$18: Jan. 27. 1857.

Issue

ously, when.

C. L. 1865, chap. 34, execution shall have been first issued against the principal in any such note or obligation, and levied upon all the real estate or other property of said principal, which may be within the jurisdiction of the court, in which the judgment may have simultane been rendered: Provided, That whenever the plaintiff in any such execution shall file in the court, in which the judgment is pending, an affidavit in relation to such security or securities similar to the one required by law, to be filed previous to issuing an attachment, then in such case execution shall issee simultaneously against the principal and the security against whom the said affidavit be filed.

Real property to realize two-thirds value.

§ 3119. No real property shall be sold on any execution issued out of any court in any case at law for less than twothirds of the appraised cash value thereof, exclusive of liens L. 1881, chap. 11, § and encumbrances. 1: April 3.

Value, ascertainment of.

§ 3120. The sheriff between the days of levying the exe cution and the sale of the property, shall proceed to ascertain C. L. 1865, chap. 34. the cash value of such property as follows:

§ 22; Feb. 4, 1857. Tr. Appraisers, how to be chosen.

§ 3121. For that purpose two disinterested householders of the neighborhood where the levy is made shall be selected as appraisers, one of whom shall be selected by each of the parties or their agents, or in the absence of either party or his agent, or upon the refusal of either party, after three days' notice by the sheriff to make the selection, the sheriff shall proceed to select the appraisers, who shall proceed to appraise the property according to its cash value at the time, deducting liens and encumbrances; and in case of their disagreement as to the the value thereof, they shall select a like disinterested appraiser, and with his assistance shall complete the valuation, and the appraisement of any two of them shall be deemed the cash value.

§ 3122. In case any appraiser shall fail to act or to complete such valuation, another shall be chosen in his stead as above provided.

§ 3123. The sheriff shall furnish the appraisers with a schedule of the property levied on with the encumbrances made known to him, and they shall proceed to fix, and set down opposite to each tract, lot or parcel of real estate, the cash value, deducting liens and encumbrances, which schedule shall be returned to the sheriff.

§ 3124. It shall not be the duty of the sheriff or appraisers to ascertain the amount of liens or encumbrances, but either party may furnish the sheriff with a list thereof, with the amount and nature of each.

§ 3125. The appraisers shall take and subscribe an oath annexed to such appraisements, to the effect that the property mentioned in the schedule is, to the best of their judg ment, worth the sums specified therein, that the same is the fair cash value thereof at the time, exclusive of liens and encumbrances; which oath the sheriff is authorized to administer and attest when taken and subscribed by the apprais

ers.

§ 3126. When any property shall be sold subject to liens and encumbrances, the purchaser may pay the liens and encumbrances, and hold the property discharged from all claims

of the defendant in execution; but the defendant may redeem the property within one year after the sale thereof, paying to the purchaser, his heirs or assigns, the purchase money with interest; when redeemed, the purchaser shall have the growing crops, and shall not be responsible for rents and profits, but he shall account for wastes.

§ 3127. When any property levied on remains unsold, it shall be the duty of the sheriff, when he returns the execu tion, to return the appraisement therewith, stating in his return the failure to sell, and the cause of the failure.

Lien of the levy continues.

Execution again to

§ 3128. The lien of the levy upon the property shall continue until the debt is paid, and the clerk, unless otherwise directed by the plaintiff, shall forthwith issue another execu- issue tion, reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judg ment out of the property unsold, if the same is sufficient, if not, then out of any other property of the debtor, subject to execution.

§ 3129. Whenever any property levied upon remains un sold for want of buyers, the plaintiff may cause the same to be re-offered at any time before the return day of the execution, at his cost, as often as he may direct, but in case of the sale of the property, the costs of such offer and sale shall be taxed against the defendant; each party may have one revaluation of the property, at his costs, after the first offer to sell.

Id. § 30.

re-offered: re-valua

Property may be

tion.

Id. § 31.

Property conveyed, fraudulently. Id. § 32.

Execution against

§ 3130. Property conveyed by a debtor with intent to hinder, delay or defraud creditors, shall be sold without appraisement. $3131. No execution shall be issued upon any judgment body, when. against the body of any execution debtor, except in cases of fraud and personal injuries: Provided, That the defendant in execution, shall present, under oath, a schedule, containing all of his property, money, rights and credits.

Id. § 33.

Writ of attachment levied on

§ 3132. Hereafter whenever it shall be necessary to levy any writ of attachment, replevin or execution under the laws stock, how. of this territory upon any live stock or herd of cattle that are ranging at large with other live stock or cattle over any range country, and when it would be impossible or impracticable to round up, gather or take possession of the same under such process without, at the same time, rounding up and cutting out the live stock belonging to other owners, then and in such case, the sheriff or other officer holding such writ, shall only take possession of such stock as he may be able to get without interfering with the live stock of other owners, and as to the balance, it shall be sufficient, in order to subject them to the lien of said writ, that the officer shall file with the clerk of the probate court of the county in which the brand of such live stock is recorded, a certified copy of said writ, and immediately upon the filing thereof the clerk of the court shall note the same in the reception book of his office, and shall also note the same in red ink on the margin of the page of the book where such brand is recorded, and shall properly index the process in the general and other proper indices of his office: Provided, That if said live stock

Feb. 14.

C. 54, L. 89, § 1; range is in more than one county, then the officer may file a like certified copy of the writ and brand in any such county, and the same shall have like binding effect as a lien upon such live stock.

Writ a lien, when.

Id. § 2.

Disposing of stock a penalty: when.

Id. § 3.

Duty of sheriff.

Id. § 4.

§ 3133. Such process, when so filed, noted and indexed, shall have all the binding force as a lien upon said live stock, as if the same had been levied against said live stock upon the range and the officer had taken possession of the same. Upon the next roundup after such levy, and at all times after such levy until such writ is satisfied, all persons coming into possession of any such live stock shall treat said officer as the owner thereof.

§ 3134. After the filing, noting and indexing of such process in the office of the probate clerk, as aforesaid, if any person or persons, including the defendant or defendants in such process, shall sell, drive away, dispose of, kill or butcher any of said live stock so levied upon, or shall attempt to sell, drive away, dispose of, or kill, or butcher, any of said live stock, or shall gather or round up any of said stock with intent in any way to defeat the levy of said writ, he or they, shall be deemed guilty of grand larceny, and on conviction thereof, shall be subject to a fine of not less than two hundred dollars, nor more than one thousand dollars, or to imprisonment for not less than one year, or more than two years, in the discretion of the jury trying the case.

§ 3135. Any live stock taken under any process, as provided in the foregoing section, shall be disposed of by the sheriff, or officer, as now provided by law: Provided, That in the case of a levy of a writ of execution, under this act, the officer shall forthwith proceed to sell any live stock so levied upon, as now provided by law, in lots, from time to time as he may come into possession of the same, until the writ is satisfied. And upon such writ being satisfied he shall at once enter satisfaction thereof, in all cases, upon the margin of the record aforesaid, where such brand is recorded, and shall indorse such satisfaction upon all process filed as aforesaid.

APPEALS AND WRITS OF ERROR.

Appeals and writs

of error, when al

lowed and how.

Amended chap. 11,

§ 3136. Appeals in equity cases and writs of error in common law cases may be taken at any time within one year from the date of the rendition of final decrees or judgments, and no affidavit shall be required as a condition precedent to the granting of such appeals or writs of error. Appeals shall be allowed upon application to the district court in which the decree appealed from was rendered, and unless such application and allowance are made in open court and at the same term at which the decree was rendered, the clerk shall issue a citation to the opposite party to appear in the supreme court to answer such appeal. There shall be no stay of execution in any equity case, unless the appellant, or some person for him, shall, within ninety days after the decree appealed from becomes final, give bond in a sum to be fixed by the district court, or the judge thereof, with sufficient sureties, to be approved by the court or judge, to the adverse party, conditioned that the appellant shall prosecute his appeal with due diligence in the supreme court, and that, if the decree appealed from be affirmed, or the appeal dismissed, he will perform the decree of the district court, and pay all damages and costs adjudged against him in the supreme court on such appeal, which bond shall be filed with the clerk of the district court, and shall become a part of the record; or unless the appellant is executor or administrator, county or other municipal incorporation, and the decree is against him as such, in which case the taking of appeal shall operate to stay the execution of the decree. Upon writs of error, supersedeas or stay of execution may be obtained, as provided in section three thousand one hundred and forty-four. Appeals may also be taken in the manner above provided in equity cases from such interlocutory judgment or decree in actions for partition as determines the rights and interests of the respective Feb. 28. parties, and directs partition to be made.

C. 66, L. 91, § 5;

Granting of new trial, reviewable by

§ 3137. Every order of any district court setting aside a verdict and granting a new trial in any civil action, is hereby supreme court. made reviewable in the supreme court by appeal or writ of error to the same extent and in the same manner as final orders and decisions of a district court are so reversible: Provided, That as a condition to such right of review, the party aggrieved by any such order must, at the time of taking such appeal or suing out such writ of error, or within ten days after such time, file with the clerk a written stipulation in the cause, signed by himself or his agent or his attorney of record: Providing, That, in case of the affirmance of such order by the supreme court, judgment absolute shall be given and entered against him in the cause by the district Feb. 12. court upon the issues made by the pleadings therein.

§ 3138. In case any such order shall be reversed by the supreme court, upon such review, that court shall render judgment on the verdict in favor of the party for whom such verdict was rendered, in the amount of such verdict and of proper interest thereon from the date thereof until the date of such final judgment, together with the costs.

C. 44. L. 89, § 1;

Reversal, judg

ment.

Id. $2.

C. L. 1865, chap. 16: § 5: Sept. 22. 1846.

Exceptions.

Appeals, when returnable.

of.

affirmed, when.

§ 3139. No exception shall be taken in an appeal to any proceeding in the district court, except such as shall have been expressly decided in that court.

§ 3140. All appeals taken thirty days before the first day of the next term of the supreme court shall be tried at that term, and appeals, taken in less than thirty days before the first day of such term, shall be returnable to the next term Transcript, filing thereafter; the appellant shall file in the office of the clerk of the supreme court, at least ten days before the first day of such court to which the appeal is returnable, a perfect transcript of the record and proceedings in the case. If he fail Judgment to be to do so, the appellee may produce in court such transcript, and if it appear thereby that an appeal has been allowed in the cause, the court shall affirm the judgment, unless good Appeal to be dis- cause can be shown to the contrary. On appeals and writs of error, the appellant and plaintiff in error shall assign errors on or before the first day of the term to which the cause is returnable; in default of such assignment of errors, the appeal or writ of error may be dismissed, and the judg ment affirmed, unless good cause for such failure be shown: joinders in error shall be filed within four days after the time required for the filing of the assignment of error.

missed. when.

Id. § 6.

Record facts alone to be considered.

Id. § 7.

Damages, how to be awarded.

Id. § 8.

Determination, how to be executed.

Id. § 9.

Appeals, how be taken.

to

$3141. The supreme court in appeals or writs of error shall examine the record, and on the facts thereon contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law.

Badeau vs. Baca, vol. 2, page 194. N. M. Rep.

3142. And upon the affirmation of any judgment or decision, the supreme court may award to the appellee, or defendant in error, such damages, not exceeding ten per cent. on the amount of the judgment complained of, as may be just.

See ante-section eight hundred and ninety-nine.

$3143. The supreme court, on the determination of the cause in appeal or error, may award execution to carry the same into effect, or may remit the record with their decision to the district court from which the cause came, and such determination shall be carried into execution by such district court.

See ante-section eight hundred and eighty-seven.

§ 3144. The clerk of the supreme court shall issue a writ of error to bring into the supreme court any cause finally adjudged or determined in any of the district courts upon a Amended L. 91. C. Præcipe therefor, filed in his office by any of the parties to

Writs of error. how issued.

66. § 5.

Time allowed to execute bond.

such cause, his attorney or solicitor, at any time within one year from the date of such judgment or determination, and giving security for costs therein to the satisfaction of the clerk. But there shall be no supersedeas or stay of execution upon such judgment or determination, unless the party applying for such writ of error, or some responsible person for him, shall, within three months from the date of such judgment or determination, execute a bond to the adverse party in double the amount of the judgment complained of, with sufficient sureties, to be approved by such clerk, conditioned for the payment of such judgment and all costs that