n il oaths of office, and other oaths required to he taken by any person upon any lawful occasion,, and to take

. affidavits and depositions, concerning any matter orthing, process or proceeding, pending or to be com­menced, in any court or before any Justice of the

. Peace; or on any occasion, wherein such affidavitor deposition are authorized or required, by law, to be taken.

Lof-isiative As- Sec, 4. The chairman or any member of any com- ; mittee, appointed by either branch of the Legislative

administer on,ths. Assembly of this territory, or any member of any joint committee, appointed by the two Houses of the Legislative Assembly, shall he authorized to adminis­ter oaths and affirmations to witnesses, touching any matter or thing which may he under the consideration or investigation of the committee.

' PtrionaflwonnriE Sec, 5. A ll oaths, affirmations, affidavits and deposi- «&fiM“ onpenaaity. tions, administered or taken as provided in this act,

shall subject any person, who shall so swear or affirm wilfully or falsely, in matter, material to any issue or point in question, to the pains and penalties inflicted

■ by law, for the time being, on persons guilty of wilfuland corrupt perjury.

Sec. if This act shall take effect and he in force from and after its passage. , ■

Approved November 4th, 1861.

S5S I paACTICE OP LAW.

AJT ACTCreating a Lien in favor o f Mechanics, in certain eases.

Be it enacted by the Council and House of Jiepresentativa of Colorado Territory. ' .

m u to have lien Section" 1. That any person who shall, by contract :®ad upoa what. wpp tpc owner of any piece of land or town lot, fur­

nish. labor or materials for erecting or repairing any building, or the appurtenances belonging t© any build­ing, on such land or lot, shall havo a lien upon the whole tract of land or town lot, in the manner herein provided, for the amount due to him for such labor and material. ' .

AttestedneeoHBts Sec. 2. That every mechanic, artisan or other person mauHaiVtotihed doing or performing any work towards the erection or to ownerwho VBbaii repair of any house, mill, manufactory or other build- retiiathe a mo u n t . o r appurtenance, erected under a contract or agree­

ment between [the owner of such building and] the person who shall furnish material for the construction of such building, whose demands for work so done or material eo furnished have not been paid and satisfied,

’ , may deliver to the owner of such building an attested

. PRACTICE OF LAW. 259 ''account of the work and labor thus performed, or the materials thus furnished and remaining unpaid, and such owner shall retain, out of his subsequent pay­ments to the contractor, the amount of such work and labor or materials furnished, for the benefit of the person so performing or furnishing.the same.

Sec. 3. Whenever any account of labor performed Proeediags b&- or materials furnished, as referred to in the-preceding^t“ otoi“erdi*“d section, shall he placed in the hands of the owner ofsjujjentsettle1/ ^ any building, as above stated, or his authorized agent, ra loa' it shall be the duty of such owner or agent to furnish his contractor with a copy of such papers, so that if there he any disagreement between such contractor and his creditor, they may amicably adjust, or by arbi­tration ascertain, the tine sum due; and if the con­tractor shall not, within ten days after the receipt of such papers, give the owner written notice that he in­tends to dispute the claim, or if in ten days after giv­ing such notice ho shall refuse or neglect to have the matter adjusted, as aforesaid, he shall be considered as assenting to the demand, and the owner shall pay the same when it becomes due.

Sec. 4. That if the contractor shall dispute the Disputes hshreo* claim of his journeyman or other person for work done, jjJHSwto“ or materials furnished as aforesaid, and the matterbrarbitration. 4 cannot be adjusted between themselves, it shall be . submitted to the arbitrament of three disinterested persons, one to be chosen by each of the parties and one by the two thus chosen, and their decision, or the decision of any two of them, shall bo conclusive in the case submitted. . .

Sec. 5. That when the account shall he adjusted as ContruciorfaWa* above provided and the contractor shall not w ithin‘Oop£“ opriie!r ™aM ten days after it is so adjusted, pay the same to his " ' creditor, with the cost incurred, the owner shall pay . the same out of the funds, as above provided: which amount, due may bo recovered from tlio said owner, by . the creditor of the said contractor, and to the extent in value, of any balance due by the owner to his contrac­tor, under the contracts with him at the time of the notice first given as aforesaid, or subsequently accruing to such contractor, under the same, if such amount shall he less than the sum due from said contractor to hia creditor.

Sec. 0. That if by collusion or otherwise the owner Collusion hev»c*a of any building erected by contract as aforesaid, shall pay to his con tractor'any money in advance of the sum due on said contract, and if the amount still due the contractor after such payment has been made, shall be insufficient to satisfy the demand made in conformity with the provisions of this act, for labor done and

260- p r a c t ic e op L a w .

materials- furnished, the owner shall he liable to the amount that would have been due,.at the time of bis receiving the amount of such work or materials in *Le same manner as if no such payment had been m ale.

To what contract Sec. 7. The lien shall extend ter all work done, and lien eitemb. materials furnished, under the provisions of the con­

tract, whether the kind or quality of the work, or amount to he paid, he specified or not: Provided, That the time of'payment he not extended beyond the period o f six months from the time stipulated for the com­

' pletion of the contract._ nr Alins petition See. 8. W hen any sum, due by such contract, shall

remain unpaid after the same is payable, the creditor rnenL by order oi'may, upon bill or petition to-the District Court, iu the

eouuty in which the land or lot lies, obtain.an order for the sale thereof, and for applying the proceeds of such sale to the discharge of his demands; and the filing o f tbe*bill or petition- in the Clerk’s office, and suing out a summons thereon, shall he deemed the commencement of the suit.

Petitiim—whntto Sec. 9, The hill or petition stall contain a- briefrSneiinc'haucc-statement o f ’the contract on which it is founded, and ry cases. of the amount due thereon, with a description of the

premises which, are subject to the lien, and all other . material facts and circumstances necessary do a full

understanding of the rights of the parties, and shall be considered as the foundation of the plaintiff’s action; and upon the filing-of which, with the Clerk, a summons shall issue thereon, against all persons i made parties, as is required upom filing bills in chancery. < ;

Court ma er- ®eC: ®'or purpose- of bringing all parties inmitamendment* to interest before the court, the court shall have power : Kavaeinlmendpi>“ er to permit amendments to any part of the pleadings, ns conrts of chan- to fggue process, make all. orders - requiring notice i

to be given by publication, that are or may bo author­ized in proceedings in chancery; and the court shall have the same power and’jurisdiction over the parties

1 and subjects, that are or may be conferred upon courts in chanceiy. ’ -

servico o f '*010- S0e- ' ^ ^uitSj instituted under the provisions o f moos, and this act; shall be placed on the common law docket, acce of came. and shall stand fo r trial at the term of the ‘court to- ■

which the summons is made returnable; the summons- shall be served by the Sheriff, at process in chancery, hut if hot served ten days before u e return day thereof, the cause shall bo continued, unless the parties agree to a trial at that term of court. _

Pro-’eadiog» as ^ec- ! “• Defendants, in proceedings under the provi- in chancery,DS 83 slows of this act, shalf answer the bill or petition, under

oath, ‘and the plaintiff shall except. or reply to the ■

p r a c t ic e of l a w . 261an' iver, as though the proceeding lias in chancery; J A auswej shall be regarded as the plea of the defen- udht, and by the replication thereto, an issue or issues shall he tried by the court, or by a jury -under the direc­tion of the court, as the court may direct or the parties agree. ■

See. 13. Every defendant served with process, ton days beforo the return day thereof, shall answer the bill or petition on or before the day on which the cause shall bo set for trial on the docket, and the issue or issues in the cause shall he made up underthe direction of the court, and oral testimony may be received as in cases at law. ,

Sec. 14. "Notice given to parties by publication under the direction of the court, shall be equivalent to personal service of such notice.

Sec. 15. In proceedings under this act, all persons interested in the subject matter of this suit, or in the premises intended to be sold, may on application to the court wherein the suit is pending become parties at any time before final jndgment.

Sec. 16. Upon questions arising between different -creditors, no preference shall he given to him whose contract was first made.

Sec. 17. Upon the trial o f causes under the provis­ions of this act, the court shall ascertain the amount . due each creditor, and shall direct the application of the proceeds of sales to he made to each in proportion to their several amounts.

'Sec. 18. W hen the owner of the land shall have failed perform his part of the contract, and by reason thereof ■the other party*'shall without his own default, have been prevented from performing Ids part, he shall be entitled to a reasonable compensation for as much thereof as he has performed in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly.

Sec. 19. The court may order a sale of enough of the premises to bo sold to satisfy all the claims proved in the cause, if the premises are susceptable of division iwithout damage to the whole.

See. 20. Parties entitled to liens under the provisions of this act, whose claims are not due or payable at the

'time of the commencement of the suit by any other party, shall he permitt1 U to become parties to the suit, ¡and their claims shall -¿jo allowed, subject to a reduc­tion of interest from the date of judgment to the time '.such claim is due or payable.. Sec. 21. In cases under the provisions of this act ''"where there are several claimants, the issue of law, and ■fact, or .either, may be tried separately, and in no case

When'answers to ho made.

Notice by publi­cation equal to per­sonal servie«.

Interested persons may become parties to suit.

No preference made to ârst con­tracter. , .I .1 Vi 1 ! i

Court to appor­tion the amount to each creditor.

When owner's default causes con~ tractor to default, court to comeusato for work done.

Court may order sale of part of Ithe premises in certian cases.

Parties owning liens not dae may become parties to suits. .

Sevearl claimants separate trial of is­sue ; court may or- delny, of sale in certain cases.

shall the want of preparation for trial to one claim,.■ delay the trial in respect to others; but trials shall be

had upon issues, between such parties as are prepared, without reference to issues-between other parties, and when one creditor shall have obtained,a verdict or judgment for the amount due, the court may orders sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment; Provided, That the court may, for good causes shown, delay making any order o f sale, until the right of all parties

■ in interest, shall be ascertained and settled by tho Court. ■

Persons ownins Sec. 22. I f the person who procures work to be done less than »fee sim-o r materials furnished, has an estate less than a feeto bo considered A' ?, . . , • , 7 , , ,owner to the extent simple, m the land or lot on which the work is done or e is interest, materials tumished, or if such land or lot, at the time

of making the contract, is mortgaged or under any other incumbrance, the person who procures the work or materials shall nevertheless be considered the owner as within tho meaning o f this act, to the extent of hie right and interest in the premises, and the lien herein provided for shall bind his whole estate and interest therein in like manner as a mortgage would have clone; and the creditor may cause the right of redemption, or whatever other right or estate such owner had in tho

■ land at the time of making the contract, to be sold, and the proceeds applied according to the provisions- of this act. ■ ■

Executors may Sec. 23. Suits may be instituted under the provi- maintaiu suits, visions of this act in iiivor of administrators or

executors, and may be maintained against tho repre- . BOntatives in interest of those against “whom tl to cause

of action accrued; and in suits instituted under the provisions of this act, the representatives of any party who may die pending the su it ‘shall be made parties, as though it were n suit in chancery.

Parties (¡¡»¡mins Sec. 24, Upon proceedings under the provisions of contest tLjfothUSthi-* net, parties claiming may contest. each others rights. ‘ rights, as well with respect to amount due, as with respect

to their rights—to the benefits of the lien hereby cre­ated; and upon all questions made by parties, the Court shall require issues of law or of fact to be found, so as to bring about a speedy decision thereof.

Incumbrances ®ee- “'5. No incumbrance upon land created before flfTor ukcontract af’tor making o f a contract, under tho provisions not good against a o f this act, shall operate upon the building erected or

material furnished, until the lieu iu favor of the per­son doing the work or furnishing the material shall

■ have been satisfied, and upon questions ariting betweenprevious incumbrances and creditors under the pro­

f visions of this act, the previous incumbrance shall be

£ 6 2 . PRACTICE O'F LAW.

PRACTICE OP liATT. 263preferred to the extent of the value of the land at the . time of making the contract; and the Court shall ascertain, by jury, or otherwise, ns the case may require, what proportion of the proceeds of any sale shall bo paid to the several parties in interest.

See. 26. Parties in interest, within the meaning of. Parti m inures w this act, shall include all persons who may have a n y 1 legal or equitable claim to lards or lots, upon which a lien may be attempted to be enforced, under the pro­visions of this net. - -

Sec. 27. Creditors,-who file bills or petitions tinder CreaHo« may the provisions of this act, may contest th e ' validity of eumbranee both on an incumbrance, as well in regard to amount as to their ■“countandl“*1“*-

.justice; and any incumbrance, charged and shown as fraudulent, in respect to such creditor, or in respect to ’ creditors generally, may be set aside by the court, and the premises made, subject to the claim of the creditor, freed and discharged from such fraudulent incum­brance.

Sec. 28. In proceedings under this act, the courts are under thi3 non vested with all the powers o f courts of chancery, and ™i!thSpover»st<or. Bhall bo governed by the rules of proceedings and cnaoccrycourts, decision therein, so far as that power may be necessary to carry into full and complete effect the provisions' hereof, and so far as those rales of proceedings and decisions arc applicable. .

Sec. 29, 17o creditor shall he allowed to enforce the No creditor «« lien, created under the provisions of this act, as against riiccVbere &f-or to the prejudice o f any other creditor or any ineum-teriiKD10I1,lls- braucc, unless suit be instituted to enforce such lieu, within six montas after the last payment for labor or materials shall have become duo and payable.

Sec. 80. Nothing contained in this act, shall bo con- oreaitor to p™- ■strued to prevent any creditor from maintaining an no ocuuty 'roi-'LEs action at law upon his contract, in like 'manner as i f debt, be had no security for lke debt. » . Sa

See. 8 1 . If, upon making any sale of any premises, cases where sale isunder this act, the proceeds-of suck sale shall not becutnafunaV°iKsufficient to pay the claims of all parties, according to wlsero !t exceed3-their rights, the judgment shall be credited by theamount of such sale, and execution may issue in favor (of any creditor whose claim is not satisfied, forthe balance due, as upon a judgment iu actions ofdebt or assumpsit; and in cases o f excess o f sales overthe amount o f judgment, such excess shall be paid tothe owner of the land, or to the person who may beentitled to the [same],' under the direction of thecourt, . ,■- See. 32. Tlio cost of proceedings under the provis- coats, regulated ions of this act, as between creditors claiming liens by tbe l!3U,f-ofEUlt-

■and the person against whom the lien is intended to be

264 PRACTICE OF LAW.

enforced, shall abide the event of the suit, and the' costs, as between creditors in contests relative to each

. others claims, shall be subject to the order of the Court; and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances.

em“ioyeatr n°otr Sec. 33. That no sub-contractor or employee shall iia% X ee benefit of have the benefit of the provisions o f this act, except .givraCt noth»1 toSneh contractor or employee shall give the proprietor -oomptcuJo°n°^written notice o f intention to take the benefit of the .structure. provisions of this act, before the completion o f the

structure for which such work or material has been furnished.

Sec. 34. This act shall take effect and be in force from and after its passage.

Approved, November 4th, 1861.

A N ACT 'Concerning Judgments and Executions.

Be it enacted by the Council and House of Representatives of Colorado Territory: _

what"" property S ectiox 1. A ll and singular the goods and chattels, lands ■Kubjecttq oxecu-ancl tenements and real estate of every person against, .'how tonga lien on wliorii any judgment shall >be obtained m any court oi sofjtha ieention record either at law or m equity for any debt, damages,

.tuniasT arty yre-cos s or any other sum of money shall be liable to be tion• ' mDj”ren160^ 011 executi°n to be issued upon such judgment, estate”defined. ‘ and the said judgment shall be' a lieu on such lands,

tenements and real estate, from the last day of the - term, of the-court in which the same may he rendered

for the period of seven years; Provided, That execution be issued at any time, within one year on such judg­ment and «from m id after the said seven years, the same shall cease to be a lien on any real estate, as against

. bona fide purchasers or subsequent incumbrances by­mortgage, judgment or otherwise; Provided, That in ease the party in whose favor any such judgment shall

. have been entered, shall be restrained by injunction out of chancery or order of any Judge or court, either from issuing execution or selling thereon, the time which he shall be so restrained, shall not be deemed or considered as any part of the said seven years. The term, real estate in this section, shall be construed to include all interest of the defendant, or any person to his use, held or claimed by virtue of any deed, bond, covenant, or otherwise, for a conveyance, or as mort­gagee or mortgagor of lands in fee for life, or for years. • . • 1 . - .