SEC. 12. This act to be in force, and take effect, from and after its approval by the governor.

APPROVED, December 10th, A.D. 1864.

CHAPTER XX.

AN ACT

RELATING TO PROBATE JUDGES.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. The several probate judges of this territory shall be ex officio clerks of their own courts, and they shall have power to appoint a clerk, which appointment shall be in writing and filed in the office of the county recorder; he shall hold his appointment during the pleasure of the probate judge so appointing him, but his revocation shall be in writing, filed in the office with his appointment.

SEC. 2. The probate judges or their clerks shall receive the following fees, except otherwise specially provided for by statute: For issuing letters testamentary or of administration, one dollar; when the same are contested, three dollars; for certificate appointing appraisers or guardians, fifty cents; for writing and posting notices, for each copy, fifty cents; for giving notice by publication, in addition to the costs of publication, fifty cents; for all other

services, the same fees as are allowed the clerk of the district court and justice of the peace, for similar services.

SEC. 3. All acts and parts of acts, contravening the provisions of this act, are hereby repealed.

SEC. 4. This act to take effect from and after its approval by the governor.

APPROVED, December 21st, A.D. 1864.

CHAPTER XXI.

AN ACT

TO ENABLE THE COURTS TO ENFORCE THE SPECIFIC PERFORMANCE OF CONTRACTS.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. In an action upon contract, express or implied, for the direct payment of money or currency, the judgment, whether the same be by default or after verdict, or upon the decision of the court or the report of a referee, shall follow the contract and be made payable in the kind of money or currency stipulated for therein, or understood by the terms thereof; provided, that whenever a written contract to pay in "gold coin," or its equivalent in gold dust or bars, be not performed according to the terms of said contract whether

by promissory note or otherwise, it shall thereafter, at the option of the party entitled to the benefit thereof, be deemed and held to be a contract to pay gold coin only, within the meaning of this act, and may be enforced accordingly.

SEC. 2. In an action for the recovery of unliquidated damages, the court, jury, or referee, who shall assess the same, shall estimate the amount thereof either in gold or silver coin of the United States, or in United States legal tender paper currency, at the option of the party prosecuting for the recovery of such damages, and the judgment thereof shall be made payable in the kind of money or currency in which such damages shall have been estimated.

SEC. 3. An execution to enforce a judgment for a specified kind of money, shall require the sheriff to satisfy the same in the kind of money or currency specified in such judgment, and in case of levy and sale of the property of the judgment debtor, he shall refuse payment from any purchaser at such sale, in any other kind of money than that specified in the execution. The sheriff shall pay over according to law the kind of money recovered on such execution, and in case of neglect or refusal so to do, he shall be liable on his official bond to the judgment creditor in three times the amount of the money collected.

SEC. 4. The certificate of sale of real property on an execution to enforce a judgment for a specified kind of money, shall state the kind of money recovered on such sale, and the notice of sale shall specify the kind of money in which bids may be made at such sale, which shall be the same as that specified in the judgment, and the sheriff shall state in his returns the kind of money received.

SEC. 5. The purchaser at a sale of real property on execution for a specified kind of money, shall be entitled to receive from the redemptioner and the redemptioners from each other, the kind of money specified in the certificate of sale before a redemption of such property can be had.

SEC. 6. This act shall take effect and be in force from and after its approval by the Governor.

APPROVED, December 3d, A.D. 1864.

CHAPTER XXII.

AN ACT

PRESCRIBING THE MODE OF MAINTAINING AND DEFENDING POSSESSORY ACTIONS ON THE PUBLIC LANDS IN THIS TERRITORY.

Be it enacted by the Legislative Assembly of the Territory of Idaho, as follows:

SECTION 1. Any person being a citizen of the United States, or having in accordance with law declared his intention to become a citizen, now occupying and settled upon, or who may hereafter occupy or settle upon, any of the public lands of the United States in this territory, for the purpose of cultivating or grazing the same, may commence and maintain any action for interference with, or injury to, his possession of such land against any person or persons interfering with or injury to the same: provided, that if such land contain mines of any of the precious metals, the possession or claim of the person or persons occupying the same for the purposes aforesaid shall not prevent the working of such mines by persons desiring to work the same, as fully as if no such claim for agricultural or grazing purposes had been made thereon: provided, further, that this act shall not be so construed as to allow persons who have, subsequent to the location of land for agricultural or grazing purposes, to go upon such lands for the purpose of mining without either first paying the owner thereof the value of any growing crops they

may destroy, or giving bonds for the same; this provision not to extend to any crops planted upon lands subsequent to their location for mining purposes: and, provided further, that this act shall not be construed to authorize the maintenance of any claim upon lands which, at the commencement of any such action, may have been selected by the United States, and reserved for any purpose.

SEC. 2. Every claim, to enable the holder to maintain any action as aforesaid, shall contain not more than one hundred and sixty acres of land; shall be in a compact form, and in no place less than eighty rods in width, and so distinctly marked that the boundaries thereof may be easily traced.

SEC. 3. Every such claim shall be accurately described in a written notice, which shall be recorded in the office of the recorder of the county wherein the claim shall be situated, in a book to be kept by him for that purpose, together with an affidavit of the claimant setting forth: First. That such claim does not embrace more than one hundred and sixty acres of land. Second. That he or she holds no other claim under the provisions of this act. Third. That to the best of his or her information and belief, no part of said land is claimed under any existing adverse title.

SEC. 4. Within ninety days after the date of such record, said claimant shall improve the land so recorded, unless the same shall have been previously done by him, or some one through whom he claims, by putting such improvements thereon as shall partake of the realty to the value of two hundred dollars, and shall continue to occupy and to cultivate or graze the same, or some portion thereof, either in person or by his agent or employé, and no persons shall be entitled to maintain any such action unless he shall have complied with all the provisions of this act.

SEC. 5. In any action for the possession of, or for any injury done to, a lot or parcel of land, situated in any city, town, or village on the public lands in this territory, the plaintiff shall be required to prove either an actual inclosure of the whole lot claimed by him, or the erection of a dwellinghouse, or other substantial building, on some part thereof, by himself or some person through whom he claims, and proof of such building, with or without inclosure, shall be sufficient to hold such lot or parcel to the bounds thereof, as indicated by the plat of such city, town, or village, if there be one, and if there be no such plat, then to hold the same, with its full width and extent from and including such building to the nearest adjacent street, where the intervening space shall not have been previously claimed by adverse possession.

SEC. 6. This act to take effect and be in force from and after its approval by the governor.

PASSED, December 10th, A.D. 1864.