Proviso. Acts repealed. taken under existing laws. shall be rendered incompetent by judgment of law, or in the event of his, her, or their removal, so that their testimony cannot be obtained in the ordinary. way on trial, may be used as evidence: Provided, That nothing herein contained shall be so construed as to prevent any legal exception being made and allowed to the reading of any such deposition, in any trial at law or in equity, in which the same may be introduced as evidence. SEC. 14. The act, entitled "An act concerning depositions," approved, April 12th, 1837, as well as all other acts, and parts of acts, which shall come within the purview of, or be repugnant to, this act, Proviso, touch- be, and the same are hereby, repealed: Provided, ing depositions That nothing in this act contained shall be so construed as to affect any deposition heretofore taken in conformity with the existing laws, or to affect any deposition or depositions which may be hereafter taken upon interrogatories now filed, or which may be filed before this act shall take effect, or which shall or may be approved by any court in this Territory, so long as the existing laws shall remain in force. This act to take effect on the first day of April next. APPROVED, December 19, 1838. cutor in each judicial district DISTRICT PROSECUTORS. AN ACT providing for the appointment of District Prosecutors, and defining their duties. SEC. 1. Be it enacted by the Council and House of District prose- Representatives of the Territory of Iowa, That there shall be a district prosecutor appointed by the Governor, by and with the advice and consent of the Council, in each judicial district in this Territory, who shall hold his office for two years, unless sooner removed, from and after his appointment. Their duties. SEC. 2. It shall be the duty of the district prosecutor, in each judicial district, to prosecute all pleas, plaints, indictments, and presentments, and prosecute all suits against delinquent sheriffs and collectors of the Territory, and county revenue, and all other persons who now are or may hereafter be indebted to the Territory, or any of the counties in their respective districts, where the Territory or county may be a party, except in cases where complaint shall be made in the name of the Territory for the benefit of some third person. SEC. 3. And the said prosecutor, before he enters Oath to be taon the duties of his office, shall take an oath, which ken. oath shall be administered by the district judge of the district for which he may be appointed, faithfully to discharge the duties of his office, which oath it shall be the duty of the district judge to administer, and endorse on the back of the commission; and he shall moreover execute a bond, with security to be Bond to be exapproved by the district judge aforesaid, in the pen- ecuted. alty of five thousand dollars, payable to the United States, conditioned for the faithful discharge of his duty as prescribed by law, and for the prompt payment of all sums of money that may come to his hands, by virtue of said office, to the person or persons authorized to receive the same; which bond it shall be the duty of the said district judge to take and forward to the office of the Secretary of the Ter- And filed in ritory to be filed, and suit may be brought on the Secretary's ofsame for delinquency and defalcation as in case of fi other civil officers. fice. SEC. 4. That whenever a vacancy shall happen by Recess apthe death, resignation, or removal from office, of the pointments. prosecutor in any district in this Territory, it shall be the duty of the Governor, upon being notified of the same, to appoint some fit person to fill such vacancy until the next meeting of the Legislative Assembly. spective dis SEC. 5. That the said district attorneys shall give To give their their advice to the civil officers of their respective advice to offidistricts, touching any matter in which the public cers in their rehave an interest; and the said district attorneys shall tricts. receive such compensation for their services, as the board of county commissioners of their respective counties shall from time to time deem proper, either as an annual salary, or by making payment on the Compensation. bills for services rendered, as they shall judge best. APPROVED, January 15, 1839. DIVORCE. AN ACT concerning Divorce. SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That divorces For what causfrom the bonds of matrimony shall be adjudged and es divorces may be decreed. Residence for decreed for the following causes, to wit: 1. Impotency. 2. Adultery. And divorces a mensa et thoro shall be adjudged and decreed for the following causes, towit: 3. Extreme cruelty. 4. Wilful desertion of either party for one year: Provided, however, That divorce from the bonds of matrimony may be decreed for these latter causes at the discretion of the court. SEC. 2. That no divorce shall be granted, except one year to be in cases of adultery, unless the petitioner for such proved by peti- divorce shall prove his or her residence in this Territory for one year next preceding his or her application. tioner. Collusion of the parties. Adultery of the wife. Adultery of the husband. Where applications for di vorce to be made. SEC. 3. That no divorce shall be adjudged and decreed where the complaint is founded on collusion of the parties, or where the party complaining is guilty of the crime set forth in his or her petition. SEC. 4. That when the divorce shall be decreed for the adultery of the wife, the husband shall have the personal estate for ever, and the real estate of the wife during his life, in case they have issue born alive of her body during the coverture, otherwise during her natural life only, if he shall survive her: Provided, nevertheless, That the court may allow for her subsistence so much out of the personal or real estate as they shall judge necessary. SEC. 5. That when the divorce shall be decreed for the adultery of the husband, the wife, if there be no issue living at the time of the decree, shall be restored to all her lands, tenements, and hereditaments, and be allowed, out of the personal and real estate, or both, of the husband, such alimony as the court shall think reasonable, not exceeding the use of one moiety of his real estate during the life of the wife, and the property of the one half of his personal estate, having regard to the personal property which came to the husband by the marriage, and his ability; but if there be issue living at the time of the decree, the court, with regard to ordering restitution or granting alimony as aforesaid, may do as they shall judge the circumstances of the case may require, and, upon the application of either party, may from time to time make such alteration therein as may be necessary. SEC. 6. That all applications for divorce shall be made to the district court of the county where the parties, or either of them, may reside. The petition shall state the names and age of the parties, and the cause (being one of the preceding causes enumerated) on which the prayer of the petition is founded. SEC. 7. That the courts aforesaid shall be and they Witnesses may are hereby authorized to hear witnesses in open be heard in court, on the stand, or to receive depositions taken, open court, or with notice to the adverse party, under the order of ceived. the court, or a judge at his chambers. depositions re layed for lack SEC. 8. That no want of form shall delay or ob- Proceedings struct the proceedings. Notice of the petition, and not to be deof the time of hearing the same, shall be published of form. in a newspaper, printed within this Territory, eight Notice of the weeks at least before a decree shall be made, or petition, &c.. to longer notice as the court may direct, and notice of be published. taking depositions shall be given in all cases. SEC. 9. If either party shall claim a trial by jury Trial by jury of the facts set forth in the petition, the court shall may be claimed thereupon make up an issue, and empannel a jury by either party. for the trial thereof, and render judgment upon the finding of such jury: Provided, That if the petition Proviso. APPROVED, December 29, 1838. EDUCATION. AN ACT providing for the establishment of Common Schools. each county. SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That there Common shall be established a common school, or schools, in schools to be each of the counties of this Territory, which shall be established in open and free for every class of white citizens between the ages of four and twenty-one years: Provided, That persons over the age of twenty-one years may be admitted into such schools on such terms as the trustees of such district may direct. SEC. 2. The county board shall from time to time School districts form such districts in their respective counties, to be formed by whenever a petition may be presented for that pur- on petition. pose by a majority of the voters resident within such contemplated district. county board SEC. 3. The legal voters in each district, to be Election of offiestablished as aforesaid, may have a meeting at any cers. time thereafter, by giving ten days' previous notice, at four of the most public places within the township or district, of the time and place of the same, Duties of the trustees. School district constituted a at which meeting they may proceed, by ballot, to elect three trustees, one clerk, one treasurer, one assessor, and one collector, who shall severally take an oath of office faithfully to discharge their respective duties. SEC. 4. It shall be the duty of the trustees to superintend the schools within their respective districts; to examine and employ teachers; to lease all land belonging to the district; to call meetings of the voters whenever they shall deem it expedient, or at any time, when requested so to do by ten legal voters residing within said district, by giving at least ten days' notice of the same, by putting up written or printed notices at three of the most public places in the district; to make an annual report to the county commissioner's court in the proper county, of the number of children living within the bounds of such district, between the ages of four and twentyone years, and what number of them are actually sent to school, with a certificate of the actual time a school is kept up in the district, with the probable expense of the same. ŠEC. 5. Each and every school district, when established and organized as a free school shall be body corporate and they are constituted a body corporate and politic, so far as to commence and maintain an action on any agreement made with any person or persons for the non-performance thereof, or for any damage done their school house, or any other property that may belong to, or be in the possession of, such school, and be liable to an action brought and maintained against them for the non-performance of any contract by them made. Trustees to prosecute and defend suits, &c. To give orders on the treasu rer. SEC. 6. It shall be the duty of the trustees to prosecute and defend all such suits, in the name of the trustees for the benefit of the school district, giving it its proper name, and that it shall be lawful for the said trustees, in the name and for said district, to purchase, or receive as a donation, and hold in fee simple, any property, real or personal, for the use of the said school district; and they may prosecute, or defend, any suit or suits relative to the same; and it shall be the duty of the trustees to give orders on the treasurer of the said district for all sums appropriated in paying teachers, and all other expenditures necessarily incurred in establishing, carrying on, and supporting all schools within their respective districts; and at the regular annual meeting of the |