a neglect for the space of thirty days after the affirmance on appeal of a judgment directing the payment of money, to pay the amount directed to be paid on such affirmance, shall be deemed a breach of the undertaking on such appeal. A neglect for a space of thirty days after the confirmation of the report of a referee, to whom a reference has been ordered for the purpose of ascertaining the damages to be paid, on the affirmance of any other judgment or order appealed from, to pay the amount of damages so ascertained and the costs of such reference, shall be deemed a breach of the undertaking on such appeal. The dismissal of an appeal or writ of error by the appellant or plaintiff in error, or by the court for want of prosecution, unless the court shall, at the time, otherwise expressly order, shall render the sureties upon any undertaking or bond, given under this act, liable in the same manner and to the same extent as if the judgment or order appealed from, or the judgment brought up on error had been affirmed.

§ 22. PROCEEDINGS ON APPEAL MAY BE AMENDED TO PERFECT APPEAL] When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken, or the presiding judge thereof, or the Supreme Court, or any one of the Justices thereof, may permit an amendment, or the proper act to be done on such terms as may be just.

§ 23. WHAT ORDERS REVIEWABLE.] The following orders, when made by the court, may be carried to the Supreme Court:

1. An order affecting a substantial right, made in any action. when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

2. A final order affecting a substantial right, made in special proceedings, or upon a summary application in an action for judg

ment.

3. When an order grants, refuses, continues or modifies a provisional remedy, or grants, refuses, modifies or dissolves an injunction; when it sets aside or dismisses a writ of attachment for irregularity; when it grants or refuses a new trial; or when it sustains or overrules a demurrer.

4. When it involves the merits of an action or some part thereof; when it orders judgment on application therefor, on account of the frivolousness of a demurrer, answer or reply, or strikes off such demurrer, answer or reply on account of the frivolousness thereof.

5. From orders made by the district court, vacating or refusing to set aside orders made at chambers, where, by the provisions of this act an appeal might have been taken, in case the order so made at chambers had been granted or denied by the district court in the first instance. For the purposes of an appeal from an order, either party may require the order to be entered by the clerk of record, and it shall be entered accordingly.

§ 24. DETERMINATION ON APPEAL.] Upon an appeal from a judgment, as well as upon a writ of error, the Supreme Court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment, appearing upon the record transmitted or returned from the district court, whether the same were excepted to or not; nor shall it be necessary in any case to take any exception or settle any bill of exceptions to enable the Supreme Court to review any alleged error which would, without a bill of exceptions, appear upon the face o the record. Any questions of fact or of law, decided upon trials by the court or by referee, may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned.

$ 25. COURT MAY GRANT A REHEARING WHAT CLERK MUST TRANSMIT.] Upon an appeal from a judgment or order, or upon a writ of error, the Supreme Court may reverse, affirm or modify the judgment or order, and as to any or all of the parties; and may, if necessary, or proper, order a new trial; and if the appeal is from a part of the judgment or order, may reverse, affrm or modify as to the part appealed from. In all cases the Supreme Court shall remit its judgment or decision to the court from which the appeal or writ of error was taken, to be enforced accordingly; and if from a judgment, final judgment shall thereupon be entered in the court below in accordance therewith, except where otherwise ordered, the clerk of the Supreme Court shall remit to such court the papers transmitted to the Supreme Court on the appeal or writ of error, together with the judgment or decision of the Supreme Court thereon, within sixty days after the same shall have been made, unless the Supreme Court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such parties to move for a rehearing. In case such motion for a rehearing is denied the papers shall be remitted within twenty days days after such denial. The clerk of the Supreme Court shall in all cases, except when the order or judgment is affirmed, also transmit with the papers so returned by him a certified copy of the opinion of the Supreme Court, and his fees for such copy shall be taxed and allowed with his other fees in the case.

§ 26. WHEN NEW TRIAL ORDERED-TIME LIMITED.] In every case in error, or on appeal, in which the Supreme Court shall order a new trial, or further proceedings in the court below, the record shall be transmitted to such court, and proceedings had therein within one year from the date of such order in the Supreme Court, or in default thereof, the action shall be dismissed, unless upon good cause shown, the court shall otherwise order.

§ 27. This act shall take effect and be in force from and after its passage and approval.

Approved, March 11, 1887.

CHAPTER 21.

EXCEPTIONS.

AN ACT To Amend Article 8 and Article 9 of Chapter 12 of the Code of Civil Procedure.

Be it Enacted by the Legislative Assembly of the Territory of Dakota:

§ 1. DEFINING EXCEPTIONS.] An exception is an objection upon a matter of law to a decision made, either before or after judgment by a court, or judge, in an action or proceeding. The exception must be taken at the time the decision is made, except as provided in section two of this act.

§ 2. WHAT ARE DEEMED EXCEPTED TO.] The verdict of the jury, the final decision in an action or proceeding, an interlocutory order or decision finally determining the rights of the parties, or some of them; an order granting or refusing a new trial; an order sustaining or overruling a demurrer, allowing or refusing to allow an amendment to a pleading, striking out a pleading or a portion thereof, refusing a continuance; an order, made upon ex parte application and an order or decision made in the absence of a party are deemed to have been excepted to.

§ 3. How STATED.] Section 279 of the Code of Civil Procedure is amended so as to read as follows: "No particular form of exception is required, but when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient; but the specification of such particulars as provided in section 288 shall be sufficient, the objection must be stated, with so much of the evidence or other matter as is necessary to explain it, and no more. Only the substance of the reporter's notes of the evidence shall be stated. Documents on file in the action or proceeding may be copied, or the substance thereof stated, or a reference thereto sufficient to identify them may be made."

§ 4. TIME TO SETTLE BILL OF EXCEPTIONS.]

Section 281 of

the Code of Civil Procedure is amended so as to read as follows: "When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment, if the action were tried with a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action is pending, or a judge thereof, may allow, prepare the draft of a bill

and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken, upon which the party relies. Within twenty days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days notice to the adverse party, or be delivered to the clerk of the court for the judge. When received by the clerk, he must immediately deliver them to the judge, if he be in the county; if he be absent from the county and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such party, immediately forward them by mail or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to to the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. At the time designated the judge must settle the bill, if no amendments are served, or if served are allowed, the proposed bill may be presented with the amendments, if any, to the judge for settlement, without notice to the adverse party. It is the duty of the judge, in settling the bill, to strike out of it all redoundant and useless matter, so that the exceptions may be presented as briefly as possible. When settled the bill must be signed by the judge, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk."

§ 5. IN CASE OF A VACANCY.] Section 284 of the Code of Civil Procedure is amended so as to read as follows: "A judge may settle and sign a bill of exceptions after, as well as before he ceases to be such judge. If such judge, before the bill of exceptions is settled, dies, is removed from office, becomes disqualified, is absent from the Territory, or refuses to settle the bill of exceptions, or if no mode is provided by law for the settlement of the same, it shall be settled and certified in such manner as the Supreme Court may by its order or rules direct. Judges of the district court and the Supreme Court shall respectively possess the same power in settling and certifying statements as is by this section conferred upon them in settling and certifying bills of exceptions."

§ 6. NOTICE WHAT TO CONTAIN -WHEN HEARD.] Section 288 of the Code of Civil Procedure is amended so as to read as follows: "The party intending to move for a new trial must, within twenty days after the verdict of the jury, if the action were tried by a jury, or after notice of the decision of the court, if the action were tried without a jury, serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made and whether the same will be made

upon affidavits or the minutes of the court, or a bill of exceptions, or a statement of the case.

1. If the motion is to be made upon affidavits, the moving party must, within twenty days after serving the notice, or such further time as the court in which the action is pending, or a judge thereof may allow, serve a copy of such affidavits upon the adverse party, who shall have ten days to serve counter-affidavits, a copy of which must be served upon the moving party. Motions for new trial on the ground of newly discovered evidence may be made at any time before the close of the term next succeeding that at which the trial was had.

2. If the motion is to be made upon a bill of exceptions and no bill has already been settled as hereinbefore provided, the moving party shall have the same time after service of the notice to prepare and obtain a settlement of a bill of exceptions as is provided after the entry of judgment, or after receiving notice of such entry by section two hundred and eighty-one, and the bill shall be prepared and settled in a similar manner. If a bill of exceptions has been already settled and filed, when the notice of motion is given, such bill shall be used on the motion. When the notice designates as the grounds of the motion errors in law occurring at the trial and excepted to by the moving party, such bill of exceptions shall specify the particular errors upon which the party will rely.

3. If the motion is to be made upon a statement of the case, the moving party must, within twenty days after service of the notice, or such further time as the court in which the action is pending, or the judge thereof, may allow, prepare a draft of the statement and serve the same, or a copy thereof on the adverse party. If such proposed statement be not agreed to by the adverse party, he must within twenty days thereafter prepare amendments thereto and serve the same, or a copy thereof, upon the moving party. If the amendments be adopted the statement shall be amended accordingly, and then presented to the judge who tried or heard the cause for settlement, or be delivered to the clerk of the court for the judge. If not adopted, the proposed statement and amendments shall within ten days thereafter be presented by the moving party to the judge, upon five days' notice to the adverse party, or delivered to the clerk of the court for the judge; and thereupon the same proceedings for the settlement of the statement shall be taken by the parties, and clerk, and judge, as are required for the settlement of bills of exception by section two hundred and eightyone, if no amendments are served within the time designated, or, if served, are allowed, the proposed statement and amendments, if any, may be presented to the judge for settlement, without notice to the adverse party. When the notice of intention designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the