the statement annexed if there be one certified by the clerk to be correct. On an appeal from a judgment rendered on an appeal or from an order, the appellant shall furnish the court with a copy of the notice of appeal, the judgment or order appealed from, and a copy of all the papers used in the hearing or trial in the court below, such copies to be certified by the clerk that they are correct. If any written opinion be placed on file on rendering the judgment or making the order in the court below, a copy shall be furnished. If the appellant fail to furnish the requisite papers, the appeal may be dismissed.

CHAPTER II.

APPEAL TO THE SUPREME COURT FROM THE DISTRICT COURT.

SEC. 262. An appeal may be taken from the district court to the supreme court in the following cases: First, From a final judgment rendered in an action or special proceeding commenced in those courts, or brought into the courts from another court. Second, From an order granting a new trial or re-hearing, or refusing the same; from an order refusing to change the place of trial of an action or proceeding after a motion is made therefor in the cases provided by law, or on the ground that a judge is disqualified from hearing or trying the same; from an order granting or dissolving an injunction, and from any special order made after final judgment.

SEC. 263. To render an appeal effectual for any purpose in any case, a written undertaking in not less than three hundred dollars shall be executed on the part of the appellant by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or that sum shall be deposited with the clerk of the court in which the judgment was rendered to abide the event of the appeal. Such undertaking shall be filed, or such deposit made with the clerk, within five days after the notice of the appeal is filed.

SEC. 264. If the appeal be from a judgment or order, directing the payment of money, it shall not stay the execution of the