1 Or. 308 | Or. | 1860
From the points raised in this case, it becomes necessary to consider two questions:
1st. Whether tbe recognizance is such that it justifies a recovery against a surety; and,
2d. Whether the recognizance could be forfeited at tbe sittings of tbe District Court for Benton County.
The plaintiff in error insists, that tbe District Court of tbe first judicial district of tbe territory of Oregon, of which tbe county of Benton was a part, was held at Salem, in Marion County; and that tbe act of Congress of August 16th, 1856, and tbe act of our own territorial legislature of December 10th, 1856, forbid tbe bolding 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 tbe forfeiture of tbe recognizance in Benton County was unauthorized.
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 indictments 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 indictment shall state in what county the offence was committed;
Milner could not have been tried for an assault with intent to murder, as charged against him, except in Benton County, and in a District Court. We cannot suppose that the legislature, while assuming to provide for the punishment of territorial offences, intended to suspend all trials and punishments for those offences; yet, if it be true that District Courts could not be held but at one place in a district, and that such courts were lawfully held at Salem, in Marion County; and if it be also true that territorial offences could be tried only at the sittings, and in the counties where the offences were committed, then, it necessarily follows that the legislature, while assuming to provide trial and punishment for offences, did, whether intended or not, suspend the trial and punishment of all the higher territorial offences committed in those counties. We think that nothing of the kind was intended or effected. Our statute provides, that no action, brought on a recognizance, “ shall be barred or defeated, nor shall judgment be arrested thereon, by reason of any neglect or omission to note or record the default of the principal or surety, at the term
The judgment of the court below is affirmed.