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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (April 16, 1846)
AH ACT to UMWiCort,idpMwito their pew
coMvtiveu raoa-nys umt.
& 102. If shorlff or constable levy an cxo
outi6n bffanV ifbrJchiitK and any bar.
on, other than Uio defendant In execution,
claim iii iWWy the'eheriff.or constable
nIiuII givcCnoUoe frthwitli to some juatico of
the same county ; in which'. notice he shall
ct forth tho name of the plaintiff and defon
dant in execution, and the namo of tho por
mi :lai;ning, and also a schedule ofitho pro.
'l08. It Hhatl bo tho duty of such juatico,
immediately upon the receipt of such notice,
to iMue a jury summons, directed to any
nhcriffor constable of the county, command
ing him to summon nix disinterested person,
having the qualifications of electors, to ap
pear before liim at a timo therein mention
tioned, which shall not bo more than three
davs after tho date of said summons, to try
anil determine the right of property botween
tjo defendant In the execution and tho per
son so claiming.
$ i04. Tho justico shall also give notice
( tho plaintiff" in the execution, his agent or
attorney, if any, am! the said notice shall be
directed to the sheriff or constable, and ser
ved and returned in tho same manner as a
105. Tho justice shall administer tho fol
lowing oath to the jurorn ; You, and each of
you, do solemnly swour, (or ainnn, j mat you
will well nnd truly try and determine the right
of property lietwcon 7 claimant, and
defendant in execution, to tho goals nnd chat
tels in controversy, nnd n true verdict give
according to evidence given In-forn you;"
and the jury so sworn shall be the judges
of tin luw and tho fuel.
10(1. If the jury find the goods and chat
tids, or nny part of them, to bo the projierty
of tin' defuuduut in execution, the verdict
-liall, as uguiuit the claimnnt, justify the of
iieer in selling such good and chfttteb, as
the jury have mi found. If the verdict is
for the claimant, the plaintiff in the execu
tion shall pay the costs in the trial ; if it is
against the claimnnt, the coits shall be paid
lv such luiinunt, and the jurnm, dicriffor
eoiiKtablc, and witnesses, mIiuII Ik; entitled to
like fees as for other services in a justice's
$ 107. The sheriff or conslnblo of the coun
ty shall receive all money that may bo ten
dered to him in payment of any judgment
obtained liofore any justice of hucIi county,
and shall give the person paying tho saino a
receipt therefor, in which shall Ito specified
on what nccouut the stuiio was paid; and the
payment shall bevului against the judgment;
and upon the firoductyui of the receipt to the
justice, hImII be ereditctkjlicreto fho per
son entitled tojtho money pnidpdfnll have the
like rcmeHciragniii't tho sheriff or constable
iirtnHtijscourities for tho recovery (thereof.
us if such money was collected by tito sher-
iff or constable in execution. V7
o ids. in tho following cases tho justice
shull, uon tho demand of the party injured,
r his agent, issue a warrant against 'any
shoriffor constablo to whom any execution
has been delivered, or who has received any
money upon any judgment of Ruch justice,
whether with or without execution :
. If tho sheriff or constable fail to
make return of tho execution according io
tnc command tuereot.
Second. If ho make a falso return.
Third. If ho fail to have any monov bv
him collected on execution beforo the justico
on the return day thereof, ready to be paid
over to tho persons entitled thereto, or the
receipts of such persons therefor.
Fourth. If ho fait to pay over, upon de
mand, to tho person entitled thereto; or his
ngont, any money by him received in pay
ment of any Judgment.
$ 100. Such warrant shall require the
sheriff or constable, forthwith, to appear be-
iuro wiu justice, ana snow cause why execu
tion should not isauo against him for tho
amount duo upon tho exocution, 'or for tho
amount receivoo by him upon the judgment,
according to the nature of tho case.
110. If tho sheriff or constable fail to
appear, or appearing, Ail to show sood cause
to the contrary, the justico shall rendor judg
ment nrralnot him Ifnr'thn' aniitH A.,, k.. ...
-, rm m- m-Tty ni.if fc a" LmgrT-f , -, .h,i.ijit wwwwpi mmVm " -" - -g--em.
' "Vtwu& the Star of Etufire Uxm & way."
f ul v .1 Hi IfH I
Ortgoft Otty, (Orafti Tr.) TkmnUj, April 1, lttf,
or from tho time such monoy ought to have
boon liad before the justice, ready to be paid
over to the person entitled thereto, or from
tho time tho money received on a judgment
without execution was demanded by tho par
ty entitled thereto, or his agent, upon such
judgment an appeal may be had, as in other
111. The party injured may proceed in
the manner above directed, or may institute
a suit against the sheriff or constable and his
securities on hit official bond ; and in such
suit the plaintiff shall be entitled to like re
covery as upon a summons against the sheriff
or constable, and suits on such bond may be
brought before a justice of the peace, when
the amount claimed does not exceed the ju
risdiction of a justice of the peace.
Of appeals and proceeding thereon in the
1 12. Any person aggrieved by any judg
ment rendered by a justice of the peace, may
in person, or by his agent, make his appeal
therefrom to the county court of Jho same
county where the judment was rendered.
lift. Out no appeal can ho taken, unless
within ten duvs after the rendering of such
judgment application shall have been made
to the justice by tho party aggrieved, to set
the Name aside, and such application shall
huvu !vcn refused.
114. No appeal shsl! bo allowed in any
ease unless the following requisites be com
plied with :
First. -Tho appeal nidst be made within
seven days after tho judgment is rendered;
or, when tho judgment is by default, within
ten days after tho refusal of tho justice to
sot aside the default and grant a new trial.
Second. Tho applicant, or some person
for him, together with one or more securi
ties, to be approved by tho justice, must,
within the timo prescribed in the first clause
of this section, enter into a recognizance be
fore the justice, to tho adverse party, in a
sum Hurhcignt to secure such judgment and
the costs 01 tho appeal conditioned, that the
applicant will prosecute his appeal with due
diligenco to a decison ; and that if, on such
appeal, the judgment of the justice be affirm
ed, or if, on trial anew, in the county court,
judgment bo given against him, ho will pay
such judgment ; and if his appeal be dis
missed, he shall pay the judgment of tho jus-
tice, together with the costs of the appeal.
115. Sucti recognizance shall bo signed
by tho parties entering into tho same, and be"
attested by the justice, and be in form as fol
lows : " We, the' undersigned, and
, acknowledge ourselves indebted to
III HID OUIII Ul UUIIBIB, U UO
ment against him 'for'the' amount due bv the'
oxeoution, or for the amount received bv him
without execution, according to the nature, of
tho case, together with interest thereon at the
rato of 100 per cent, oer annum from the tlnin
such oxeoution ought to have been returned, I term of the county court, 'next after the1
void upon thk condition : Whereas
has appealed 'from the judgment of, a
justice of the peace,' in an action between
, plaintiff,' and , defendant;
now if, on such appeal, the judgment of the
justico be affirmed, orjf,' on. the trial anew' in
tho county court, judgment be given against
tho appellaruVand he shall satisfy such judg
ment; or if the appeal -be dismissed, and ho
shall pay tho judgment of the justice, to
gether with the costs of appeal, the, recogni
zance shall bo void. ' CD.
Attest: O. H., Justice. E. F;"
6 116. Upon an appeal being made accor
ding to the foregoing provisions, tho, iuatict
shall allow the same, and mako-an entry of
such in his docket ; and all further proqeed-
IntM An 4tiA Sllftrvmant KaOhm Iia iilnk'-k,Lll
fl0 vit tl.V jUUgHIUIII wuwiu MU JUOIIUB, 01111
be suspendechby thu allowance of the appeal
and if, in the meantime, oxeoution shall have
been issued, tho justico shal,gye,to theap,
Klluut a certificate that suoh appeal has
on allowed. ' ' ' ' . " '
$117. On such certificate being present
ed to the sheriff or constable holding the exe
cution, he shall forthwith release the pro:
perty o( the, defendant,, that may havn
taken in execution. .' ,'
o uts. un or .oeioro me nrst day ot. tne
appeal shall havo been allbwed, the jnstice
hall tile, in the office of the clerk of saM
court a transcript of all the, entries jnade
in his d9cketlating to the case, together
with all, the' process and other papery rela
ting io the suit, and filed with the justice.
f 110. Upoii the return of the jtukice be
ing filed in the clerk's ofice, the ootrt shall
be possessed of the cause, and shall proceed
to hear, try, and determine the same anew,
without regarding?any orrori detect or other
imperfection In' the proceedings of the jus-1
tice. -" .' ' ' - " ' --' -
$ 120. Upon an appeal being made, 'the
county court may, by rule and attachsaent,
cornpcl a return by ths justico "of his pro-.
ceedings in 'the suit, and of the papers re
quired to be by him returned, -r
131. If justice fail to allow1 an appeal
inacauso where the same ought to have
been allowed, the county; court, on such fret
satisfactorily appearing, may, by rule and
attachment, compel the justice to allow the,
same, and to return his proceedings in the
suit, together with all papers requiredto be1
returned by him.
122. Whenever the court is satisfied that
the return of .the justice is substantially er
roneous or defective, the court may, by rule
and attachment, compel him to amend the
$ 128. No appeal allowed by a justice shall
be dismissed on account that there is no ri
cognizance, or that the recognizance five is
defective,, if the, appellant will, before the
motion to dismiss is determined, enter be
fore the countv court into such reooamizanca
as he ought to havo entered into before the'
allowance of the appeal, and pay all costs
that shall be incurred by reason of such de
fect or omission. '
$ 124. All .appeals allowed ten days be
fore thefirst day of tho term of the county
court next after the appeal allowed, shall be
determined at such term, unless continued
125. If the appeal be not allowed on the
same day on which judgment is rendered, the
appellant shall give the appelleo at least ten,
days notice in writing, before the sitting of
the court at which the cause is to be deter
mined, stating the fact 'that an appeal has
been taken from the judgment therein .sped
fied. ,Tho notice may be served in like man.
ner as an original writ of sunwwps, "and
when the lippellee does not' reside in the
county, and'1 nasi no agent in the suit theriv
in,' the service may be by leaving a copy of
such notice with the justice. ,
6 120. If the appellant fails to give notice
of his appeal in a cause where such notice is
required, the cause shall, on the application'
of the appellee, be continued as a matter "of
oourse, until the suoceeding term, at the costs
of the appeUanti but no. appeal shall be dis
missed for want of such,noqoe.
VS 127. Tho same cause.of.oUon and no
other, that was tried before the, justice, shall
be'tried iri the cdiihty urt upon the' ijpj),'
and.no sot-ori shall be pleaded in the county
court that was itot' pleaded before the iustfoe,
if he summona waa.served.on tperson.of
inn nninnnim. ...
1j:"ii... .'... i 'i . . ?4..-- . . .ft -(
& iM;"Tn sll cases "of Babesia iVom a ius-
tice's court, if the judgment" of the' justice
be'atnrmed, or it on amalanew in the ooun
ty court, the judgment' be against the ftp.
pellant, such judgment shall be iwnfrc
against him and hs( securities in the recog.
mzanco for the appeal. ' ". ' '
"f 199. If, upori execution being issued up
on sdoh judgment, tho prboipal shall riot'pay
tna P1IWlBad&a,unt P' by m'
3&"!Jr cent- P3'
I'H'ope ySar after the
sjion. and the return
'.-dence, upon hear-
facts therein stated.
11. WksMveranr goods or chattels are
v-lue mt hukshaliiiDt ezoetd $160) an no
tion of replevin may be brought by the per
son having ft right to'tiW immediate posses
siomi&r the; recovery thereof, and for the re
0yejT0fth;bfnjsj., sustained, by reason of
JuWi"1 Mffft'J idetention, except na
henunafUr spyfaeflL . .,,
v"6 l8r No cross Teplevin or replevin for
tue of any legal authority shall bp brodght.
c 4 )Uf.N6irrit of replevin shall be issued,
KoUef ,the. iaiif 'e with' the justice tho
lYMof lujnseir, or ofsome credible person,
WtM'W tSfcdnSff is lawfully entitled
tb"the propertmeirtioned In the declaration,
UtJf'Sfta'fWa wrongfully detained' by
thsVfssadintrSiad that the iplaintiff's right
of aptifS bo,aored within, one year.
,.illM.'Mwrrl of replevin shall com
msjMT the1 oficerf to' whom it is directed, to
cnee (If thrafttitT'give the security re
quired by leir) the goods and clu'lols men
UosjW'iItl.decratibB to!be dblivored to
the.plituwIap deUy, and to summon
the'Wtsk''toarear before tho justice on
tiie return devy.'of the writ, and answer the
plainti in W premises.
ltft-'Noiwritof replevin shall be execu
tediWtil;th plaintiff enter into a bond to the
officer, to wh the writ is directed, with suf
ficient security,-in double the value of the
cosidiskwed, that he will prosecute the suit
wkh'eeWt.ad! without delay make return
of tha property, if,stm thereof be adjudg
ed, and. Kaea rjBsJeeJ,tne.omter touching
me rapwrruw ina propeny.
4 1M. 'liTO Ibe' receipt of the writ and
the besd'reattired by this article, tho officer
sJMMltivintlnutyflawy execute the wntj by
causBjthaHropajrty;mentiowed,in tho decla
tionlo t.dyered to the plaintiff, and by
sumnioriintf' the 'defendant1 according to the
tenor dfT'Hrrh;'' t
I f 17. ThWdeferidant may pleod that lie
is not. guilty ef the charge alledged against
him, and.thuvplea shaUiput in issue not. only
the'right oT plaintiff to the possession of
the property 'piehtioned in the declaration,
but also the' wrongful taking and detention
thereof.; d will'
$l33..Jf a fdwntiff in replevin fail to pro
secute his suitjith effect, and witliout de
lay, the juatice or juryt'shall aisess the valio
of the Drodertv talien.' add the damacres for the
use of thlsei'fcbrri the time of suing the
secae,' touj return tnereoi snail uo maao as
in other 14keioases.,ir f.,-
afainst the plaintiff and his, securities, that
to returri'the propertytt4ken, or pdy the value
solassesjri't"aad also'pay 'double trie damages
assessed ifor the detention of property.
4 140,u4fi H, officer is injured by reason
replevin, bv the direction of tho plaintiff, he
may nialntain' 'an action therefor upon tho
bond byhl-h.takeii. " : i
141s )Ittlha fdaintiff violato the condition
of thiSjboiful, iJm, defendant may sue thereon
jjgjmMr to the U9e of 8aid
' " ftU'.ii' the' office'r fail to take a bond of
tl plakAtfetT ad retUm 'the same an is re-cpkiAkm-Mi
j'artiale, xr 'if the bond taken
ba, adjudtad hsufnpsjwt,by the justice on the
perfeot.it, If required, 'the officer shall be
liable 0'' ttrtv'rhiuTed for1 all damnircs
suchMsoutioa.j-and the oraoer cannot fln
suffipient property ,9fifUoh'prinoipal to satis
fv the same, suoh execution shall be enfbr-
ced ''against the seour(ties. and the officer
shail specify in his return by whom the mo
nay.waiipaidjuid the time thereWj r i
ISO. After the return of an execution,
emiuea m a juogmeni, upon mown, ngwini
by him'sustajjtisd, A be recovered by action'
of debt antUie-affibeifsUotlicial bond, orby-
to not rneVe than osie 4'undied' and' fifty hi
lars, and nstlaialhaa five dbllahiay sue
their (isUoraatchment bfpre;,, juaco
mif lesldiigiuSm'the cun'ty. ' T '
Sexmd.i-2Vfbf the debtor has absconded
oj concealed himself, or.ab absented. hunself
fmib. WMffr . bpe,that,-i.ije.
dinmary process of law oannot,,be 8e,jry,ed up.
Oh him. ' "' cONTtrioEDToVoUETH PAdE.J