Oct. 21, 1864, 113. Fees of district attorney. Feb. 14, 1885, 1. p. 20. Fees of district attorney for attending ex amination be fore a magis trate or at coro ner's inquest. CHAPTER XII. OF MISCELLANEOUS PROVISIONS IN RELATION TO PROCEED- § 2166. Fees of district attorney in justices' courts. § 2167. Fees of district attorney for attending examination before magis. trate or at coroner's inquest. § 2168. District attorney to control proceedings on behalf of state, and may appear by another. § 2169. Judgment of justice may be reviewed for errors in law. § 2170. When appeal cannot be taken from judgment given on a verdict of a jury. § 2171. Qualifications and justification of bail in criminal actions. § 2172. Security for costs and private prosecutor. § 2173. Any person may act as attorney in justice's court; appointment of person to serve process. § 2174. Party entitled to one hour to appear in; if justice engaged, may postpone proceedings. § 2166. [116.] The district attorney shall be allowed and receive for every criminal action prosecuted by him in a justice's court, if the defendant is convicted, ten dollars, or if acquitted, one half thereof, but if the action is tried by a justice without the intervention of a jury, only one half of such fees. In a civil action in a justice's court for the recovery of any penalty or forfeiture, prosecuted by the district attorney, twenty per centum of the amount recovered and collected. § 2167. [117.] The fees of a district attorney, when Laws of 1885, earned in the prosecution of any action, as provided in section 2166 [116], must be paid by the county wherein the court is holden, and upon the certificate of the justice before whom the action was prosecuted. When a district attorney, other than the district attorney of the first judicial district, attends before a magistrate and conducts an examination on behalf of the state, upon a charge of crime, he is entitled to a fee of five dollars therefor, and the district attorney of the first judicial district is entitled to a fee of ten dollars therefor, and five dollars per day for every day occupied by him in attending to a coroner's inquest, and mileage at the rate of ten cents a mile for $1. p. 20. the number of miles actually traveled by him in attend- Feb. 14, 1885, ing said examination inquest, to be certified and paid as Laws of 1885, provided in this section for other district attorney's fees. § 2168. [118.] The district attorney may prosecute oct. 21, 1864, an action in a justice's court, or attend an examination before a magistrate, either in person or by some one ap- ney to control proceedings on pointed by him for that purpose, and in either case he behalf of state. is entitled to the fees allowed in this chapter therefor, and to control the proceedings on behalf of the state. $115. District attor 116. Judgment of justice may be reviewed. § 2169. [119.] No provision of this act, in relation Oct. 21, 1864, to appeals or the right of appeal in either civil or criminal cases, must be construed so as to prevent either party to a judgment given in a justice's court from having the same reviewed in the circuit court for errors in law ap- 14 Or. 210. pearing upon the face of such judgment or the proceedings connected therewith, as provided in title I. of chapter VII. of the Code of Civil Procedure. 5 Or. 442. 117. Appeal. § 2170. [120.] No appeal can be taken, by the party oct. 21, 1864, who demanded a jury, from a judgment in a justice's court, given upon the verdict of such jury, in either a civil or criminal action, unless the judgment be for a fine or 15 Or. 599. amount of money not less than fifty dollars, or for the recovery of personal property of the value of not less. than fifty dollars, exclusive of costs and disbursements in either case, or for the imprisonment of such party not less than twenty-five days. $ 118. § 2171. [121.] The qualifications of bail in criminal Oct. 21, 1864, actions in justices' courts, and the justification thereof, is prescribed and regulated by the Code of Criminal Pro- of bail in crimcedure. Qualifications inal actions. $119. Security for § 2172. [122.] The justice may, in his discretion, re- Oct. 21, 1864, quire the private prosecutor in a criminal action to give security for costs and disbursements, before filing or re- costs. ceiving the complaint therein, in the amount authorized in civil actions, and not otherwise. $ 120. § 2173. [123.] Any person may act as attorney for oct.21, 1864, another in a justice's court, except a person or officer serving any process in the action or proceeding, other as attorney. Who may act Oct. 21, 1864, 120. Who may act as attorney. 18 Or. 300. Oct. 21, 1864, 121. Party entitled to one hour; justice may than a subpoena. Whenever it appears to the justice that any process or order authorized to be issued or made by this act will not be served for want of an officer, such justice may appoint any suitable person not being a party to the action, to serve the same; such an appointment may be made by an indorsement on the process or order, in substantially the following form, and signed by the justice with his name of office: "I hereby appoint A B to serve the within process or order," as the case may be. § 2174. [124.] A party is entitled to one hour in which to make his appearance after the time specified in the summons, and not otherwise, and if the justice be postpone pro- then actually engaged in other official business, he may, on his own motion, postpone further proceedings in the case until such official business has been completed or he can be disengaged therefrom. ceedings. For failure to allow the hour here provided, judgment will be re versed on writ of review: Gaunt v. Perkins, Or. 354. Oct. 21, 1864, $122. CHAPTER XIII. OF ACTIONS TO RECOVER POSSESSION OF MINING CLAIM. § 2175. Justice's court has jurisdiction of. § 2176. Pleadings in writing; what complaint must contain. § 2181. Regulations of mining district may be proven as facts, and effect of. § 2182. Appeal from judgment, and stay of proceedings. § 2183. Action to be governed by law regulating other civil actions, except, etc. § 2175. [125.] A justice's court has jurisdiction of an action to recover the possession of a mining claim, To recover pos- situate within the county where such court is holden, as in this chapter provided. session of mining claim, jurisdiction. Oct. 21, 1864, $123. § 2176. [126.] The pleadings in such action must be in writing, and the complaint must set forth the facts constituting the plaintiff's right of possession, together § 123. with such a description of the mining claim as can be cet. 21, 1864, conveniently given, and sufficient to identify it, and that the defendant wrongfully withholds the possession there- must be in of from the plaintiff. Pleadings writing. § 124. Answer of the § 2177. [127.] The answer of the defendant must Oct. 21, 1864, contain a specific denial of each material allegation of the complaint controverted by him, or of any knowledge defendant. or information thereof sufficient to form a belief, and a statement of any new matter constituting a defense to the action. $125. One year's pos § 2178. [128.] One year's adverse possession of a Oct. 21, 1864, mining claim, immediately preceding the commencement of an action therefor, by the defendant or those under whom he holds, if pleaded, is a bar to the action pleaded. for the possession thereof. session a bar to action, if § 126. Judgment for § 2179. [129.] If, on the trial of the action, judgment Oct. 21, 1864, be given for the plaintiff, it must be to the effect that the plaintiff recover the possession of the mining claim plaintiff. mentioned in the complaint, or such part thereof as he may be found entitled to, together with the costs and disbursements of the action, and thereafter the plaintiff is entitled to have such judgment enforced by a writ of restitution, which writ shall be deemed an execution against property so far as such costs and disbursements are concerned. § 2180. [130.] If judgment be given for the defendant, Oct. 21, 1861, $127. it must be to the effect that the plaintiff is not entitled Judgment for to the possession of the mining claim mentioned in the defendant. complaint, or any part thereof, and that the defendant recover of the plaintiff the costs and disbursements of the action. ◊ 128. Regulations district. § 2181. [131.] On the trial of an action to recover the Oct. 21, 1864, possession of a mining claim, the customs, usages, or regulations established and in force in the mining dis- of mining trict or diggings in which such claim is situated, not in conflict with any law of the United States or of this state, so far as they may be pertinent and applicable to the issue to be tried, may be proven as facts, and when Oct. 21, 1864, $128. Regulations of mining claims. so proven shall be deemed the law governing the rights of the parties thereto. etc. Proof of mining laws, customs, Controversies affecting a mining right must be solved and determined by the customs and usages of the bar or diggings embracing the claim to which such right is asserted or denied, whether such customs and usages are written or unwritten: Morton v. Solambo C. M. Co., 26 Cal. 527; Meyers v. Spooner, 55 Id. 257. A local mining regulation or custom, adopted after the location of a mine, cannot limit the extent of a claim previously located: T. M. Tunnel Co. v. Stranahan, 31 Id. 387. Upon the question of reasonableness of the extent of a mining location, a general custom, existing anterior to the location, may be given in evidence: T. M. Tunnel Co. v. Stranahan, 20 Id. 199. It was held that under a mining custom an actual possession of a portion of a claim was constructive possession of the remainder: Hicks v. Bell, 3 Id. 224. Mining laws, when offered in evidence, are to be construed by the court: Fairbanks v. Woodhouse, 6 Id. 435. The custom of miners in many cases was held of great if not controlling weight: Brown v. 49 etc. Co., 15 Id. 161. Where the court permitted defendants to introduce in evidence the mining rules of the district, though adopted after the rights of plaintiff had attached, it was held that, as defendants claimed under them, they were competent evidence to determine the nature and extent of the defendants' claim; the effect of the rules upon pre-existing rights being sufficiently guarded by instructions of the court: Roach v. Gray, 16 Id. 383. Mining laws cannot restrict the quantity of land or number of claims which a party may acquire: Prosser v. Parks, 18 Id. 48. The court cannot inquire into the regularity of the modes in which these assemblages of miners act. It is enough that the miners agree whether in public meeting or after due notice upon their local laws, and that these are recognized as the rules of the vicinage, unless fraud, or some other like cause for rejecting the laws, be shown: Gore v. McBrayer, 18 Id. 588. Mining rules and customs need not be set forth in the pleadings. They are matter of proof: Colman v. Clements, 23 Id. 247. Questions are to be solved without any reference to the statute of frauds, etc., except as declared by the custom itself: Morton v. Solambo etc. Co., 26 Id. 533. Different local customs being shown, a general custom regulating the same matter and prevailing at the same place is impossible. A mining law, after its passage, is not changed or in any manner impaired by any surreptitious alteration. Such alteration in the original draught or a copy of the law might make it more difficult to prove, but it would not nullify or change the law. The rule precluding a party to a contract, who has altered it in some material particular, from offering it in evidence, has no application: T. M. Tunnel Co. v. Stranahan, 31 Id. 391. A custom for persons desiring to appropriate a quartz claim to measure off and designate the boundaries, etc., and cause a record of such location to be made in the county recorder's office, makes the entry in the recorder's book the original notice: Pralus V. Pacific G. & S. M. Co., 35 Cal. 36. The failure of a party to comply with a mining rule or regulation cannot work a forfeiture unless the rule itself so provides: McGarrity v. Byington, 12 Íd. 426; Bell v. Bed Rock etc. Co., 36 Id. 219. Where plaintiff relied upon a location under certain written rules, adopted by the miners of the district some five years before, which did not require the posting of notices upon the claim at the time of location, and defendant offered to prove that there was a custom in the district requiring the posting of such notices, and the court excluded the evidence on the ground that written rules superseded any custom, it was held that the exclusion of such evidence was error. The code makes no distinction between the effect of a "custom" or "usage," the proof of which rests in parol, and a "regulation which may be adopted at a miners' meeting and embodied in a written local law; and a custom, reasonable in itself, and generally observed, will prevail as against a written mining law fallen into disuse, or generally disregarded; it then becomes void. The question whether it is in force at a given time is one for the jury: Harvey v. Ryan, 42 Id. 626. |