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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (April 2, 1846)
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.. -?
