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SEC. 384. This writ shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It shall be issued upon affidavit on the application of the party beneficially interested.

SEC. 385. The writ shall be either alternative or peremptory. The alternative writ shall state generally the allegation against the party to whom it is directed, and command such party immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court at a specified time and place why he has not done so. The peremptory writ shall be similar in form, except the words requiring the party to show cause why he has not done as commanded shall be omitted and a return day inserted.

SEC. 386. When the application to the court is made without notice to the adverse party, and the writ be allowed, the alternative shall be first issued, but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first instance. The notice of application when given shall be at least ten days. The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not.

SEC. 387. On the return day of the alternative, or the day on which the application of the writ is noticed, or such further day as the court may allow, the party on whom the writ or notice shall have been served, may show cause, by answer, under oath, made in the same manner as an answer to a complaint in a civil action.

SEC. 388. If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation on which the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such can be had, and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for the trial, and the county. shall be designated in which the same shall be had. The order may also direct the jury to assess damages which the applicant may have sustained, in case they find for him.

SEC. 389. On the trial, the applicant shall not be precluded by the answer of any valid objection to its sufficiency, and may

countervail it by proof, either in direct denial or by way of avoidance.

SEC. 390. If either party be dissatisfied with the verdict of the jury, he may move for a new trial by filing reasons therefor. The motion for a new trial may, upon reasonable notice, be brought on before the judge of the court in which the cause was tried, either in term or vacation. If a new trial be granted, a jury shall within five days thereafter, unless the parties agree to a longer time, be summoned to try the issue. After a second verdict in favor of the same party, a new trial shall not be had.

SEC. 391. If no notice of a motion for a new trial be given, or if given be denied, the clerk within five days after the rendition of the verdict, or denial of the motion, shall transmit to the court in which the application for the writ is pending, a certified copy of the verdict, attached to the order of trial, after which either party may bring on the argument of the application upon reasonable notice to the adverse party.

SEC. 392. If no answer be made, the case shall be heard on the papers of the applicant. If answer be made which does not raise a question of fact necessary to be tried by a jury, but only such matters as may be explained or avoided by a reply, the court may in its discretion grant time for replying. If the answer or answer and reply raise only questions of law, or put in issue immaterial statements not affecting the substantial rights of the parties, the court shall proceed to hear or fix a day for hearing the arguments of the case.

SEC. 393. If a judgment be given for the applicant, he shall recover the damages which he shall have sustained as found by the jury, or as may be determined by the court or referees upon a reference, to be ordered, together with costs; and for such damages and costs an execution may issue, and a peremptory mandate shall also be awarded without delay.

SEC. 394. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court.

SEC. 395. When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appears to the court that any member of such tribunal, corporation, or board, or such person upon whom the writ has been personally

served has, without just excuse, refused or neglected to obey the same, the court may, on motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned for a period not exceeding three months, and may make any order necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a judge or officer who draws a salary from the Territory or county, a certified copy shall be forwarded to the auditor or county treasurer, as the case may be, and the amount thereof may be retained from the salary of such judge or officer. Such judge or officer, for this wilful disobedience, shall also be deemed guilty of a misdemeanor in office.

TITLE XIV.

CONTEMPTS AND THEIR PUNISHMENTS.

SEC. 396. The following acts or omissions shall be deemed contempts: First, Disorderly, contemptuous, or insolent behavior toward the judge while holding court or engaged in his judicial duties at chambers, or towards referees or arbitrators whilst sitting on a reference or arbitration tending to interrupt the due course of a trial, reference, or arbitration, or other judicial proceeding. Second, A breach of the peace, boisterous conduct, or violent disturbance in presence of the court or its immediate vicinity tending to interrupt the due course of a trial or other judicial proceeding. Third, Disobedience or resistance to any lawful writ, order, rule, or process issued by the court or judge at chambers. Fourth, Rescuing any person or property in the custody of an officer by virtue of an order or process of such court or judge at chambers.

SEC. 397. When a contempt is committed in the immediate view of the court or judge at chambers, it may be punished summarily. When the contempt is not committed in the immediate view or presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbi

trators.

SEC. 398. An attachment may be issued by an order of the court for the arrest of the person accused, and that he be held to

bail in the sum specified therein for his appearance at a time to be specified.

SEC. 399. When the person arrested has been brought up or appeared, the court or judge shall proceed to investigate the charge, and shall hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time.

SEC. 400. When the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he shall have performed it, and in that case the act shall be specified in the warrant of commitment; in all other cases of contempt the court or judge may impose a fine not exceeding five hundred dollars and imprisonment not exceeding five days.

TITLE XV.

OF COSTS.

SEC. 401. Costs shall be allowed to the plaintiff, upon judgment in his favor in the following cases: First, In an action for the recovery of real property. Second, In an action to recover possession of personal property when the value amounts to fifty dollars or over, such value to be determined by the jury, court, or referee by whom the action is tried. Third, In an action to recover money or damages where the plaintiff recovers fifty dollars or over. Fourth, In a special proceeding in the nature of an action.

SEC. 402. When several actions are brought on one bond, undertaking, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action, against several parties who might have been joined as defendants in the same action, no costs shall be allowed the plaintiff in more than one of such actions, which may be at his election, if the party proceeded against in the other actions were at the commencement of the previous action openly within the Territory, but the disbursement of the plaintiff shall be allowed to him in each action.

SEC. 403. Costs shall be allowed to the defendant upon a judgment in his favor in actions for the recovery of real or personal

property, in actions for the recovery of money, and in a special proceeding in the nature of an action.

SEC. 404. In other actions than those hereinbefore mentioned, costs may be allowed or not, and if allowed may be apportioned between the parties on the same or adverse sides in the discretion of the court.

SEC. 405. If any defendant defend in his own interest alone, if he recover judgment he shall recover costs.

SEC. 406. In the following cases the costs of an appeal or writ of error shall be in the discretion of the court: First, When a new trial is ordered. Second, When the judgment is modified.

SEC. 407. The fees of referees shall be ten dollars to each for every day spent in the business of reference, and the parties shall not agree upon any other rate of compensation, nor shall any other rate of compensation be allowed by the courts.

SEC. 408. When an application is made to a court or referee to postpone a trial, the payment of costs occasioned by the postponement may be imposed in the discretion of the court or referee as a condition of granting the same.

SEC. 409. When in action for the recovery of money only the defendant alleges in his answer that before the commencement of the action he tendered to the plaintiff the full amount to which he was entitled, and deposited in court for the plaintiff the amount so tendered, and the allegation found to be true, the defendant shall

recover costs.

SEC 410. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or person expressly authorized by statute, costs may be recovered as in an action by or against a person prosecuting or defending in his own right; but costs shall by the judgment be made chargeable only upon the esstate, fund, or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally for mis management or bad faith in the prosecution or defence.

SEC. 411. When the decision of a court of inferior jurisdiction in a special proceeding is brought before a court of higher jurisdiction for a review in any other way than by appeal, the same costs shall be allowed as in cases on appeal, and may be collected by execution or in such manner as the court may direct, according to the nature of the case.

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