a full and correct transcript of such judgment shall be made by the clerk, and a mandate shall issue from this court to the District Court from which the cause came, commanding the District Court to cause the same to be entered upon the record of the proceedings of said court, and to proceed to the enforcement of the same in like manner as if the said judgment had been rendered therein; which said transcript, and the mandate, the said clerk shall make out under the seal of the Supreme Court, and deliver to the party interested upon demand, and the payment of the costs which have accrued in this court; and the party advancing such costs shall have the same remedy for the collection thereof against the party condemned in costs, as in other cases where costs are advanced. 19. All causes upon the docket which shall not otherwise be disposed of at any term of this court, shall stand continued until the next term of this court. 20. Whenever a justice, or other officer, approves of the security to be given in any case, it shall be the duty of said justice, or other officer, to require each of the sureties to jus tify; and unless the sureties shall together justify that they are worth, over and above all debts and responsibilities they may owe or have incurred, a sum equal to twice the amount named in the penalty of the bond, such security shall not be deemed sufficient; provided, that, if such justice, or other officer, shall then be of opinion that such security is insufficient, he may require other and additional security. 21. No papers or records filed in court, or in the clerk's office, shall be taken therefrom, unless by leave of the court, or upon the written order of one of the justices thereof. 22. No attorney of this court, or the clerk, shall be received as bail or security in any case in court. 23. All chancery cases, brought up on appeal, shall stand for hearing upon the same pleadings and evidence as in the District Court, unless the court shall otherwise direct. CASES ARGUED AND DETERMINED IN THE Supreme Court of the United States, FOR THE TERRITORY OF OREGON, December Term, A. D. 1853. ROBERT THOMPSON, Plaintiff in Error, v. JACOB BACKENSTOS, Error to Multuomah. 1. A motion is no part of the record. 2. A bill of exceptions, signed and sealed by the judge, is the proper mode of placing upon the record instructions, given and refused by the court to the jury. ACTION-trespass quare clausum fregit. Plea-not guilty. Trial and verdict for defendant. After verdict and before judgment, the plaintiff moved for a new trial, and in arrest of judgment. The motion sets forth certain instructions, in the giving of some, and in the refusing of others of which, plaintiff says there is error. Defendant insists that this allegation of error cannot be considered, because the proceedings, of which complaint is made, are not in any legal or sufficient manner before this court. No bill of exceptions was taken in this case; nor is there VOL. I. 2 17 1 25 Thompson v. Backenstos. any order of the court below making plaintiff's motion a part of the record; but such motion is subscribed as follows: "Allowed, Thomas Nelson, District Judge." Wait & Logan, for plaintiff. Campbell & Boise, for defendant. WILLIAMS, C. J. The occasion or object of this endorsement cannot be determined by the record, but it was more reasonable to suppose it was intended to assist plaintiff in preparing a bill of exceptions, or for some other temporary purpose, than to suppose it was designed to make a record by which to settle the rights of the parties in the Supreme Court. None of the evidence or proceedings of the court below are contained in the motion, except three or four naked instructions; and this makes it difficult to conclude that any parties concerned, seeking or expecting a re-adjudication in a court of final resort, would have been content with such an imperfect statement of the case. The signing of a party's motion for a new trial by the judge, before whom the motion is made, with the view of subjecting questions to the judg ment of a Supreme Court, is a proceeding unknown to practice and without precedent. Such an act, being a total departure from the known usages of courts, ought not to be taken as plaintiff contends, when it admits of another and far more reasonable construction. This court is governed by the record, which it takes to be verity, and the motions of counsel in the court below are no more a part of the record than their arguments, unless made so by the court; otherwise records might be made with reference to the interests of the parties, rather than the real facts of the case. The written statement of counsel, in the shape of a motion, endorsed by the judge of the District Court as "correct," does not become, by virtue of such endorsement, a part of the record. Section 19 of the Practice Act provides, that when exceptions are alleged in any civil cause, it shall be the duty of the Stephens v. Dennison. judge "to allow such exceptions, and sign and seal the same, and the said bill of exceptions shall thereupon become a part of the record in such cause." Under this statute the mere allowance of a bill of exceptions, as this motion was allowed, would not make such bill of exceptions a part of the record; it must be signed and sealed, and thereupon it becomes a part of the record. Plaintiff seeks to have his motion perform the office of a bill of exceptions, when it is neither sealed, nor made a part of the record, by any order of court or rule of law; and does not even show that any objection was made in the court below to the decision by which it was overruled. When a party brings the record of a District Court here for revision, and alleges that there is error in such record, he must show, not a possible or probable case of mistake, but positive error, injurious to his interests. This court will not go out of the record, into the regions of conjecture, to find such error; it must distinctly and affirmatively appear. The law provides a plain, simple and convenient remedy in a bill of exceptions, if a party feel aggrieved by the decision of a District Court; and we cannot permit the practice pursued in this case to take the place of that prescribed by law; for, independent of any legal objection, it would not only be perplexing to the court of review, but dangerous to the rights of parties. Without considering any other questions in the case, the judgment of the court below is affirmed. THOMAS STEPHENS, Plaintiff, v. AMI P. DENNISON and ZACHARIAH C. NORTON, Defendants. Adjourned from Washington. Motion to set aside execution and sale. 1. An execution is a "writ" within the meaning of the 1st section of the Practice Act; and after sale and conveyance of real estate under it, will not be set aside, because the sheriff is directed therein to make "due return thereof." Stephens v. Dennison. 2. The plaintiff in execution, who buys in defendant's property to satisfy his debt, is chargeable with all irregularities; but a stranger, who buys in good faith, is only chargeable with substantive defects in the proceedings. On the 4th of November, 1851, Stephens recovered a judgment for $765 against Norton and Dennison in the District Court of Washington County. Execution was issued on the 23d day of March, 1853, requiring the sheriff, among other things, to make due return of the writ; and on the 15th of September, 1853, the sheriff returned that he had levied upon lot No. (2) two, in block 79, in Portland, and that on the 16th of July, 1853, he sold the same according to law, to W. H. Barnhart and D. C. Coleman for the sum of $2,700. The sheriff was ruled to amend his return, which he did by showing that he had posted up the necessary advertisements; but instead of giving defendant, Norton, a notice in writing of the time and place of sale, he told him he had levied upon the said lot, and Norton replied, "it was nothing to him, as he did not own the property." The date of the levy does not appear. The sheriff has paid the full amount of the execution out of the purchase money to Stephens, and made a deed to Coleman and Barnhart for the lot. Due notice of this motion has been given to them. Authorities cited: Lee v. Chapman, 6 Humphrey, 281; Wilson & Wheeler v. Mance & Collins, 11 Humphrey, 189; Walter et al. v. Nelson et al. 1 Swan, 7; Jackson v. Pratt, 16 Johnson, 386; Jackson v. Davis, 18 Johnson, 10; Jackson v. Page, 4 Wendell, 586; Jackson v. Streeter, 5 Cowen, 529; Woodcock v. Bennett, 1 Cowen, 737; 2 Tidd's Prac. 1032; 4 Bingham, 147. Wait, for plaintiff. Campbell & Boise, for defendants. WILLIAMS, C. J. Norton now moved to quash the execution, because it commanded the sheriff to make due return thereof, instead of commanding him to return it within thirty days from its date. |