RULES

ADOPTED AT THE

Supreme Court of Oregon Territory,

At the December Term, 1852.

1. ATTORNEYS and counsellors at law, and solicitors in chancery, of the several District Courts of this territory, shall, on notice in open court, be admitted to practice in the Supreme Court; but all the preliminary steps necessary to bring a cause to this court, and prepare the same for trial, may be taken by any attorney, solicitor or counsellor of any of the District Courts.

2. The attorneys and guardians ad litem of the several parties in the court below, shall be deemed the attorneys and guardians of the same parties in this court until others shall be retained, or appointed, and the appointments placed on file, and notice thereof served on the adverse party, or his attorney.

3. No private agreement, or consent, between the parties, or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered with the clerk; or, unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel.

4. If the party applying for the writ of error or appeal is a minor, and no next friend or guardian has been appointed for him in the court below, the court, or any of the justices

of this court in vacation, shall, upon a petition duly verified, appoint some suitable person as a next friend for such minor, who shall be liable for the costs in this court; which said petition and appointment shall be filed with the clerk of this court.

5. The clerk of this court may, upon application and payment of his fees, issue blank writs of error under the seal of the court; which writs, when suitably filled up and subscribed by an attorney of this, or of a District Court, shall be effectual to bring up all causes properly removable to this court; and it shall be the duty of the clerk of any District Court, immediately upon being served with a writ of error, and upon being paid his legal charges, to note upon the back of said writ the date of its receipt, and to make up a complete transcript of his record of the process, pleadings, orders, proceedings and judgment in the cause, in the order in which they occurred; and after certifying the same, under his hand and seal of office, to return the same to the clerk of this court, by mail, postage paid, or by some other safe mode of convey

ance.

6. The clerk of a District Court, returning the transcript of a record to this court, pursuant to an appeal, or in obedience to a writ of error, shall distinctly number and mark each folio in the margin thereof. Each folio shall be deemed to consist of one hundred words. Such transcript shall be fairly and legibly written; otherwise, the clerk of this court shall not file the same, but shall return it to the clerk transmitting it, with a statement of the reason why it is not received and filed.

7. A printed or legibly written copy of Rules Nos. 5 and 6 shall be attached to, and accompany each writ of error issued by the clerk of the Supreme Court; for which he shall be allowed the sum of fifty cents.

8. In all cases where the defendant in error resides out of the territory, and has no attorney therein, the plaintiff in

error shall cause publication of the cause to be made in some weekly newspaper, printed in the territory, for four consecutive weeks; the last insertion of which notice shall be at least four months prior to the first day of the term of the Supreme Court at which said cause is set for trial; and in all cases where it shall be practicable so to do, it shall be the duty of the said plaintiff to ascertain the residence of the said defendant; and, immediately after the first publication of the notice, send by mail a certified copy of said notice, directed to him at said place of residence, postage paid. If sufficient time shall not have elapsed for the publication, as aforesaid, of said notice, prior to the first day of the term, and subsequent to the filing of the writ of error with the clerk of the District Court, then such cause shall stand continued until the next term of the Supreme Court, unless the defendant shall voluntarily enter his appearance at said first term. Provided, It shall be discretionary with either of the justices of the Supreme Court, upon application, to direct in writing, to be placed upon the files of this court, such other mode of publication as may to them seem proper in the particular

case.

9. In all causes coming up on a writ of error, errors shall be assigned, and a copy thereof furnished to the adverse party, or his attorney, if in attendance upon the court, by twelve o'clock on the first day of the term; and if the party shall fail to comply with this rule, the judgment of the court below shall be affirmed, or the cause continued at the costs of the plaintiff in error, or his attorney, as the court shall direct.

10. The defendant shall file his pleadings by four o'clock in the afternoon of the first day of the term, and furnish a copy thereof to the adverse party, or his attorney, if in attendance upon the court; and, in case he shall fail to comply with this rule, the judgment of the court below shall be reversed, or the cause continued, at the costs of the defendant, or his attorney, as the court shall direct. Provided, The plaintiff shall have complied with Rule No. 9.

11. Assignments of error shall be specific, and no error will be noticed by the court that is not specifically assigned, unless, for good and sufficient reasons, the court shall otherwise determine.

12. Whenever error in fact shall be assigned, the pleadings shall be accompanied by an affidavit of the party, or of some person cognizant of the matters therein set forth, that it is true in substance and in fact; otherwise the court, on motion of the opposite party, will strike the pleadings from the files of the court. Whenever an issue of fact is made up, the court may send the case down for trial to the District Court, in which the judgment was rendered, unless it shall otherwise direct.

13. Before the cause is called on for trial, the counsel for the affirmative shall furnish the opposite counsel a note of the points made and authorities cited, with an abstract of the argument; after receiving which, a like note of points and authorities, with an abstract of the argument in answer, shall be furnished to the affirmative counsel; and in all cases before the argument is commenced, the counsel, holding the affirmative, shall furnish each of the judges with an abstract of the case, and a brief of the points and authorities relied upon, printed or written in a legible hand; and the opposing counsel shall furnish a like brief of the points and authorities relied upon on the negative; for which the sum of twenty-five cents per folio shall be allowed to the respective parties, to be taxed in the bill of costs.

14. Within twenty days of the commencement of any term of the court, the clerk shall make up a docket of the causes brought up to this court by appeal or writ of error, and shall arrange the causes thereon in the order of time in which the appeal was completed, or writ of error filed with the clerk of the court below, and he shall specify in said docket the respective counties from which the causes were removed. He shall also make out a copy of the docket for each of the justices of the court.

15. In all cases where, under the law or rules of court, a written notice is required to be served on the adverse party, such notice may be served by some sheriff or deputy sheriff; or, if the case shall belong to the United States side of this court, then by the marshal or his deputy; and the return of such officer, that he has served an attested copy of such notice, shall be sufficient proof of such service. The party himself, or any other competent person, may make service of a copy of said notice, and the affidavit of the party making the service shall be sufficient prima facie evidence of the same. In all cases such proof shall be filed with the clerk on the first day of the term; provided, that in all cases not otherwise specially provided for by law, the agreement of the parties, or their attorneys, in writing, shall answer in the place of notice.

16. Motions shall be noted for the second day of the term, or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made, and the notice shall not be for a later day, except when otherwise allowed by law, unless sufficient cause be shown and contained in the affidavits, or papers served, for not giving notice for the second day. The moving party shall give at least one day's notice of all motions, except when, from absence or other cause, service of notice cannot be made, when depositing the papers with the clerk of the court shall be sufficient.

17. In all causes where the judgment of the District Court is affirmed, interest at the rate of six per cent. per annum shall be computed on said judgment up to the time of the rendition of judgment in this court, and shall be included therein, and the party shall be authorized to collect interest at the same rate on the judgment of this court until the same is satisfied, and this shall in all cases be exclusive of the statutory damages, if any, for the delay.

18. In all cases, not otherwise specially provided for, where judgment may have been, or shall be rendered in this court,