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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (April 16, 1846)
n .1 BY ABfWMtf. T 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. rvs'rtv claimed. '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 summon. 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 court. $ 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.. ... Oregon Spectator. -, rm m- m-Tty ni.if fc a" LmgrT-f , -, .h,i.ijit wwwwpi mmVm " -" - -g--em. PPW-PWPW es-usan ' "Vtwu& the Star of Etufire Uxm & way." f ul v .1 Hi IfH I Till Ortgoft Otty, (Orafti Tr.) TkmnUj, April 1, lttf, Mtvi. .: n.-.ii 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 cases. 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. ARTICLE IX. Of appeals and proceeding thereon in the county court. 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 same. $ 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 for cause. 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' paymtnt; suenmo I'H'ope ySar after the sjion. and the return '.-dence, upon hear- facts therein stated. togethe; snatian u? "ff&ii roiurn imy of the'oAc ingsvehssotioa 11. WksMveranr goods or chattels are wrotJiy.fswrotJfulIydetahiedtlic 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 pwp'the'ifefeofftiifficer, by'vir 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- '148.'kCrArsi?,dcmthdS amount 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 v: