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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (April 2, 1846)
AN AfcT to UUWi Cwtto, sad prescribe their pow-
cti sad duties.
costumed ntoy our lorr.
2gMn all cases not otherwiae specially
provided for, the broccss in all suite shall be
a summons ; and every summons shall be
directed to any sheriff or constablo of the
courtly in which the justice who granted the
same resides, except when it is otherwise
specially providod; and shall command him
to summon tho defendant to appear before
tho justice who issued the same, at a timo
and placo to bo namod in the summons, not
loss than seven nor moro than twenty-one
days from tho date thereof, to answer the
complaint of the plaintiff.
22. Every summons shall ho served at
least fivo days boforo tho return day thereof.
23. A justice of tho pcaco shall issue a
warrant in every case, whoro he is satisfied
from the affidavit of tho person demanding
tho Name, or from any other person, that
the plaintiff has a subsisting and, unsatisfied
cause of action against tho defendant, and
that the defendant is about to remove from
tho county, or to abscond from his usual
place of rcsideaco, or that tho plaintiff will
bo in danger of losing his debt or demand,
unless such warrant be granted.
24. A warrant shall be served by ar
resting thu dofondant and taking him before
tluf'juttice who issued the same; but if such
justice be, on tho return thereof, absent or
-unaulcto trytlic'causo, or if iFbo made ap
pear to tho justice, by tho affidavit of the
defendant, that said justicujs a material wit.
iicss for the defendant, or is near of kin to
the plaintiff in unit, stating therein the do
gree, thu sheriff or conMublo shall forthwith
tuku tho defendant to the nearest justice of
thu sumo county, who shall tuke cognizance
of the cause and proceed thnrcon, us if the
warrant had Ihicii issued by himself.
'J5. When a defendant is brought before
a justice on a wurrant, he shall, in no case,
I hi detained longer than twcnty.four hours
from tho timo he shall be brought before the
justice, unless within that time the trial of
thu cuuho has commenced, or unless it has
been dtlued at thu iuMaticc of tho defeu.
2(1. Kvery justice Issuing any process,
utitliiirizcii by this act, upon hcina satisfied
tliut such process will not be executed for
want of an officer to be had in timo to exc
cute tho same, may empower any suitable
Mrson, not being a party to thu suit, to exe
cute the same, by un endorsement on tho
process, to tho following effect : "At tho
risk mid request of the plaintiff, I authorize
to cxecuto and return this writ. A.
H., Justice of tho Peace." And the person
so empowered ahull thereupon possess all the
uuthority of a sheriff or constablo in relation
to the execution of such process, and shall
lo subject to tho saino obligations, and shall
receive the samo fees for his services.
27. If, at any timo after tho commence
ment of a suit, the defendant pay to tho shor
iff or constable, or the justice of tho Mace
who issued tho process", tho full amount of
the claim nil the costs which may then
have accrued, thu suit shall be discontinued;
or if it be further prosecuted, the plaintiff
shall pay all costs that may accrue after
such payment, and tho justice before whom
the suit is brought shall endorse tho amount
upon tho summons or warrant for which suit
is commenced, including interest and coats.
28. Every sheriff or constablo serving
any process authorized by this act, shall re.
turn thoroon in writing (endorsed on tho
back) tho timo and manner of service, and
shall sign his name to such return.
2ft. If any sheriff or constable fail to
Execute any process to him delivered, and
to mako due return thereof, unless for good
causo, or mako falso return, such sheriff or
.constahlofor every sueh offence, shall pay
to tho injured party ten dollars, and all dam.
ages such party may havo sustained by rea
son thereof, to bo recovered by an action of
debt founded upon this statute, and be liable
to indictment for misdemeanor.
(Of the appcoratve andpUadrnge of the parties
and of adjournment.
30. Any plaintiff In any suit, except per.
sons under twenty.ono years of age, may ap
pear and conduct his suit, eUhorby agent or
$31. No auit shall be instituted by as in
tent plaintiff, until next friend for suohin.
tknt shall have been appointed. Whenever
loquested, the justice shall appoint soma
H Hsnsnl .
"Westward the Star of gmpire takes ks wir."
Onfo Otty, (ONftB Tat.) TkmUj, Ifrfl 2, IMS.
suitable person who will consent thereto, In
writing, to bo named by such plaintiff, to
act as his nextfr.end.in such sun, and such
infant shall bo responsible for the coats there
in as fully as if he ware of lawful age; and in
all such cuseSjit shall bo discretionary with
the justice to dismiss such suit, when satis,
fied that tho same has been commenced in
advisedly or vexatiously; or the justice may
require oi such infant to give security for
costs, as if of full age, and for like reasons.
32. Every defendant in a suit may ap.
pear and defend the same either in person
or by agent, except persons under twenty,
one years of age.
33. After the service snd return of pro.
cess against an infant defendant, fthe suit
shall nrit bo further prosecuted until a guar
dian for such defendant shall have been ap
pointed, upon jho request of such defen
mint, the justice shall appoint some person
who will consent thereto, in writing, to be
the guardian of the defendant in defence of
the suit ; and if the defendant shall not ap.
pear on the return day of the process, or if
lie neglect or retuse to nominate such guar,
dian, the justice may, at the request of tho
plaintiff, appoint anyjdiscroet person as such
guardian, ana tne consent of such guardian
or next fricndjshall be filed with tho jus
tice, and the guardian for the defendant shall
not be liable for any costs Ui tho suit.
34. A party authorized to appear by
agent, may appoint any person to act as such
agent, and the authority of the agent may
be either written or verbal, and shall, in all
cases, when the justice requires proof, be
proven cither by the agent himself, or by
other competent testimony, unless admitted
by the opposite party.
3.ri. Upon the return or a summons duly
served, the justice shall wait one hour afW
tho time specified in such writ,, for the ap
pearance of parties, ujilrss they sooner ap
pear. 6 30. When both parties first appear be.
fore the justice, either upon tho return of
process, or upon their voluntary appearance
without process, the justice shall, on the ap.
plication of the defendant, and may, without
such application, require of the plaintiff a
brief verbal statement of tho nature of his
37. A defendant may sot-off any demand
which he may have against the plaintiff in
all cases, where such set-off is allowed by
Mho statutes of this territory regulating set-
oil, except in tho two following cases : -
First. When tho demand to be set .off ex.
cceds the jurisdiction of a justices' court; or,
Second. When it is founded' upon on in
strument of writing, oxecuted by the plain,
tiff and assigned to the defendant, and it shall
not appear on tho trial of the cause that the
assignment was made to the defendant pre
vious to the commencement of the suit.
38. To entitle defendant to setoff any
demand, ho must give notice thereof in court,
either verbal or written, before tho jury is
sworn or tho trial submitted to the justice,
and when tho set-off is founded upon an in
strument of writing, oxecuted by the plain
tiff or by ffts testator or intestate, or upon an
account, he must, at tho time of giving no
tice, file with the justice such instrument or
a bill of the items of such account.
80. If such instrument be alledged to be
lost or destroyed, it shall be sufficient for the
defendant to file with the justioe an affidavit
similar to that required of a plaintiff upon
instituting a suit in a justice's court, on a tost
or destroyed instrument of writing.
40. If the amount of the setoff, duly
established, be equal to the plaintiff's debt.
judgment shall be entered for the defendant,
with costs of suit; if it be less than the plain.
tin s dent, tne piaintm snail nave judgment
for the residue only, with costs; and if it be
more than the plaintiff's debt, the defendant
shall have judgment for the excess, with
costs, and execution shall be awarded ac
41. Whenever a .Ktk established in
a suit brought by, the executors or ffdmfafo
trators, exceediag the amount of the plain
tiff's demand, the judgment shall be against
them in their representative character, and
shall be evidence of a debt established, but
no execution shall issue thereon.
42. If, jn a suit of trespass upon any
lands or tenements, the defendant shall jus.
tify tho trespass by a plea of title, the jus
tice shall immediately make an entry of it
in his docket shall cease all further pro
ceedings in the case, and oertify and return
to the county court of the proper county, a
transcript of all the entries made in bis dock
et, relating to the case, together with all the
process and other papers relating to the suit,
and filed therein in the same manner,' and
within the same time.. as udob an aseeal.
and papers in the office of the clerk, the court
shall become possessed of the cause and pro
ceed therein to final judgment as upon an ap
peal; but on the trial, in such court, the plain
tiff shall only be required to prove himself enti.
tied to, or in possession of, the lands or tene
ments on which the trespass is alledged to
have been committed,, and no other bar to
the action shall-be pleaded by the defendant,
except the plea of title.
44. A justice of tho peace, without the
application or consent of either-party, may,
ii u uo necessary, sojourn a cau
ceeding three days for any one adj
but a justico shall, in no case.
cause commenced by warrant, upon
48. A justice of the peace, upon the ap
plication of either party, with good cause
shown, may adjourn a cause, not exceeding
sixty days for any one adjournment, and
may adjourn for a longer period, w'.th the
consent of both parties. t j
46. No adjournment shall be allowed
upon the application of a party, unless' such
party satisfy the justice by his own oath, or
affidavit of some other porson, that he can
not safely proceed to trial for want of some
material testimony or witness that he used
due diligence to obtain the same, and that he
cannot prove the fact by any othcr.'person,
and if an adjournment be allowed, lie will
be able to procure such testimony or witness
in timo to be used upon the trial.
47. Every such adjournment ahall be for
such reasonable time as will enable the par.
ty to procure such testimony or witness," not
to exoeed sixty days, and shall be at the cost
of the party applying therefor, unless other
wise ordered by the justice.
48. If a cause commenced by summons
be adjourned on application of the defendant,
ho shall, if the plaintiff should request it, en
ter into a recognizance before the justice,
with such security as the justice approves,
in a penalty sufficient to secure the plaintiff's
demand and costs, conditioned that if judg
ment be given against him in the suit, and
execution bo issued against him, that he or
his security will pay the judgment .so recov
ered ; and if tho cause be adjourned on ap.
Sdication of the plaintiff, he shall, if the de
endant should request it, enter'into a simi
lar recognizance, Jn a sufficient penalty, and
under like condition.
40. If a cause commenced by warrant
be adjourned on the consent of both parties,
or on the application of tho plaintiff the de
fendant shpll .be discharged from custody;
but the catuxr shall not be discontinued by
such discharge, and at the adjourned day
the same proceedings shall be had aa. on the
return of a summons duly served.
50. But if suoh cause be adjourned upon
the application of the defendant, he shall con.
tinue, during the time of the adjournment, in
oustody. unless be shall enter into recognis
ance before the justioe, with suoh security
as the justioe approves, in penalty suffi
cient to secure the plaintiff's demand and
costs;' conditioned that if judgment be given
against him tn the suit, and execution on is.
sued axsJe Uat, thai de or bis security Will
oi. Xflmmmmmmmm sinii havo
been given; uterlh trior adjrnawmt, it
shall not hW0mtf stenxar - any new
meat, anises sttoh i-aoognfsanoeibs required
by the inauee or U bail of the dafisnaant in
asKdfpMiacogniamjies. " ' til
- itt. -In any snk brought upon sa&reeag
ninance, thr pWatfcY shall not W esMea
renover ttsJesB he.sbown Misiajaif upon
the jaagment obtained in the suit, ks which
such adJMreariatf was had, duly Hened with
in six days after the time when. the, same
eonld kayo been kasd agaJnat.taa property
of the defendant, aid a return. thereon that
no property of the defendant can be, found.
' axticlk y.
Ofwitnene aW dnesiavMW. "
09. A 'MbpcM ianlesVty a justioe of
the pesos, shall be, valid, to comaeltke attsh
danoe in a justice's court of a witeees, being
in the sime county where tho canes Is to be
tried, or betag in an adjoining' njaiiy, and
witBM ifty muea or u piece or, trw. '
r54. A subpoena may be . served either by
a sheriff, dr any other person ddj ilusthsrf.
sed, and it shall be served by reading k to
the witness, or by delivering to him,' or leav
ins; a copy at his place of abode.
4 65. Whenever k shall appear to; the
satisftction of the justice; by proof made be
fore hint, that any person duly sube'osnedto
appearfoifehlm In a suii'sbaU have" fatted,
without iust cause, to attend as a witness tn
eonformmr tossjeh subpoena; and the party in
whose behalf such subpoena was issued, or
his agent, ahall make oath, that the testimony
oi sucn wiiness is materia., we justice awi
havo power to issue an attachxoeni to com
pel the attendance of such witness : Provi
ded, That no attachment saallisstte against
a witness unless his mileage and ana oayfs
attendance has been tendered or paid, in ad-
vanceif nreviouslv demanded bv such wit
ness, from the person serving such sabposna.
f'M. Every such attachment majr'Wdi-
reoted to any aheriff or constable of ate oinri
ty in which ffce justioe resides, awl shall it
executed in the same manner u a, warrant,
. m m -tats uV- .TXv - .!
and the fees of the ojteare for .issnjag and
serving the same, ahall be pakf by'thfcyrar.
soa.againet whom the same was issued, H
less he shew reasonable canes to the satjafce
tion.of the justice, for his omission .to attend,
in which .case the party, requiring auakaV
tachroent, shall pay all costs of such attain
57. Every person duly subpomed as a
witness who shall not appear, or wJVwhen
be shall appear, shall refuse. Ut give' testi
monyshall forfeit" for the nee of the aonnty
in which he is subpomed to' appear;' unleet
some reasonable excuse shall be shenrtt1, (on
his oath or;the'oath of.soine other pepsen;)
a fine not exceeding ten dollars; and tha jns
tioe shall make an.entry of ,the oonriotten in '
his docket, and of the cause,thereof. At the
expiration of thirty days from the; entry of
such conviction, it shall be'deen a judg
ment, in all respects, at thejsuit of snob coun
ty, and.exapuuon shall be issued thereon as
upon ..other judgments in a justioe'soourt,
and the aheriff or constable shall pay the fine
to the treasurer of the county.
58. The person upon whom schnne
shall be imposed may, at any timer before
the eipiration of thirty days,. appear before,
the. justice and abow cause agatnat .theim
position thereof, and upon the bearing f such
cause, the justioe may remit or mitigate such
J 59. Every person Bubpoaned m afhrsaaid,
neglecting to ap'pear, shall also baliablo
to ha party in whose behalf ha: may hare
been suDpcmed, for damages whloh suoh par
ty may have sustained by his-non-appear-
MM. 'niL " ' , !'
" - - k'V
00. Either party, in any dv's
before a jnetioa, may, upon lUsMlUii 'to
by any judce or iustlos ef tha poaaa .of. any
terriT wh M ?ty W
county in this
neat may be.
& 61. No suoh Jefosition shall 'he laksn,
unless notioe in n ritin. oftae Mass ansTasaba
of taking tha same, iMihMm
on ina otner party tMae.aajraJ
tins thereon with cne additional davr ay.
. A v -fc.iDrtrkj.-l.T-Vl,t lf " T -
ery twenty.nve mQts'or distanoa' nom tne
place of suah aarvioa id tha pW-taWa-.
. 0uci, iKAioe imy U jM k:UU
manner aa ai. oitglnai tummoas,
aarrlpa may byv a.ts)apariy m
m Mm- suu. ana wnen susa .umn
CONTUIVID Td tmfr Vatotr