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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (April 2, 1846)
El ! U au'-uj j;. Y AlTHOMITY. 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. ilunt. 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. JRTieut iv. (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 in person. $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 Oregon Spectator. H Hsnsnl . "Westward the Star of gmpire takes ks wir." fol. L Onfo Otty, (ONftB Tat.) TkmUj, Ifrfl 2, IMS. -f - Mt.l, 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 demand. 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 oordingly. 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. ftja-JIpiaiJhelingof-thereoeeaiags 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 motion. -s 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 pay WYlMtHmWMWmW' 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 ment. m 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 fine. ',.""".' 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 lifHisniikf before a jnetioa, may, upon lUsMlUii 'to by any judce or iustlos ef tha poaaa .of. any terriT wh M ?ty W J F judge c 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 vi j
