McEwen v. City of Portland.

of enjoyment or privilege within the period of living

memory.

"3d. That it must not be reputation or traditionary declarations to a particular fact." (1 Greenleaf's Ev. sec. 138; Elliott v. Pearl, 10 Peters' R. 412; Mima Queen v. Hepburn, 7 Cranch, 290; Davis v. Wood, 1 Wheaton's R. 6; Regina v. The Inhabitants of the County of Bedford, per Lord Campbell, C. J., 29 English L. & E. R. 85.)

For these reasons, we think, there was error in the ruling of the court below.

Judgment reversed, and cause remanded.

CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of the State of Oregon,

December Term, A. D. 1860.

DELAVANTIA ROCHESTER, Plaintiff in Error, v. JAMES ROCHESTER, Defendant in Error.

Polk County.

Statute requires only ten days' service of complaint and notice, in suit for divorce within the State.

THE defendant in error filed his complaint, in the Circuit Court of Polk County, for divorce, on the 23d day of March, 1860, and, at the April term thereafter, obtained a decree against the plaintiff in error by default. Service was had upon plaintiff in error, in the county of Linn, on the 30th day of March, which was more than ten, and less than thirty days, before the first day of the term at which the decree was entered.

G. H. Williams, of counsel for plaintiff in error.

E. M. Barnum, of counsel for defendant in error.

Gird v. State.

PRIM, J. Several assignments of error are made in this cause; but the only one relied upon is, "that the service was insufficient to entitle the defendant in error to the decree at that term of the court." The question raised in this cause is, "should the service have been made thirty days before the first day of the term," as is provided for in actions at law, when suit is commenced in one county, and service is had in another?

We think not, as the statute has clearly provided on the subject of divorce what kind of service is necessary to entitle the plaintiff to have the evidence heard, and the cause decided by the court. Oregon Statutes, page 589, section 6, provides in substance that, when personal service is had ten days before the commencement of the term, the evidence may be heard, and the cause decided at that term, without any reference as to whether the service is made in the county where the action is commenced, or in another. We think there is no error in the proceedings of the court below, for which that judgment should be reversed.

Judgment is therefore affirmed.

WILLIAM GIRD, Plaintiff in Error, v. STATE OF OREGON, Defendant in Error.

Benton.

A recognizance to appear at the next term of the District Court for Benton County, taken under the territorial act of December 10th, 1856, entitled "An act to conform the practice of the courts to the act of Congress of August 16, 1858," is good. The sittings therein provided for are District Courts, and the duration of each sitting is a term."

"

Surr was brought in Benton County, by the State against William Gird, upon a recognizance entered into under the

Gird v. State.

late territorial government, before a justice of the peace of Benton County, on the 6th day of June, A. D. 1858, by said Gird and Moses E. Milner, for the appearance of said Milner at the District Court of Benton County, on the first day of the next term thereof, and answer a charge of an assault with an intent to murder. At the regular term of the District Court, held at Salem, September 7th, 1858, a true bill of indictment was found against said Milner, and at the next "sittings," so called, of the District Court of Benton County, held on the 4th day of October, 1858, the said Milner being called to appear, and failing to do so, the recognizance was forfeited. The defendant below demurred to the complaint, which demurrer was overruled by the court, and judgment rendered for the plaintiff. The plaintiff in error brings suit to reverse that judgment.

Kelsay & Thayer, for plaintiff in error.

G. H. Williams, for defendant in error.

WAIT, C. J. From the points raised in this case, it becomes necessary to consider two questions:

1st. Whether the recognizance is such that it justifies a recovery against a surety; and,

2d. Whether the recognizance could be forfeited at the sittings of the District Court for Benton County.

The plaintiff in error insists, that the District Court of the first judicial district of the territory of Oregon, of which the county of Benton was a part, was held at Salem, in Marion County; and that the act of Congress of August 16th, 1856, and the act of our own territorial legislature of December 10th, 1856, forbid the holding of a District Court, except at one place in a judicial district; and hence that this recognizance to appear at the District Court for Benton County, especially as against a surety, was void, and that the forfeiture of the recognizance in Benton County was unauthorized.

Gird v. State.

The act of Congress, we think, did not forbid the holding of territorial courts, for the enforcement of territorial laws, at the expense of the territories.

The reason of the enactment of this law of Congress was, that in one of the territories very heavy expenses had been incurred, attendant upon the holding of District Courts.

Whether intended by Congress or not, a practice had prevailed of holding District Courts, by the United States territorial judges, in all the counties where the wants of the people and territorial enactments required it. Much expense and time would be saved to the people by the holding of courts in their respective counties; and if the United States territorial judges were willing, as ours were, without increase of pay or neglect of United States business, and without any increase of the expense to the United States, to hold District Courts at more than one place in a judicial district, no reason is discovered why Congress should confine the holding of District Courts to one place in the district. We think that Congress, in its act aforesaid, did not prohibit the territorial legislature from providing for, nor the United States territorial judges from, holding courts in the several counties in the territories. We think, also, that a reasonable construction of the act of the territorial legislature, passed December 10th, 1856, entitled an "Act to conform the practice of the courts to the act of Congress of August 16th, 1856," shows that it authorized the holding of District Courts, for the transaction of territorial business, without cost to the United States, in Benton County. This act provides for the holding of a District Court in one place in each judicial district, and for sittings in each county, for the trial of issues of fact in cases arising in such counties. It provides that a grand jury be summoned by the marshal from the district, upon a venire issued by the clerk of the District Court; and that indict ments shall be deemed at issue, on the plea of not guilty, without arraignment or formal plea, and sent down for trial at the first sittings thereafter. It provides, that every indict. ment shall state in what county the offence was committed;