sheriff to servs such summons or capias ten
days before the return day thereof, ho may
execute the same at any time before or on
the return day, but in such case the defen
dant or defendants, shall be entitled to a con.
tinuanoe, and shall not be compelled to plead
before the next succeeding term.
18. Whenever it shall appear by the re
turn of the sheriff that the defendant or de.
' fondants, are not found, the clerk shall, at the
request of the plaintiff, issue another sum.
mons or capias, (as the case may be,) and so
on, until servioe be had, and the defendant
or defendants b summoned, or brought into
court ; and if such summons or capias bo
served on any one or more, but not on all of
the defendants, tho plaintiff or plaintiffs,
shall be at liberty to proceed to trial and
judgment in the same manner as if the de.
fondants were in court, and any judgment so
obtained, shall be valid against the defcn.
dant or defendants on whom the process had
been served, and the plaintiff or plaintiffs
may, at any time afterwards, havo a sum.
mons in the nature of tdre facia against
the defendant or defendants, not served with
the first process as aforesaid, to cause him,
t her, or them, to appear in the said court and
' show cause why he, she, or they, should not
be made a party to such judgment, and the
court shall thereon proceed to hear and de.
termine the matter in the same manner as if
such defendant or defendants had been ori
ginally summoned and brought into court;
and such defendant or defendants shall also
be allowed the benefit of any payment which
may have been made on the judgment be.
fore recovered, and the judgment of the court
against the defendant or defendants in such
case shall be, that the plaintiff or plaintiffs
recover against such defendant or defen.
dants, together with the defendant in the for.
mer judgment, the amount of his debt, or
damages, as the case may be.
19. If any sheriff, to whom any summons
or capias shall be delivered, shall neglect or
refuse to make rotum of the samo before or
on the return day of such process, the plain,
tiff may enter a rule requiring said sheriff to
make return of such process, on a day tc u,
fixed by the court, or to show cause, on that
day, why he should not be attached for a con
tempt of opurt ; and the plaintiff shall there,
upon causo a written notice of such rale to
be served on such sheriff, and if good and suf
ficient cause be not Bhown to excuse such of.
ficer, the court shall adjudge him guilty of
contempt, and shall proceed to punish such
officer as in other cases of contempt.
20. If the plaintiff shall not file his de.
claration, together with a copy of tho instru
ment of writing, or account on which the ac
tion is brought, in case the same bo brought
on a written instrument or account, ten days
before the court at which the summons or
capias is made returnable, the court on mo
tion of the defendant shall continue the cause,
at the cost of the plaintiff, unless it shall ap
pear that the suit was commenced within ten
days of the sitting of the court, in which case
the cause shall Te continued without costs,
unless the parties shall agree to have a trial,
and if no declaration shall be filed ten days
before the second term of the court, the de.
fondant shall bo entitled to a judgment as in
case of non.suit.
21. The clerks of the county courts in
this territory shall keep a docket of all tho
causes pending in their respective courts, in
which snail be entered the names cf the par
ties, the cause of action, and the names of
the plaintiff's attorney, and he shall furnish
the judge and the bar at each term 'with a
copy of the same ; in which all indictments
and causes to which Oregon territory may
be a party, shall be first set down; after which
shall be set down, all cases in law, in order,
according to the date of their commencement,
and lastly, the suits in chancery ; and the
clerk shall also set and apportion the causes
for as many days of the term as he may think
necessary, or be directed by jhe judgeand
i all subpoenas for witnesses shall be made re.
turnable on the day on which the cause in
whioh the witnesses aro to be called, is set
for trial.
22. Tho f terk shall, from time to time,
iatue subpoenas for such witnesses as may
be required by either party, returnable on
the day for which the cause in which they
are required to attend is set for trial, and ev
ery clerk who shall refuse to do so, shall be
fined at the discretion of the court in any sum
not fnroeodinr one hundred dollars.
28, In all cases pending in any tounty
court of this territory, if both parties shall
agree, both matters of law and -fact may bo
tried by the court.
24. The several county courts shall have
power in any action ponding before them,
upon motion, and good and sufficient cause
shown, and reasonable notice thereof given,
to require the parties, or either of them, to
produce books or writing in their possession
or power, whioh contain evidence pertinent
to the issue; and it shall be the duty of the
defendant or defendants, in all cases whero
he, she, or they intond to prove on trial any
accounts or demands against the plaintiff or
plaintiffs, to file with his plea a bill of par
ticular items of such accounts or demands,
and no other accounts or demands shall be
suffered to bo proved to the jury, or court, on
that trial.
25. On tho appearance of tho defendant
or defendants, the court may allow such time
to plead as may be deemed reasonable and
necessary, and for want of appearance may
givo judgment by default on calling the
cause, except in cases where the process has
not .been served, or declaration filed, ten days
before the term of the court, but all the cau
ses shall be tried, or otherwise disposed of,
in the order they are placed on the docket,
unless the court, for good and sufficient cause,
shall otherwise direct. And whenever either
party shall apply for tho continuanco of a
causo on account of the absence of testimo
ny, the motion shall be grounded on the affi
davit of the party so applying, or his, her, or
their authorized agent, showing that due dili
gence has been used to obtain it, and also the
name and residence of the witness or witnes
ses, and what particular fact or facts the par
ty expects to prove by such witness or wit
nesses, and should the court be satisfied that
such evidence would not be material on the
trial of the cause, or if the opposite party
will admit the fact or facts stated in the af
fidavit, the cause shall not be continued.
20. The defendant may plead as many
matters of fact in several pleas as he may
deem necessary for his defence, or may plead
the general issue, and give notice in writing
under the same, of the special matters inten
ded to be relisd on for a defence on the trial,
under which notice, if adjudged by the court
to be sufficiently clear and explicit, the de
fendant shall bo permitted to give evidence
of the facts therein stated, as if the same had
been especially pleaded, and issue taken
thereon; but no person shell be permitted to
deny on trial the execution of any instru
ment in writing, whether sealed or not, up
on which any action may have been brought,
or which shall be pleaded or set up, by way
of defence or set-off, unless the person so de
nying the same shall, if defendant verify his
plea oy affidavit, and if plaintiff shall file his
or her affidavit denying the execution of such
instrument: Provided, If the party making
such denial be prosecuting, or sued as execu
tor or administrator, it shall be sufficient to
stato in such affidavit the belief of the party
making the same, according to his or her
best knowledge, that such instrument wax
not executed by tho testator or intestate.
27. Whenever judgment shall be given
against the defendant or defendants by de
fault in any action brought on any instru
ment of writing for the payment of money
only, the court may direct the clerk to assess
the damages by computing the interest and
principal, and report tho samo to the court,
upon which final judgment shall be given;
and in all other actions, when judgment shall
go by default, the plaintiff may have his dam
ages assessed by the jury in court.
28. The court may, in its discretion, be
fore final judgment, set aside any default
upon good and sufficient cause, upon affida
vit, upon suoh terms and conditions as shall
be deemed reasonable : Provided, That no
judgment by default shall bo set aside, un
less the motion is made ai the term said judg
ment was rendered.
'29. All affidavits made in court during
tho progress of any cause and! relating there,
to, shall be filod and preserved by the clerk.
30. In actions brought on penal bonds,
conditioned for the performance of covenants,
tho plaintiff may assign in his declaration as
many breaches as he may think fit, and the
jury, whether on the trial of the issue, or
of inquiry, shall assess the damages for so
many breaches as the plaintiff shall prove,
and tho judgment for the penalty shall stand
as a security for such other breaches as may
afterwards-happen; and the plaintiff may, at
any time afterwards, sue out a writ of in.
quiry to assess damages' for the breach of
any covenant or covenants, contained in such
bond subsequent to such trial or inquiry; and
whenever exeoution shall bo issued on such
judgment, the clerk shall endorse thereon the
amount of the damages assessed by the jury,
with the costs of suit, and the sheriff shall
only collect the amount so endorsed : Provi
ded, That, in nil cases whore a writ of in
quiry of damages shall be issued for any such
breaches subsequent to tho first trial or in
quiry, the defendant or his agent or attorney,
shall have at least ten days notico in writing
of the time of executing tho samo.
31. The defendant or defendants, in any
action brought upon any contract or agree
ment, either express or implied, having claims
or demands against the plaintiff in such ac
tions, may plead the same or givo notice there
of under the general issue, as is provided in
tho twenty-sixth section in this article, or un
der tho plea of payment, and tho same or
such part thereof as the defendant shall provo
on trial, shall bo set off and allowed against
tho plaintiff's demand, and a verdict shall bo
given for tho balance due; and if it shall ap
pear that the plaintiff be indebted to tho do.
fendant the jury shall find a verdict for the
defendant, and certify to the court the amount
so found, and the court shall give judgments
in favor of such defendant for tho nmount so.
certified, with costs of his defence, and exe
cution shall be issued on such judgment, as
in other cases.
32. In all civil actions each party shall
bo entitled to a challenge of three jurors with
out jshowing causo for such challenge, and
when the jury retire to consider of their ver
dict, they shall be permitted to take any pa
pers that may have been used as evidence on
the trial. And no plaintiff shall suffer a non
suit on tho trial, unless he do so before the
jury retire from the bar.
33. If, during the progress of the trial in
any civil cause, cither party shall alledgo un
exception to the opinions of the court, and re
duce the same to writing, it shall bo the duty
of the judge to allow tho said exceptions, and
to sign jnd seal, the ttame, and the said bill
of exceptions shall thereupon become a part
of the record of such cause ; and if any
judge of county court shall refuse to allow
or sign such bill of exceptions tendered, and
the came is signed by three or more disinter
ested by-stanucrs, or attorneys of said court,
the judge shall then permit the said bill to bo
filed and become a part of tho record; if the
judge refuse, the supreme court of thistcrri
tory may, when such cause is brought be
fore said court, by writ of error or appeal,
uponproper affidavit of such refusal, admit
such bill of exceptions as a part of tho record.
34. It shall be sufficient for tho jury to
pronounce their verdict in open court, with
out reducing tho same to writing, and the
clerk shall enter the same in form under the
direction of tho court, and if cither party may
wish to except to the verdict, or for other cau
ses to move a new trial, or in arrest of judg.
ment, ho shall, before final judgment be en
tered, give, by himself or counsel, to the oppo
site party or his counsel, tho points in writing,
particularly specifying tho grounds of such
motion, and snalhalso furnish the judgo with
a copy of the same, and final judgment shall
thereupon be stayed until such motion can
be heard by tho court; but no more than two
new trials shall bo granted to tho same par
ty in the same causo, nor shall any verdict
or judgment be set aside for irregularity only,
.unless cause be shown for the same during
the sitting of the court, at the term such
judgment or verdict shall bo given.
35. Whenever an entire vordiqt shall be
riven on several counts, the samo shall not
be set aside or reversed if any ono or more of
the counts bo good.
36. In cases of attachment against absont
or absconding debtors, the attaching creditor
shall, within ten days after the issuing such
writ of attachment, and before the rotum day
thereof, filo a declaration in the omof tho
clerk of tho court of the proper county) with
a copy of the instrument, or account, on
which the attachment was issued, as in oth
er cases ; after which the cause shall pro.
ceed as in other cases, and if no declaration
shall bo filed, the defendant, on entering his
appearance, shall have a judgment against
the attaching creditor for costs.
37. Any person for a debt bona fide due,
may confess judgment by himself, or attor
ney duly authorized, without process, and
every confession of judgment, whether with
or without process, shah operate as a release
of errors on the entering up of the judgment
or making record thereof; and in no case,
oxcopt when tho titlo of land shall oomo in
question, shall it be necessary for tho clerk
to make a completo record, unless especial
ly requested by one of the parties, who shall
pay tho costs of such record.
38. Whero judgment shall lie arrested
for any defect in the record of proceedings,
after the first process, tho plaintiff shall not
io compelled to oommeiico his action anew,
hut tho court- shall order now ploadliiirs to
commence with tho error that caused the"
To be continued.
rc3t.
Bmuim IL !1U.
To Nherllls,
Election Notice.
Judge of
Clerks, and
Election.
At the general election, to bo held in Ore.
goii on the first Monday in June, 18411, tho
following territorial nid county officers aro
to ho elected :
Territorial Officers. One Colonel, one
Lieut. Colonel, ami one Major.
Countv Opfickrs. For each county, ono
Treasurer, ono Sheriff, and one Assessor.
Ubprkskntativks. For tho county of Clat
sod one: for the county of Lewis one, for thV
! county of Vancouver one; for the county of
"Clackamas three ;( for the county of Chum-
jwog four; for thu-county ol 1 ualaty, three;
for tho county of Vain Hill two; for tho coun
ty of Polk ttco.
The judges of election at tho several pre
ciucts, are required to open a poll, to tuko
tho sense of the eoplo whether tho fudges
of county courts shall in future le elected
by tho house of representatives or by tho
people.
The following proosod amendments to the
laud law, published in the first number of
tlic " Spcctator,"are to be read publicly at
the polls, viz : " htriko out in tho lourth sec.
tionol'said law, the words "or more."
Also, to " permit claimants to hold six hun
dred acres in tho prairie, unit forty acres in
the timber, though said tracts do not join."
The clerks of the several county courts
arc required to make out and deliver to tho
sheriffs of their rescctivc counties, three
copies for each precinct, of the following no.
tice, which it is the duty of the sheriffs to
post up; one at the house where the election
is to be held, and the two others ut suitable
places in the neighborhood.
WrbTICB U hereby given, that on the firt Mwi-
1 )iay, Uie day of Juue next, 184Gal tho
houae'of , in the county of , an election will
be held foMerritorial and county officer, (naming thn
officer,) which election will be opened at nine o'clock
in the morning, and continue open until ins o'clock in
the afternoon of the aame day. Dated at , thw
day of i , A. I)., 184G. (Signed) A. II.
Clerk of Court.
The judges of election uppointcd in 184-r,
will hold their offices, and jwrform the duties
of the same, until others aro appointed. Va
cancies occasioned by any judgo refusing to
act, can be filled by any justice in the coun
ty, or by the other judgo or judges of elec
tion; and if there be no judge present at tho
place of voting, then the voters present can
elect their judges, and the judges can up
point their clerks, and both clorks and judg.
es, before voting commences, must take tho
following outh :
I, A. I)., do aolcmnly iwear, or affirm, (oa the cam
may be,) that I will perform the duties of judge, (or
clerk,) of the election according to law, and the bent
of my ability ; that I will tudiouily endeavor to pre
vent fraud, deceit, and abuae, in conducting the Mine.
Which oath tho judges and clorks may ad
minister to each other, in case there is no per.
son present authorized to administer oatiis.
Vho judges may, if necessary, postpone tho
closing of the polls until 9 o'clock at night.
The clerks of county courts are required
to provide two poll books for each precinct
in their respective counties; and at the closo
of tho x)lls, one of them is to be sent sealed
to the clerk of the county court of tho propor
county; the other to be deposited widfcono of
the judges of election.
On the seventh day after tho close of tho
election, or soonor if all the returns be re.
ceived, tho county clerk, taking to his assis
tance two justices of the peace of his county,
shall proceed to open the returns; make a cor
rect abstract therefrom, and givo a certificate'
to persons having the highest number of votes
for members of tho. house of representatives,
and county officers respectively, and forward
a copy of said abstract immediately to tho
secretary of the territory.
J. E. LONG,
Dated Secretary.
Sinumav'sOrncs, April 17, 1846.
1
i