RULE XXVI.

1. In all cases where notice of a motion is necessary, unless for good cause shown, the time is shortened by an order of one of the justices, the notice shall be five days, and one day for every twenty-five miles distant from the point where the motion is to be heard, and between points where there is regular communication by United States mail.

RULE XXVII.

1. When a judgment is reversed or modified, a certified copy of the opinion in the case, if there be any, shall be transmitted, with the remittitur, to the court below.

RULE XXVIII.

1. No paper shall be taken from the court-room or clerk's office, except by order of the court, or of one of the justices. No order will be made for leave to withdraw a transcript for examination except upon leaving with the clerk a written receipt therefor.

RULE XXIX.

1. Writs of certiorari may be issued by the clerk, upon the order of any justice of the supreme court, on the filing of a petition therefor, and shall be returnable within thirty days.

RULE XXX.

1. When causes are placed upon the calendar, parties shall be primarily liable for costs, as follows: First, if by the appellant, he shall first be liable; second, if by the respondent, or by consent, then both parties. In civil cases the clerk shall not be required to remit the final papers until the costs are paid. In all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no direction as to costs of appeal, the clerk will enter upon the record and insert in the remittitur a judgment that the appellants recover the costs of the appeal.

RULE XXXI.

1. All causes regularly on the calendar may be brought to a hearing by either party, when called in their order, on the

day for which they are set, or as soon thereafter as they may be reached in the regular call, without further notice than is contained in the apportionment of the calendar by the clerk. When the appellant has failed to file the transcript, as provided by Rule 2, and the cause is put on the calendar on the motion of the respondent, the appeal will be dismissed, or judgment affirmed, in the discretion of the court, on motion of respondent.

RULE XXXII.

1. All applications to this court for peremptory writs of mandate must be noticed for the first day of the term. The notice shall require the respondent to serve and file his answer within the time hereinafter specified, and notify him that if he fails to answer within the time prescribed, the application will be heard on the moving papers, on the first day of the next term. The notice of the application, together with a copy of the affidavit and other 'papers upon which the application will be based, shall be served on the respondent at least twenty days before the said first day of the term, unless the court or one of the justices shall shorten the time. As soon as practicable after such service, the said notice, affidavit, and other papers, together with the evidence of service, shall be filed by the applicant with the clerk of this court. Within the time mentioned in the notice the respondent shall file his answer, and serve a copy thereof on the applicant or his attorney.

RULE XXXIII.

1. When the application is for an alternative writ, the affidavit upon which the application is made shall be filed with the clerk before the issuing of the writ, and a copy of the same shall be served with the writ. The writ shall command the party to do the act required to be performed, or show cause why he has not done so, by filing his answer thereto within the time specified in said writ, as hereinafter provided, and shall notify the respondent that on failure so to do, the application for the peremptory writ will be heard on the papers of the moving party on the first day of the next succeeding term, or upon such day in term as may be appointed by the court, when a special return day has been

inserted by order of court. The return day specified in the writ shall be twenty days after service of a copy of the writ and affidavit; or, if the court appoint a special return day, then the day so appointed. Within the time so designated for the return of said writ the respondent shall either do the act required to be performed, or file with the clerk his answer to the writ and affidavit, and serve a copy thereof on the applicant.

RULE XXXIV.

1. In proceedings relating to writs of mandate, preliminary motions necessary to be disposed of before the cause is placed upon the calendar for final argument will be heard on the first day of the term.

RULE XXXV.

1. If, in such proceedings, an answer be filed which raises an issue of fact essential to the determination of the application, the question of fact will be directed to be tried by a jury, before some district court, to be designated in the order, or, where the parties so agree, by a referee; and the argument will be postponed till the verdict or finding upon such issue of fact shall be duly certified to this court.

RULE XXXVI.

1. The final argument in proceedings for writs of mandate, whether upon questions of law arising upon the papers in the case, or upon the facts as found by a jury or referee, will be heard on the first Tuesday of the first week of the term, or at such other time as the court may by order direct. A calendar of such causes will be made out for that day, upon which the clerk will place all applications for mandate ready for final hearing. All applications for writs of mandate not ready for hearing on said day (unless for special reasons otherwise directed) will be continued to the next succeeding term of the court.

RULE XXXVII.

1. Cases argued or submitted for decision in term, may be decided, and decision and judgment may be rendered in vacation; and the decision and judgment rendered, by a majority of the justices in vacation, shall have the same force and effect as a decision and judgment rendered by the court, in term; and remittitur shall be issued thereon by the clerk of the court, as upon a judgment rendered in term.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

TERRITORY OF ARIZONA,

JANUARY TERM, 1866.

J. H. DAVIS, RESPONDENT, v. JOHN SIMMONS, AP

PELLANT.

ESSENTIAL LEGAL REQUISITES OF POSSESSORY RIGHT TO PUBLIC LANDS in Arizona, are the intention of the settler to permanently occupy and improve them for his home, and the manifestation of that intention, as early as practicable, by such improvements and badges of ownership as make it known to others. And any settlement, cultivation, or improvement, in pursuance of this intention, is sufficient to secure this right to the occupant, and to enable him to maintain ejectment against any one who disturbs him therein.

FACT THAT TRACT OF LAND CLAIMED BY SETTLER IS ONE MILE LONG, and only one fourth of a mile in width, does not invalidate his claim, or justify another in appropriating any portion of it.

OFFER OF CLAIMANT OF LAND TO BUY HIS PEACE is not, if rejected, the surrender of any legal advantage, or the admission of an adverse claim.

THE facts are stated in the opinion.

J. P. Hargrave, for the appellant.

The mere entry upon public land without inclosing it, gives no right of action on the possession alone. The com

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