Oregon spectator., April 02, 1846, Image 4

cONTIlfolD WOM PUWT PAOB.
out of the county, and has no agent in
the suit thereiri, the service of such notice
may be by filing a copy thereof with the jus.
tice before whom the suit is pending.
63. The deposition shall bo taken and
certified according to tho statute of this ter
ritory regulating tho taking of depositions,
and shall be sealed up and returned so seal,
ed to the justice, before whom the suit, in
which it is taken, is pending, and when such
deposition is taken out of this territory,ithe
official character of the officer by whom it
is taken, shall be certified under the seal of
the state or county where such is taken, or
under the scat of some court therein.
64. The justice shall allow every dope,
sition taken and returned, according to the
provisions of this act, to bo read on the trial
of the cause in which it is taken, in all ca
ses where the same testimony, if given vcr.
bally in court, could have been received; but
no such deposition shall be read on the 'trial,
unless it appear to tho justice that, the wit.
ness whose deposition is offered frtt, is dead
or resides out of the county; or, second,' in un.
able to, or cannot safely attend before the
iuttice. on account of sickness, ase. or other
bodily infirmity ; or, third, has gone out of
ine county, wunoui uio consent or vuuusiuu
of the party offering the deposition. ,
ARTICLE VI.
OfjudgmeiUt.on nonsuits, dnd by default, and
$wWhen a defendant, who has Been
duly 'Jwjrjved.'iwith. process, and when a de
fendantwhovfias once appeared to a suit, the
trial of znjifih has been adjourned, shall ne
glect to appear within one hour after the re
turn time of the process or the adjourned
time, the justice shall proceed in the cause
in the following manner :
First. If the suit be founded on an instru.
xtent of writing, and purporting to have been
executed by the other party, and the demand
of the nlaintHT is liquidated by such instru.
,ment, the justice shall, whether ihe plaintiff
appear or not, render judgment against the
defendant by default,for the amount which
shall appear by such instrument to be due to
the plaintiff, aftor allowing all 'proper dis
counts for all payments endorsed 'thereon,
with costs.
Second. If tho suit bo notTfoundod on an
instrumentof writing, as is declared in the
preceding "clause of this section, and the
plaintiff appears in person or by his agent,
the justice shall proceed to hear allegations
and proofs, and snail determine as tho very
rjght thereof shall appear trom the testimo.
ny ; and if it appear from such testimony
that the plaintiff is entitled to recover, judg
ment shall be renderedr'uy default against
ino aeienaam iojvbo mucn as ineaiesumony
shows the phuntiff entitled to recover, to.
gether with the costs. If it do not appear that
the plaintiff ought to recover, judgment shall
be given for the defendant as upon a verdict
against the plaintiff with costs.
, Third. If the plaintiff fail to appear, ex.
copt when the suit is founded upon an instrur
meat of writing as is declared in the first
clause of this section, the justice shall ren
der judgment of non-suit against the plain,
tiff with costs.
66. In all cases not otherwise specially
provided for, if the plaintiff fail to appear in
person or by agent, within an hour after the
time appointed for the trial of the cause, the
justi&nduTlrronder judgTnenr6fnon.suit
against him with costs.
67. Every justice of peace shall have
power, on the application of the aggrieved
or his agent, and for good cause shown, to
set aside judgment ofnon-suit and by de
fault, upon such terms as shall be just. Ev
ery won application shall be made within
sixf days after rendering of the judgment;
and if, in tho mean time, any execution has
been issued, the justice may revoke the same
in the. maimer hereinafter provided for re.
yoking u execution, after an appeal has
fcM allowad, and with like effect. The jus.
tloe shall, in, all oases, make an entry in his
docket of every tuch application, and of the
day on which ktwas made, togther with his
orders theraon.r-'
& 66. If any judgment bo selaside, and
a aew trial granted; the justice shall fix a
time for such trial, tad make out, under his
hand, a notice to the epposito party, Mating
the fact that suoh judgment has been set
aside, and specifying therein the time and
place fixed for the trial. The notice shall
be served on the party or kjk sx days
before the trial, andahirb"axecuted and
returned in like manner m a summons, and
the same fees allowed therefor.
69. Every- suit instituted by summons
or warrant, shall be determined on the re.
turn of the process duly served, unless the
cause be adjourned.
o 70. When both parties aooear before the
justice in person, or by agent, at the time ap
pointed torthe trial or the cause, the justice
hall proceed to hear tho allocations and
proofsbfxthe parties, and to determine suit, as
the very rignt ot the case shall appear.
71. Before the justice shall commence
an investigation of the merits of the cause,
by an examination of witnesses or hearing
or anyother testimony, either or the parties
may demand- of tho justice that the cause
be tried by a jury.
72. The jury shall consist of six per
sons, but the parties may agree upon any
number of jurors less than six, to try the
cause, and in that case the jury shall con
sist of such number, not exceeding six, as
the parties may agree upon.
78. The justice shall issue anummons
directed to any sheriff or constable of the
county wherein tho cause is to no tried,
commanding him to summon six (or such
less number as the parties may have agreed
upon) good and lawful men of the county,
qualified to serve as jurors, in the county
court of the same county, who shall be no
wise of kin to either party, nor interested in
the suit, to appear before said justice at a
time and place to be named therein, to make
a jury for the trial of the action between the
parties named therein.
74. The sheriff or constable shall exc
cute such jury summons fairly and impar
tially, and shall not summon any persons
whom he has reason to believe arc biassed
or prejudiced, for or against either of the
parties. He shall summon the jurors per
sonally, and shall make a list of the persons,
which he shall certify and annex to the sum.
mons and return to the justice. If a suffi
cient number of competent jurors cannot be
obtained from the panel returned, the con
stable shall immediately summon others to
serve in their place.
y 75. To each juror the justice shall ad
minister an oath well and truly to try the
matter in difference between , plain-
tiff, and , defendant ; and unless dis-
charged, (by the justice,) & true verdict give
according to the law and evidence.
76. After the jury are sworn, they shall
sit together and hear the allegations and
proofs of the parties, which shall bo deliv
ered publicly in their presence.
77. If a witness, on being produced, shall
be objected to as being incompetent, such ob
jection shall bo tried and determined by the
justice. Every person offered as a witness,
before any testimony shall be given by him,
shall be duly sworn or affirmed, that the cv
dence he shall givo relating to the matter in
issue between , plaintiff, and ,
defendant, shall be the truth, the whole truth,
and nothing but the truth.
y 78. If there shall be no evidence given
to establish any demand founded upon cod.
tract, or to establish any set-off, or if the
evidence given be insufficient for that pur.
pose, the justice may, upon the application
of the party offering Buch demand or set-off,
order the opposite party to be sworn in vela,
tion thereto; if the party thus required re
fuse to testify, the justice shall allow the par
ty offering such demand or set-off to be sworn
and examined in relation to the same matter.
After an examination of either party, no fur
ther evidence shall be given in relation to
such demand oi set-off.
70. Either party, in any suit founded on
contract, may cause the opposite party to be
subpeened as a witness in the cause, in the
same manner and with like effect as any
other person. If the party, after being duly
subpoened, fail to attend the trial personally,
and such failure bo not accounted for, the
justice may allow the other party to be
sworn and examined as a witnoss in all ca
ses, and with like effect as if the subpoened
party had been personally present, and had
refused to testify.
& 80. If any suit or set-off be founded up.
on an instrument of writing, purporting to
have been -executed by the opposite party,
such instrument shall be received in evf.
dence upon the trial, unless tho party (be.
fore the jury be sworn or the trial submit
ted to the justice) charged to have oxecuted
the same, shall deny the exeoution thereof,
on oath taken beforo such justice, or by an
affidavit filed with the justice, and taken be-
fore any court or officer authorized to ad.
minister oaths.
& 81. The nracedins section shall not be
construed to authorize any instrument of
writing to be received in evidence, without
proof of jta exoouticu against an executor
or administrator, or any other person, re.
presenting the person charged to have execu
ted such Instrument.
y 82. When tho jurors havo agreed on
their verdict they shall deliver the samelo
the justice pjublicly, who shall enter it on his
docket.
y 83. Whenever a justice shall bo satisfi.
ed that a jury sworn, in any civil cause be
fore him, after having been out a reasonable
time, cannot agreo on their verdict, he may
discharge them and issue a new jury sum
mons, uless tho parties consent that tho jus
tice may render judgment on tho evidence
before him; which, in such case, he may do,
unless they consent that tho trial upon a
new hearing of tho evidence shall be by tho
justice.
y 84. Ever person who shall be duly sum.
moned as a juror, and shall not appear, nor
render a reasonable excuse for his default,
shall bo subject to the same fine, to be prose,
cuted for and collected with costs, in tho
same manner, and applied to tho same use,
as hereinbefore provided in respect to a per.
son subpeened as a witness and not appear,
ing.
. ARTICLE VII.
Of judgments and filing transcripts thereof,
6 85. A justice of tho peace may enter
judgment by confession of tho defendant, in
any case where tho amount confessed docs
not exceed one hundred and fifty dollars.
6 86. No confession shall bo taken or
judgment rendered jhwreon, unloss tho fol
lowing requisites bo complied with :
First. The defendant must personally ap
pear before tho justice.
Second. Tho confession must bo in wri
ting, signed by tho defendant, or by some
person by him thereto lawfully Authorized,
and filed with the justice.
&67. If there be mutual justices' judg.
merits between tho same parties, one may lie
set-off against the other by the justice before
whom the judgment against which the off-set
is proposed may be.
9 88v If tho judgment proposed as a set
off was rendered before another justice, the
Carty proposing such set-off must produce
efore the justice a transcript of such judg
ment, upon which there is a certificate of tho
justice rendering the judgment, that there is
no appeal, and that such transcript was on
tained for tho purposo of being set-off against
the judgment to which it is offered us u set
off. Tho justice granting such transcript
shall mako an entry thereof in his docket,
and all further proceedings on such.rhall be
stayed.
$ 80. If any justice shall set-off one judg.
ment against another,. he shall mako an en.
try thereof in his docket, and execution shall
issue only for the balance which may be due
after such set-off. If a justice shall allow u
transcript of a judgment rendered by anoth
er justice to bo set-off, he shall file such
transcript among the papers relating to the
judgment in which it is allowed in set-off.
If he shall rsfuso such transcript as a set
off, he shall nocortify on the transcript, and
return the same to the party Who ottered it.
Y 00. If, upon the appearance of the par.
ties on tho return oT process in any case, (ox-
cept when the defendant is arrested by war.
rant,; trie aeienaam unau, oeiore mo jury is
sworn, or the trial submitted to tho justice,
make affidavit that the justice before whom
the same is pending is a material Jwitnesa for
such defendant, without whose testimony he
cann safely proceed to trial, or that ho is
of near akin to the plaintitt, stating therein
in what degree, or that he believes he can.
not obtain justice before suoh justice, tho
cause shall be transferred to the next nearest
justice of tho proper county.
6 01. In cases where a plaintiff shall be
non-suited or withdraw his action, and where
judgment shall have been oonfossed, and in
all cases where a verdict snail be rendered,
or the defendant shall be in custody at the
time of hearing the oause, the justice shall
forthwith render judgment, and ontor the
same in his docket. In all other cases he
shall render judgment, and enter the same
in his docket within three days after the
cause shall have been submitted to him for
his docision.
A 02. If any sum be found in favor of a
party, either by a verdict of a jury or upon
hearing of tho cause before a justice, ex.
qoeding the sum lor wnion a juauuo au
thoriaed to give judgment, suoh party may
remit and release the excess, and tako judg.
ment for the residue
$08. Every justice, on the demand of any
person in whose favor ho shall havo render,
ed judgment for more than ten dollars, ox.
elusive of costs, shall give to suoh person a
cortified transcript of such judgment, and
tho clork of the county court of the samo
county in which tho judgment was render
ed, shall, upon tho production of any such
transcript, file the samo in his office, and
forthwith ontor such judgment in tho docket
of tho county court judgments and decrees,
and shall no'to thoroin tho Unto of filing such
transcript.
y 04. Every suoh judgment, from tho timo
of suoh filing of the transcript thereof, shall
have the same lion .on tho real estate of tho
dofondant in the county, as a judgment or
tho county court of tho samo county, shall
be equally under tho control of the county
court, and shall be carried into execution in
(fin nma manner and with like effect, as tho
judgments of such county court; but no exc.
cution shall bo issued thereon out oi ino coun
ty court, until an execution shall have been
issued by a justice and returned, that tho de
fondant has no goods or chattels whereon to
levy tho same.
ART1CLK vm.
Of executions and proceedings thereon.
6 05. Upon every judgment rendered by
a justice, execution shall bo issued by suoli
justice in the maunor hereinafter prescribed,
at any time upon demand, and no stay upon
execution shall bo permitted or allowed, ex
cept by tho consent of tho party in whose fa
vor the execution has been issued, nor for
any time other than the timu agreed upon by
tho parties.
y 06. Tho execution shall bo directed ex
cept where it is otliorwise specially, provided)
to any sheriffor constable of tho county .where
the justice resides shall be dated on the dny
it was issued, and be made returnable with
in thirty days from tho date. It shall Im
against the goods and chattels of the person
against whom the same was issued.
y 07. If any execution Iks not satisfied, it
may, at tho request of the plaintiff, le re.
newed from time to '.me by tho justice is
suing tho same an endorsement thereon
to that effee' , signed by him, and dated when
the samr ..hall be made. If any part of such
cxccu'.on has been satisfied, tho endorsement
of rr jewal shall express tho sum due on the
execution. Every such endorsement slmll
renew the execution in full force in all re
spects for thirty days and no longer, and an
entry of such renewal shall be made in tho
docket of the justice.
y 08. Th'j sheriffor constable, after taking
goods and chattels into his custody by virtue
of an execution, shall, without delay, givo
public notice by at least three advertise
ments put up at three public places in tho
county, of the time and place when and
where they will bo exposed to sale. Such
notice shall describe tho goods and chattel
taken, and shall bo put up at least fifteen
days lie fore the day of sale.
6 00. At tho timo appointed, if the good
and chattels bo present for the inspection of
bidders, the officer shall expose them to salo
at public vendue; hut shall not sell the samo
at less than two-thirds of its value, as pro.
vided in the law regulating executions: said
officer, at tho time of making his return to
the justice, shall pay over all monies arising
from snch sale for the use and benefit of tho
porsons respectively entitled thereto.
100. No sheriffor constable, or othor of.
ficer, shall, directly or indirectly, purchase
any goods or chattels at any salo inado by
him upon execution, but every such salo
shall be absolutely void.
101. If tho goods and chattels so Ibviod
are not sufficient to satisfy suoH exeoution,.
the sheriff or constable shall, upon the de.
mand of the plaintiff, summon, in writing, as.
garnishees, such debtors of the defendant in
exeoution, as may be named' to him by tho
plaintiff or his agent, to appear before the
justice on the return day of the execution, to
answer suoh iuterrogatories as may be ex
hibited against them, touching their indebt
edness to suoh defendant; and the liko pro
ceedings shall be had therein before the jus
tice to final judgment and exeoution, as in
sults instituted by attachment in a justice's,
court.
TO BE C0NT1NUKD.J
I
ft v., I..
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