Keith v. Cheeny. deed to the premises from William W. Chapman and wife, and also three other paper writings; one, a donation certificate issued to said Chapman and wife; one, a certificate stating that said Chapman had paid at the land office one dollar and a quarter per acre for the land described in said donation certificate; the other, a receipt for said money so paid; each of these papers purported to be copies of papers signed by the surveyor-general of Oregon. These papers were attached together, and upon the back of the first named were the certificates of the register and receiver. The land described in said donation certificate embraces the land in dispute. Defendant objected to the admission of these papers: 1st. Because they did not come from the officer properly having their custody. 2d. That the evidence of residence and cultivation ought to accompany them. As to the first point: the first amendment to the act of Congress of the 27th of September, 1850, (commonly known as the donation law,) provides for the appointment of a register and receiver for Oregon; and further provides, that the surveyor-general shall perform the duties of such officers, until he shall be superseded in this business by the register and receiver thus provided for. The business of issuing certificates to settlers properly be longs to the office of register and receiver; and, on the appointment and qualification of such officers in Oregon, they became in this business the successors of the surveyor-general, and their office the proper place of deposit for donation certificates; and this donation certificate, coming, as it does, from that office, was properly admitted, to show that Chapman and wife were possessed of the premises, including the land in dispute. As to the other two papers, mentioned as attached to this donation certificate, we think them improperly admitted, for they were not certified at all, and, for aught that appears, might have been attached without authority. But all these papers were offered together to show possession Keith v. Cheeny. by Chapman, and as that was sufficiently shown by the paper that was certified, they were immaterial, and could have worked no injury to the plaintiff in error, for Cheeny having produced a deed from Chapman and wife to himself, and then shown that Chapman and wife were possessed of the premises, was clearly entitled to recover against Keith, who does not pretend to have shown any title at all except possession. We also think it was not necessary for Cheeny to produce, on the trial, the original evidence of residence and cultivation by Chapman and wife, for the certificate recites those facts, and is evidence of the facts which it recites. There is one other point insisted upon by the plaintiff in error, which is, that the act of the legislature of this State, providing for and regulating real actions, does not contemplate any but the recovery of strictly legal titles. This language of the first section of this statute, "that any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action," &c., is very broad, and was intended to embrace in one form all actions for the recovery of the possession of real estate. And in any case, although the legal title is still in the United States, we think the donee of a land claim, having obtained a certificate thereto, or his assignee, may maintain this action against one who shows no color of title. In this case, the defendant, Keith, did not show any title whatever, except naked possession; and, therefore, is not entitled to hold against the assignee of Chapman, who holds the donation certificate, which, at least, shows that he was in possession under color of title. Judgment below affirmed. McClane v. Thomas. JOHN B. MCCLANE, Plaintiff in Error, v. ANDREW THOMAS, Defendant in Error. Error to Douglas. A. executed to B. a note for purchase of town lots, which note was sued upon. The issues submitted to the jury were, 1st. Did the plaintiff abandon his land claim? 2. Was the note without consideration? Under that state of the case, the court below PROPERLY refused to give the following instruction, viz.: "That, under the pleadings, it must satisfactorily appear that the defendant demanded a conveyance of the town lots, or the plea of want of consideration does not apply." SUIT was brought in the late District Court for Douglas County, in April, 1858, by John B. McClane, against Andrew Thomas, upon a negotiable promissory note, executed by Thomas to McClane, January 31st, 1853, payable one day after date. The defendant alleged, by way of defence, that the note was given in payment for two town lots in North Salem, of which the plaintiff claimed to be the owner under an act of Congress, approved September 27th, 1850, making donations to settlers, and for other purposes; that the plaintiff, before perfecting his right to the land upon which said lots were situated, abandoned the same; and that said note was without consideration. The plaintiff replied to the defendant's answer, and denied such abandonment and such want of consideration. The case was submitted to a jury, that, "under the pleadings in this action, it must appear satisfactorily that the defendant demanded a conveyance of the lots, or the plea of want of consideration does not apply." The court declined to instruct as requested, and such ruling was excepted to. The jury found a verdict for the defendant. The plaintiff moved for a new trial, which was denied, and judgment was entered for defendant upon the verdict. McClane v. Thomas. Williams & Gibbs, for plaintiff in error. WAIT, C. J. The question to be determined by this court is, did the court below commit error in refusing to instruct the jury, that, "under the pleadings in this action, it must appear satisfactorily that the defendant demanded a conveyance of the lots, or the plea of want of consideration does not apply?" No other ruling of the court was excepted to; and the several other matters, not of record, embraced in the motion for a new trial, having been decided in the court below, will not be re-heard here. The issues submitted to the jury were, did the plaintiff abandon his claim, and was the note without consideration? A demand, by the defendant, of a conveyance of the lots, would not be necessary or material in the determination of these issues. The jury, in finding a verdict for the defendant, necessarily found one or both of these issues in the defendant's favor. If the note was without consideration, no demand of a conveyance would be necessary; and if the plaintiff had abandoned his claim, and had thereby placed it out of his power to convey the lots, no demand of conveyance would be necessary. We find no error for which the judgment of the court below ought to be reversed. Judgment below affirmed. VOL. I. 19 Jennings v. State. CHANDLER JENNINGS, Plaintiff in Error, v. STATE OF OREGON, Defendant in Error. Error to Marion. Where the record shows that a sentence has been amended by erasing the word "solitary," without showing what position it sustained in the sentence, this court cannot say whether its insertion or erasure would be prejudicial to defendant. CHANDLER JENNINGS was indicted at the May term of the Circuit Court, 1859, for Marion County, for larceny, in stealing divers articles of personal property of the value of more than thirty-five dollars. Upon trial, he was found guilty, as charged in the indictment, and sentenced to imprisonment in the penitentiary for the term of five years. The other facts in the case sufficiently appear in the opinion of the court. G. H. Williams, for plaintiff in error. J. G. Wilson, prosecuting attorney, for defendant in error. WAIT, C. J. The matters assigned as error, and relied upon, are as follows: 3d. The sentence of the court is not warranted by law. 4th. The change in the sentence is irregular and void; and it was made without notice to the plaintiff in error, and at a term of court subsequent to the term when the judgment and sentence of the court were entered. 5th. The proceedings are irregular and illegal. The record of the judgment and sentence of the court below, as it comes before us, is as follows, to wit: "This day came the State of Oregon, by Wilson, prosecuting attorney, and the said defendant, in his own proper person, as well as by Williams, his attorney, and moves for a new trial in this |