vided, however, That should the person, whose election is contested, fail to nominate a justice as aforesaid, it shall be the duty of the justice, nominated by the person contesting the election as aforesaid, to select a justice of the peace, who shall proceed as above stated; and if any witness or witnesses, summoned as aforesaid, shall fail or refuse to appear at the time specified in said notice, it shall be lawful for said justices, or either of them, to issue an attachment against such witness or witnesses, and the testimony of him, her, or them, so failing or refusing to appear, may be taken at any time before the next session of the Legislature thereafter, by giving five days notice to the party whose election is so contested, and the party contesting the same. And if any justice of the peace, selected as aforesaid to attend at the taking of the depositions, shall, without reasonable excuse, fail or refuse to attend at the time and place appointed, after having undertaken to attend, he shall forfeit and pay a fine of fifty dollars, to be recovered by action of debt, in any court having cognizance thereof, to be paid into the county treasury. And the said justices, when met, shall hear, and certify under seal, all testimony, relative to the said contested election, to the President of the Council, or Speaker of the House of Representatives, as the case may require; and no testimony shall be heard by the said. justices, on the part of the person contesting the election, which does not relate to the points specified in the notice. A copy of said notice shall be attested, either before or at the trial, by the person who served or delivered the same, or its service proved, and a certificate of such proof endorsed thereon by said justices, and the notice transmitted, with the other documents, to the President of the Council, or Speaker of the House of Representatives, to whichever body the person, whose election is contested, belongs.

ty commission

er, or any coun

SEC. 21. When any candidate shall desire to con- In the case of test the validity of any election, or the right of any coroner, counperson, declared to be duly elected, to hold and exercise the office of coroner, or county commissioner, ty officer. or any county office, such candidate, so contesting the election as aforesaid, shall proceed in all respects in the manner prescribed in the foregoing section, except that said justices before named, after hearing and examining all testimony produced, as provided in the foregoing section, and having summed up the

If two or more counties uni

compared in

senior county.

same, shall decide which of the said candidates shall in their opinion have been duly elected, and said decision shall be final, and certify the same to the clerk of the board of county commissioners of the proper county, who shall thereupon make out and deliver to the successful party a certificate of his election; and all necessary costs, accruing in any contested election, shall be paid by the unsuccessful party, to be recovered by action of debt as in other cases.

SEC. 22. That when two or more counties are united in one Council or Representative district, the clerk ted, votes to be of the board of county commissioners, of the county last established, shall, within twelve days after the day of election, attend at the office of the clerk of the board of commissioners of the senior county, and there, in conjunction with the clerk or clerks of the senior county or counties, shall compare the votes given in the several counties composing such council or representative district; and said clerks shall immediately make out a certificate of the election of the person or persons, having the highest number of votes in such counties, for member of the Council or House of Representatives of the Legislative Assembly, which certificate shall be delivered to the person entitled to it, on his application, by himself or agent, to the clerk of the board of county commissioners of the senior county at his office.

Neglect, delay, or refusal to

Fine.

SEC. 23. If any judge of the election, or clerk, or any other officer or person in any manner concerned perform duties. in conducting the election, shall wilfully neglect, improperly delay, or refuse to perform, any of the duties required by this act, after having undertaken to perform such duties, he shall forfeit and pay to the county the sum of forty dollars. And if such judge of election, clerk, or other officer or person in anywise concerned in conducting the election, shall Admitting to knowingly admit any person to vote, not qualified according to law, or shall knowingly receive and count more than one vote from one person, at the same election, for one office, or shall be guilty of Fraud, corrup-fraud, corruption, or partiality, in any matter or thing tion, or partial- relating to said election, each and every person so offending shall forfeit and pay to the county the sum of one hundred dollars, to be recovered in any court of record in this Territory, in the name of the board of commissioners of the proper county, for the use of their county, in an action of debt, with costs of suit, or at the suit of any person who may sue for

vote persons not qualified.

ity.

the same, the amount recovered to be paid into the county treasury, and every such person, so offending Fine and disas aforesaid, shall moreover, on conviction, be rend-qualification. ered incapable of holding any office within this Ter

ritory for the term of ten years thereafter. If any Refusing votes judges of election shall wilfully refuse to receive the of electors. vote of any elector, who has a right according to the laws of this Territory to vote at the polls where such judges preside, and who, being challenged, shall offer to take the oath prescribed in such cases by this act, such judges of election, so refusing, shall be liable to the penalty of fifty dollars, to be recovered by action Fine. of debt, in the name of the Territory, or of any person who may sue for the same, the amount recovered to be paid into the county treasury: Provided, That Proviso. nothing in this act shall be so construed as to prevent the judges from refusing to receive the vote of any person, when it shall be proved, to the satisfaction of a majority of them, that in taking the said oath he shall have sworn falsely. And if any judge

not sworn.

of election shall order to be received the vote of any Receiving person who, being challenged, shall not take the oath votes of persons or affirmation prescribed by law, such judge of elec-challenged but tion, so offending, shall forfeit and pay the sum of fifty dollars, to be recovered by action of debt, in the Fine. name of the Territory, or of any person suing therefor, the amount recovered to be paid into the county treasury.

ber of Council

SEC. 24. When any vacancy shall happen in the Vacancy in the office of member of the Council or House of Rep-office of memresentatives of the Legislative Assembly, by death, or Representaresignation, or otherwise, it shall be the duty of the tive. clerk of the board of county commissioners of the county, if one county only compose the council or representative district, as soon as he shall be informed thereof, to notify the Governor of such vacancy, and if there be more than one county comprised within the limits of such council or representative district, it shall be the duty of the clerk of the board of county commissioners of the senior county, in such district, so to notify the Governor, and the Governor, immediately upon his receiving such notification, shall proceed in the same manner as is prescribed for other cases in the nineteenth section of this act.

SEC. 25. There shall be allowed out of the county Compensation treasury of each county to the several judges and to judges and

clerks.

When county

or district dielection to fill

vided before

a vacancy.

When and

to be made.

clerks of election, as a compensation for their services, one dollar per day, and the person carrying the polls, from the place of election to the clerk's office, the sum of five cents per mile for going and returning.

SEC. 26. If a vacancy should occur in the Council or House of Representatives of this Territory, from any cause, and if the county or counties, composing the district in which the vacancy may have occurred, should have been divided after the election of the member whose seat is vacant, and before the election to supply the vacancy, such election shall be ordered in every county in which any part of the original county or district may be situated, but no person shall be permitted to vote at any such election who does not, at the time, reside within the limits of the original county or district in which such vacancy may have occurred: Provided, That nothing herein contained shall be so construed to permit any person to vote, so residing within the said limits, who has not the other qualifications of a voter.

SEC. 27. In cases of elections to fill vacancies, as where returns provided for in the preceding section, the returns shall be made by the clerks of the board of county commissioners of the different counties, within twelve days, to the office of the clerk of the board of county commissioners of the original county composing the district, and certificates of election shall be made out and signed by the clerks of the boards of county commissioners of the different counties in which such election may have been held.

Elections by

SEC. 28. In all elections by the Council and House the legislative of Representatives of this Territory, or by either Assembly. house, the members shall vote by ballot. Elections, by joint vote of the two houses, shall be made in the hall of the House of Representatives, at such time as shall have been previously appointed by joint resolution of the two houses, and at all such joint meetings the Speaker of the House of Representatives shall preside. The Speaker of the house shall appoint a member of each house to act as tellers. No person shall be declared duly elected by the Council and House of Representatives, or either house thereof, until he shall have received a majority of all the votes given, blank votes included.

APPROVED, January 25, 1839.

EXECUTIONS.

AN ACT subjecting real and personal estate to execution.

be taken in ex

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That the per- What property sonal and real estate of every individual, company, or interest in body politic or corporate, including his, her, or their lands, &c., may goods, chattels, lands, tenements and hereditaments, ecution. and any title or equitable right to lands whether under a certificate from any land office, or a title bond from any person for a warranty deed, or any right whatever to the possession of lands be and the same are hereby made subject to execution to be taken and sold according to the provisions of this act, excepting that necessary wearing apparel shall Exception. not be considered as any part of the estate of any defendant, or defendants, in execution.

SEC. 2. That when hereafter any writ of execution Duty of officer, may issue against the goods, chattels, lands, tene- in making a ments and hereditaments of any defendant, or de- levy. fendants, it shall be the duty of the sheriff, or other officer, to levy such execution upon such part of the estate of such defendant, or defendants as he, she,

defendant re

until after the sale of personal

or they may direct, but if no such direction shall be Defendant may given, the messuage, lands or tenements on which direct. such defendant or defendants may be chiefly situ- Residence of ated, shall not be levied upon unless a sufficiency of garded. other property, to satisfy the execution or executions, in the hands of the officers cannot be found; and in all cases the real estate of execution defendants shall Real estate exbe exempt from levy and sale until the personal empt from levy estate of such defendant shall be first levied upon and sold, unless such defendants voluntarily authorize property. the sale upon execution of their real estate: Provided, That nothing herein enacted shall be so con- Proviso, as to strued as to make it the duty of any sheriff, or other the direction of officer, to levy upon and sell on execution property doubts concernselected for that purpose by any execution defendant or defendants, if there exist any reasonable doubt whether such defendant or defendants is or are the bona fide owners of such property so selected. SEC. 3. That real and personal estate taken in The best price. execution shall sell for the best price the same will bring at public out-cry, and a deed in fee simple con- Deeds for real veying the real estate shall be made to the purchasers, estate, by executed by the officer selling the same: Provided, whom made. that the owner of any real estate sold under the pro- Redemption. visions of this act may redeem the same at any time within one

defendant, and

ing title.

whom and to

year.