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About Oregon spectator. (Oregon City, O.T. [i.e. Or.]) 1846-1855 | View Entire Issue (June 24, 1847)
trearse m m hictatui.)
The folloWin tH abstract ol the prinoU
file settled, end-ef tho point of law deci
ded by the Hororablo J. Qvinn Thornton,
Judge of the Supremo Court, at the June
1. bin action of forcible entry and de
lainer, the plaintiff mart alledge in hl com
plaint that he possssscd the premises, and that
tie defeosant divested him or their posses
sion. Henry Hill, PlalnUf V errror vs.
2. Under the Ioway Law, mado the law
of Oragon Territory, entitled "An act to
prevent ferelble entry and detainer," approv
ed Jan. 36th. 1889, (Laws of Ioway p. 817)
and which ia aubttantially a re-enactment of
the atatute of 8 lien. VI c. 9, the verdict of
the jury must be ubscnbed by all of them.
ft. The action which Uiia Act authorize
doea not propose to try title, but only the right
of possession ; and it issustained in those
cases only where the plaintiff had possess
4. The omission of a plaintiff to alledge
in his complaint that he possessed the prem.
ises, and that the defendant divested him of
their possessfon, will not be cured by the
Statute of Amendments and Jeofails. Ibid.
5. A cause whjch stands continued at ,a
ref uJaf termothe Coaatf Court canaot U
takes) up and tried at a special term. Gil
bert Mmien, Plaintif, in error? vs. James
McOinnis, Defendant in error.
0. The Act (Spec. Vol. I No. 7, p. 1,
Sec. 9,) providing for a special term contcm
.plates county business in contradistinction to
civil suits between party and party. Ibid.
7. The Act regulating the taking of dep
ositions, must be so construed as to give tho
party seeking to obtain testimony in this man
ner, a continuance of the cause sufficiently
remote to admit of his giving his adversary
at least tea days notice, andooe day addition
al (Sabbaths included) for every thirty miles
of distance to the place, and a reasonable,
time in addition, and having in vicar the tar.
dinets of coounuiiioation fcr sending the
deiimuM foUttatemnai fcr the return of the
depoaltioM, allowing far the latter at the
Jen one dcyan.s self JhtaviaUat ef dia
tance. Henry B. Bremer, PUinbf in error,
vi. boat Rutehku, Defendant in error.
8. If a plaintiff appeal and do not recov.
era greater sum in the Court above, than in
the Court below, exclusive of cost and in
terest whloh have accrued after the rendition
of the judgment in the Court below, tho Court
above will reader a judgment against him
for the cost aeoruiiur in that Court ; and if
the defendant appeal in any personal action
and the plaintiff recovers the same or a larg
it sum than was recovered ia the Court be;
low, exclusive of costs, the Court above will
render a judgment for the sum so recovered
with costs; so also if the defendant appeals
andjhe judgment below is diminished, tho
costaofAaeppeal must fall upon tho plain
tiff belbw. Oid.)
9. An aocounf upon which a summons
waa issued bye, JkP. r.hargtng the defendant
"To one yoke of oxen," without any dato
excepting that of the year? and without any
thing further thnt would show whether the
defendant is sue'l in an action of assumpsit
for oxen sold and delivered, for a malicious
trespass, or as a bailee, is not such a state
inont of "the nature of toe, depiand" as the
law requires in order tin the defendant may
bo propared for his defence. Odd.
10. A variance between tho judgment
and the declaration, or the account which
htands in Uio place of a declaration, is error.
11. Upon a joinder in error being filed by
the counsel tor tho defondant in error, and
tho cause being set down for aVgumont ujoiv
an agreed day, tho defendant's counsel wilt
not have leave to wunaraw nisjmnaor lormo
purposo of enabling him to assail his advor
nary from a point overlooked through inad
vortanoe or want of skill. A. L. umejoy,
Administrator of the tilate of Ewing Young,
deceased, vs. David Waldo, surviving partner
of the late firm Jf Jackson Sr Waldo.
13. A failure to mako a just application
of the rules which relato to the persons who
tiro to be the parties to the action, are in gen
oral so fatal to the further prosecution of tho
milt, that the plaintiff ia usually compolled
to proceed de novo. -Ibid.
13. Actions to be properly brought, must
bo commenced and prosecuted in the proper
Christian and Sir panics os'tho parties,- JWd,
fJa-U fal. ,. :. I 1
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' 14. The books furnish no exaayla of an
omission of both the ChrisUaa aaiSirnaaisB
of either of the parties being cured byalaad
log over, intendment after verdiat, or ay the
Sutute of Amendments and Jeofails,: flii.
15. The Supreme Court poasssaia a au
perintending control over all inferior Juris
dictions; and it only has the power to lasaa
writs of habeas corpus, qua warranto; mmimn.
us and certiorari, and to hear and datarav
ins the same. Stop H. L. Meek vs. Rich.
It is believed that the importance of the
points adjudicated in the case of JSeary M.
Knighton, Plaimiif in error, vs. Hugh Buns,
Defendant in error, make it expediaat that
not only the head notes of that case be pub
lished, but that opinion at large be given to
the puWfj'la oraar 'aWliw'ouwaaaalt 1 -mif !
see the reasoas upon which the decisions ia
that case are made to rest.
1. The prohibitory clause contained in
tho Organic Law Art. I. Sec. 3, is taken
in the substance of its provisions, from the
Constitution of U. S. prohibiting the passage
of laws impairing the obligation of contracts.
3. Any deviation from the terms of a con
tract, impairs it ; and the objection to a law
on the ground of its impairing the obligation
of contracts, can never depend upon the ex
tent of the change which the law affects
in it. t ,
8. While the remedy to enforce the oblU
ration of a contract may be modified, yet
the obligation of the contract itself k invkv
4. Any construction of the Act of Dee,
IS, 1846, entitle "An vot relative tefcjt
Cfcrramaaad saR - nan arsissty ta
Hon," which "Jald adaut of scrip oonstitu;
ting the bar-U of a legal tender, impairs the
obligatio'.of a contract.
8. r'arties ate presumed to contract with
reference to the existing laws.
0. Independently of the Organic Law,
it is a general rule, subjeot however to ex
ceptions, that statutes shall havo a prospect
7. The prohibition extends to all rights
aaoruing under all contracts, whether writ.
tsni or parol, whether expressed or implied,
whether arbing from the stipulations of the
parties or accruing by operation of law.
HiNar M. KNiotrroif, Phuntif in error,
Hush Busks, Defendant in error.
ERROR TO THE CLACKAMAS CIRCUIT COURT.
Oratioif at Laxge.
Per Curiam. This cause came up 'from
the Circuit Court, upon a statement of facts
presented in a bill of exceptions. On the
4th November 1845, the defendant executed
to tho plaintiff a note for 150, payable
November 1st 1640. Suit was brought upon
tbisnoto before a J. P. wjiere judgment was
rendered against the maker, from which an
appeal was taken to the Clackamas Circuit
Court. This Court rendered a judgment
against defendant for 140 43 payable in
currency, scrip excepted, together with costs.
On tho trial of tho cause at the April term
1847, the defendant to maintain the issue on
his part, proved that ho had tendered to the
1'. beforo wnom the trial was originally
had. the full amount of tho debt, interest and
cost up to tho filing of the plna of tender, in
Oregon Scrip to the amount specified in the
plea of tender. The dofendant also tender
ed in tho Circuit Court tho full amount in
Oregon Scrip. Tho plaintiff objected to ro
ociving the scrip in payment of the dobt, in
terest and cost, which objection was sustain
ed hy tho Court.
Tho Organic Law Art. I. Sec 3, dcolarea
"that no law ought to be made, or have force
in said Territory, that shall, in any manner
whatever, interfere with or affect private con
tracts or engagements, bona fide and without
fraud previously rormed." xnts is a prow
bition of great moment, affecting extensive
ly the authority of the legislative branch of
j no established government ' it li tagon ya
taa,sjheteaeo of In nrntlskns frpmim Can.
JntJaasyth;u; in which there ie ne
fwohihnory. oUues, which has given arie, to
more varloas and aWe discussion, or , mora
ss).. xae nrst inmortaat
the clause aa found in that
(6 Cnuwh. 87.) In that case it was ieoi
aad that when a law was in iU aatnra a eaa.
tract, aad absoiuu rights have vested ,aaear'
that contraet,,a repeal 0 Uvit'law aoaH
net alvast thaw rights. The Supreme Court
want atata, anff ' more largely, into tlnt'con-
aaJaration of this delicate and mterestiatT
rnnexnwntardootrine, in the case of ttrrnf
vs. Aafor.YtCraoch. 4S.) It was there
hehf. that a lerWative -grant,
asaaa, rested an iiiiliinMansis and'
timi S k wm taltoreat eaaof
mfntCottegeifs. Weodmard, (4 Wheatori,
M,) thai the inhibition to impair by law the
oahgation of contracts, received the most
etaasrate discussion. In that case the prin
eialss previously recognined were not only
grsntly elaborated, but efficiently and in
attentively applied to new cases. The lato
vsaeratedaoii learned Judge Story, added
many new and interestkig views of the na
ture of contraots whloh the Constitution in
taided to protect. The argument of the
Gnart in thtaaalebtated case; the fall and
eHhorate ecposfnan of the oonstitatienal
sanetky of contracts to be, met with' in' any
ef ae reoorts:' aad the deeiaioa made k it
dM,anea,b threw' aa iaaaasabU barrier
asaaad all vihr s fraaeaisas; aad to
again nnder dficiusion in tbe.oase.of Oram
rs.Biddle. ( 8 Wheaton. 1.) in whiah It waa
decided that nay deviation from the terma of,
a contract impaired it, aad that the objeetiott
to a law on the ground of its impairing the
obligation of contracts, could never depend
upon the extent of the change which the law
effects in it.
In the case of Sturges vs. Crowninshisld,
( 4 Wheaton, 133,) the operation and effect
of this constitutional prohibition was again
exteasirely enquired into. That was a case
which arose out of he retrospective oaara
tion of an Act the Legislature of, New York
passed in April 1811, by which the defendant
had been discharged at an insolvent debtor
upon his single natkion, from the. obligation
to pair two promissory notes executed by him
in March of the' same year, and upon bis
surrendering: his property, without the con
currence ofany creditor.
In the opinion delivered by the late Chief
justice marsnaii, a oroaa ana wen aennea
distinction waa made between the contract
and the remedy for the enforcement of that
contract ; and the Court held that while the
remedy to enforce the obligation of aeon
tract might be tnodinedaa the wisdom of the
legislature should direct,' yet that the Const!,
tutioh intended to restore and preserve public
confidence completely, by establishing the
great principle "that the obligation or con
tracts should be inviolable. And all expe
rience, even if this had been necessary to a
correct understanding of the subject, hath
shown that the framers of the Constitution
acted wisely in incorporating this prohibito
ry cjause in that saorcu instrument, and that
ita expounders merit the gratitude of the na
tion for having had the firmness to give to it
such a construction aa affords an ample rem
edy for the consequences whioh must other-
wise result from the temporary expedients or
legislators. The Suprenw' Court admitted
in this ease, that the States might by law'disl
oharge debtors from imprisonment, and that
they 'might pass statutes of limitation, be
ceM these relate only to the remedy, affect
innnpnly the means of coercion, while the ob
ligation ef the aentraot hi left -where the oar.
tils eaeas to alaoe it. But'a law which die-'
charged the debtor from his contract to pay
ansbrnaad in thnt nassVhsl
fhl tanner whiah' wan nat
the partiea at the hanVief -'ftnt
ne. 4, I8ae Tnai
Ken. 383 j
997, took 1
did not I
money, did not 1
any part of the legal 1
try, nor did it do no nnautBanw.nanapn.i
month after the data nf Mil iRianMsW inane
note. But the ff ne tmmiotlm.nhmo.!
States in JicWttm wtMcNafM, 4 Whiaani;
200, carried thk.iaslsmnnh fihafnid
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f assa mnnmmBftanBpamjOMjnjanwaftanjjaBmiTnnm j
aW IfWnRfepr nsrvwnW aawnv nasFffw enranV fBSsMnwwSfavnfVsW
impaired the eblanaHen af.a iisasnil; Aa
tne ocistonjenr atanoYJM.ebVl
. . i ' -' "
cMsMt Un JlaWnM
Act, nwafe saB I
taelew of r
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w v - i fluff fts'.n jir j.
The Sasnaii Cwjit af iHasanav iai
as. Jbasansrtfas. IananlnaBnsVBkiBs'
following the current af Mnh:niJai
that this constitutional arVrhnanisiaat -snVinmV
aidered aa Tmdofarte'najwe'imk
ia retrosoectiveJaiJ wWoh ilaaUuTa gaanal
Wh, -m--.t--.--f. ... -.-T-...'.l---.t1u ..TTm,
that the legWaUve power of refnlatinef 'the1
time and manner, in wlakh" 'riglsay anW t
be legally (ietnanded, doas-narWifai'--with
the rightsthemsslTas: -fr wstfslsnhehf 7
independently of the Caeilejiliis.toW a
general rule, snMset sMWratar'te' siaif HehV, '
that statutes shsJl-hava a iaaiione sAnti' (
tion only. The'
therefore, that a kw snisihisM tn easja-
tioq of oontraote abaM eTef'Wnsnni'asJMnjn'
to all righto accrsanf nadar 'all; ansjainV
whether written or parol; wlnNier sjsjMsnnt
or implied, whether ailsiag fhim,nninnsaw '
tion of the parties, or aocrning s-sfnannlan'.
of law. Pereons,theifera, wtoeantraatta
pay a given sum in eases waN be aeaaJraV ta
make payment, ia oash;''andanBnM2ha :
contract to pay in a named astt af ilsndaar'
property willbehehi aha mill in at af assir
aa amount equal 4n vnlaa tonWinidnarf
property contracted to be paid. 1 fsneidi Kenfu
Com. 418 481. xrtte5Jaiwiift.::
I, f .1 -m. .1 iLlft..1. .j. -.
ir is ciear inereiore, taw aamfj
was bad; and that payment asm
lyin that whiah might; hava been.
tendered in payment of aaataNar. 4.
Mm .. f ivtvr-r:
j nagmeni 01 uoun oeiow aaui
BUXMBTT OC LOTKJOT,AtlV
i - .V (. ...
Tn aiT:ii. -r
Tux But Axacoon, Ynr. In the maaA .
old North State, agaatlesnan aan,hiaaoMi.
school at an instUtuiqa sitnawd on ,TaliaK
ed his son put IIThalattolmhkli1sal5anai
that ne didn't oare a d n wliH Vanoaaaha
,or M a?vyaniw5tnto(Bfft g
. CorA,r.-Thers 1. a oarto,
WArm in enrnMn. t ,iME3EZl&
mike you like to them by muoh eaanasmwi '
s ireu mwmam 10 mane
m you in goodness; but 1