Simonds v. Lee. Illinois, had not left the claim in the possession of Carroll. No one, by proxy, can make or continue such a residence upon the public lands of Oregon as the donation act contemplates, and therefore the possession of Carroll could have been of no avail to Simonds, as against third persons. Notwithstanding Carroll obtained the possession of this claim as agent, he could not hold it in that capacity, so as to make his possession in law answer for the possession of Simonds. Carroll's possession was his own to all intents and purposes, or it was no possession at all. Simonds transferred the possession of the land in question to Carroll in the spring of 1850. In the fall of the same year, Carroll sold and transferred the possession to Lee, so that Lee was not a disseizor, but a regular successor to Simonds in possession of the premises; but it is said that Carroll was guilty of a breach of trust in selling the claim to Lee. Whether this be so or not, Lee, it seems, found Carroll in the actual possession of the claim, and for aught that appears, purchased it in good faith; and having so purchased, he took the possession which Carroll received from Simonds, and holds it unaffected by any dispute between the two, as to their duties and obligations to each other. Objection is made to the jurisdiction of the court in this matter, on the ground that it is a case of conflict of boundaries, and, pursuant to section six of the donation act, should be determined by the surveyor-general. One illustration will suffice to show the correct view of this question: A. and B. have adjoining claims, and a dispute as to the boundary line between them. Proceedings for the sole purpose of settling this dispute, while the land claimed by both is in common, must be had before the surveyor-general, and are not cognizable in the first instance by the courts. But if A. attempts to appropriate the disputed tract to his own exclusive use by enclosure, or otherwise, then B. may invoke the aid of the courts to maintain and defend his possession, and in the same way A. may protect himself against B. Such a procedure may incidentally involve a decision as to boundary; but the courts, from the necessity of the case, must have this VOL. I. 11 Simonds v. Lee. power, otherwise the occupant of a claim might run his pretended boundaries around a neighbor's land, and thus obtain its use for years. This point is more fully discussed in the case of Woodsides v. Rickey, decided at this term. Objection is also made to Lee's right of recovery, on the ground that his claim is not in a "compact form." Courts will not undertake to say whether a claim is in a compact form, or not, so as to change, or curtail possession, but leave that question to the exclusive jurisdiction of the land office. Compact form is a relative, and not an absolute requirement, for a claim taken under certain circumstances might be compact in form, and be entirely different in shape from a claim taken under other and different circumstances. Courts will not anticipate the government in deciding a question of this kind. Somers, it appears, claims the land lying between the house of Lee and the tract in dispute, and that contest, it is said, is still pending before the surveyor-general. Somers tried to dispossess Lee of the said lands by an action of forcible entry and detainer, and was defeated, and the record of that suit is in evidence here; so that thus far it seems Lee is in possession of the land in dispute between him and Somers, and has a right to the exclusive possession of the land in dispute between him and Simonds. Judgment for plaintiff. CASES ARGUED AND DETERMINED IN THE Supreme Court of the United States, FOR THE TERRITORY OF OREGON, June Term, A. D. 1855. WILLIAM T. NEWBY, et al., Plaintiffs in Error, v. TERRITORY Error to Yamhill, and Petition for New Trial. 1. A party cannot apply for a new trial in the District Court, and, being there OLNEY, J. The petitioners having been convicted, in the District Court of Yamhill County, of the crime of riot, have applied to this court, in pursuance of the statute, for a new trial. They allege that the jury misunderstood the instructions of the court, and they produce the affidavits of several of the jurors of that fact. If jurors could be allowed to impeach their verdict by such affidavits, and if this jury mistook their instructions, and even if the instructions were erroneous, still 1 163 2 336 Newby v. Territory. we are satisfied that the verdict is correct upon the evidence, and ought not, therefore, to be set aside. The record does not show the objection that a new trial was applied for in the District Court. We are not prepared to say that a second application could not be made under proper circumstances; but the two courts have concurrent jurisdiction to grant new trials; and a party cannot be allowed to experiment first in the one court and then in the other, for the same cause, or for any cause of which he might, by due diligence, have availed himself on the first application. We shall not, at this time, establish the rule, that under no circumstances will such affidavits, as are offered in support of this petition, be received. They have been received in some courts, and rejected in others; and a majority of this court would reject them, as at present advised, were it not that the case can be disposed of on other grounds, in which all of us fully concur. Kelly & Chinn, for plaintiffs in error. N. Huber, for defendant in error. Petition denied. WILLIAMS, C. J. Plaintiffs in error, who were convicted in the court below of a riot, or unlawful assembly, in whipping one Miller, make a question here as to the correctness of the following instructions, given to the jury by the judge presiding at the trial: "That if the defendants, or any of them, and others to the number of three or more, assembled with an intent to whip Miller, or have it done by the company, so many of the defendants as were there, consenting to it, were guilty." Objection is made to this exposition of the law, because it is too broad and general in its terms, and might involve the casual spectator of an affray in punishment with those perpetrating the crime. There seems to be no force in the Newby v. Territory. argument, for the question of intent was fairly submitted to the jury by the District Court; and the evidence must have satisfied them, that the persons convicted assembled not from curiosity, or by accident, but with the "intent" to do the unlawful act. Now, if plaintiffs in error, or any of them, assembled to whip Miller, or to have it done, they were guilty, though some other person may have inflicted the blows; for their object, at least, was to aid and abet in the commission of the offence. Few riots occur in which all concerned do acts of violence, for, while some perform the work, others keep company to assist, if necessary, and by their presence deter opposition; thus directly co-operating in the consummation of the crime. We see no danger to the innocent from the operation of the law, as laid down by the court below, for it would be impossible for one person to meet others under the circumstances, and with the intent specified in the instructions, and, at the same time, be innocent. Several sections of the act under which plaintiffs in error were indicted, (Statutes of Oregon, page 204,) describe the duties and powers of peace officers in case of a riot; and it has been contended that a proclamation by such an officer to such an assemblage of persons to disperse, must be made before such assemblage would become unlawful or riotous. Section first of the act provides, that "If any persons, to the number of three or more, whether armed or not, shall be unlawfully, riotously, or tumultuously assembled in any city, town or county, it shall be the duty of the mayor, sheriffs and constables," &c. Sections 234-5-6 consist of directions to these officers. Section seven provides, that "If any of the persons so unlawfully assembled shall demolish, destroy, &c., or do any other unlawful act, he shall," &c. Now, we think that section seven, in speaking of persons "so unlawfully assembled," refers to section one, which clearly contemplates the assemblage as "unlawful," before any steps by the conservators of the peace to disperse it. Surely it would subject the laws to very great and just reproach if its eyes were closed |