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justice of the marine court, or any one of the assistant justices, of the Art. 2. said city; in the manner herein after prescribed, in the following cases: 1. Where such person shall hold over and continue in possession of a case of
holding over the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord:
2. Where such person shall hold over without such permission as Default in aforesaid, after any default in the payment of rent pursuant to the agreement under which such premises are held, and satisfaction for such rent cannot be obtained by distress of any goods, and a demand of such rent shall have been made, or three days' notice in writing, requiring the payment of such rent, or the possession of the premises, shall have been served by the person entitled to such rent, on the person owing the same, in the manner prescribed for the service of ihe summons in the thirty-second section of this Title:
3. Where the tenant or lessee of a term of three years, or less, Taken benefit shall have taken the benefit of any insolvent act, or been discharged act." under any act for the relief of his person from imprisonment:
4. Where any person shall hold over and continue in the possession Land sold by of any real estate which shall have been sold by virtue of an execution against such person, after a title under such sale shall have been perfected. 86
$ 29. Any landlord or lessor, his legal representatives, agents or Affidavit to assigns, may make oath in writing, of the facts, which, according to the preceding section, authorise the removal of a tenant, describing therein the premises claimed; and may present the same to one of the officers in the last section specified.
S 30. On receiving such affidavit, such officer shall issue his sum- Summons to mons, describing the premises of which possession is claimed, and re- '' quiring any person in possession of the said premises, or claiming the possession thereof, forthwith to remove from the same; or to show cause, before the said magistrate, on the same day, or within such time as shall appear reasonable, not less than three nor more than five days, why possession of the said premises should not be delivered to such applicant. 87
$ 31. Previous to issuing such summons in the case of a tenancy Proof in cerat will or at sufferance, the magistrate shall be satisfied by affidavit, that such tenancy has been terminated by giving notice in the manner prescribed by law. And if application be made for such summons to be served on any person holding over real estate which shall have been sold on execution, the magistrate shall in like manner be satisfied that a demand of the possession of such premises has been made. 87
(86) Laws of 1820, p. 176, § 1, 3 & 9. (87) Ib. § 1.
Service of summons.
Warrant when to isSUO.
TITLE '0. $ 32. Such summons shall be served, either, m
1. By delivering to the tenant to whom it shall be directed, a true copy thereof, and at the same time showing him the original: or,
2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age residing on the premises.
S 33. If at the time appointed in the said summons, no sufficient cause be shown to the contrary, and due proof of the service of such summons be made to such magistrate, he shall thereupon issue his warrant to the sheriff of the county, or to any constable or marshal of the city or town where the premises are situated, commanding him to remove all persons from the said premises, and to put the said appli
cant to such magistrate, into the full possession thereof.88 Traverse by $ 34. Any person in possession of such demised premises, and any
person claiming possession thereof, may, at the time appointed in such summons for showing cause, or before, file an affidavit with the magistrate who issued the same, denying the facts upon which the said summons was issued, or any of those facts; and the matters thus controverted, shall be tried by a jury. 89
S 35. In order to form such jury, the magistrate with whom such summoned, affidavit shall be filed, shall nominate eighteen reputable persons,
qualified to serve as jurors in courts of record; and shall issue his precept, directed to the sheriff or one of the constables of the county, or any constable or marshal of the city, or town, commanding him to summon the persons so nominated, to appear before such magistrate, at such time and place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said
matters in difference.90 How drawn S 36. Twelve of the persons so summoned, shall be ballotted for
and drawn, in like manner as jurors in courts of record; and shall be sworn by such magistrate, well and truly to hear, try, and determine
the matters in difference between the parties. 90 How kept kept. S 37. After hearing the allegations and proofs of the parties, the
said jury shall be kept together until they agree on their verdict, by the sheriff or one of his deputies, or a constable, or by some proper person appointed by the magistrate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record.90 .
$ 38. If such jury can not agree, after being kept together for such time as such magistrate shall deem reasonable, he may discharge them, and nominate a new jury, and issue a new precept in manner aforesaid.90
Jury bow formed and
S 39. If the verdict of any jury so summoned, shall be in favor of ART. 2. the lessor or landlord, or other person claiming the possession of the
Warrant of premises, the magistrate shall issue his warrant to the sheriff of the possession. county, or to the marshal or constable of the city or town, in which the premises are situated, commanding such officer to put such landlord, lessor or other person, into possession of the premises, as herein before directed.91
$ 40. The officer to whom such warrant for delivering possession How executshall be directed and delivered, in either of the cases aforesaid, is hereby required to execute the same according to the tenor thereof.91
S 41. Any magistrate before whom such application may be pend- Adjourning, may, upon the request of either party, adjourn the hearing of such application, for the purpose of enabling such party to procure his witnesses whenever it shall appear to be necessary; but such adjournment shall in no case exceed ten days. S 42. Any magistrate before whom such application may be pend- Subpoena,
&c. for witing, may, at the request of either party, issue his subpæna, requiring nesses. any person to appear and testify before such magistrate, or before the jury, touching the matters herein directed to be heard by them; and every person who, being served with such subpæna, shall, without reasonable cause, refuse or neglect to appear; or appearing, shall refuse to answer upon oath, touching the matters aforesaid ; shall be subject to the proceedings and penalties provided by law in similar cases.
S 43. Whenever a warrant shall be issued as aforesaid, by any Effect ofiseu. such magistrate, for the removal of any tenant from any demised pre-ing mises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled. 92
S 44. The issuing of such warrant of removal, shall be stayed in staying warthe case of a proceeding for the non-payment of rent, if the person tain case. owing such rent shall, before such warrant be actually issued, pay the rent due, and all the costs and charges of the proceedings; or give such security as shall be satisfactory to the said magistrate, to the person entitled to such rent, for the payment thereof, and the costs aforesaid, in ten days. 92
$ 45. When the application to a magistrate is founded on the fact, Ib. that the tenant or lessee has taken the benefit of any insolvent act, or been discharged under any act for the relief of his person from imprisonment, the proceedings shall be stayed, if at any time before issuing the warrant for removal, the tenant or lessee or his assignee shall pay the costs of such proceedings as have been had, and give such security
TITLE 10. to the person entitled to the rent, for the payment thereof as it shall
become due, as shall be satisfactory to the magistrate. 93
$ 46. When such application is founded upon an alleged sale by execution, of the premises occupied by the defendant in such execution, the proceedings shall be stayed, if at any time before issuing the warrant of removal, the occupant shall,
1. Pay the costs of such proceedings :
2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold, or as guardian or trustee for any other: and,
3. Execute a bond to the applicant for such warrant, in such penalty and with such sureties as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such applicant within six months, for the recovery of the possession of such premises; and to pay the value of the use and occupation of such premises, from the date of such bond, to the time such applicant shall obtain possession of the same by virtue of a recovery in such action of ejectment; and also conditioned not to commit any waste or injury to such premises, during his occupation thereof.
$ 47. The supreme court may award a certiorari for the purpose of examining any adjudication made on any application hereby authorised; but the proceedings on any such application shall not be stayed or suspended by such writ of certiorari, or any other writ or order of any court or officer.
S 48. Whenever any such proceedings brought before the supreme court by certiorari, shall be reversed or quashed, the court may award restitution to the party injured, with costs; and may make such orders and rules, and issue such process, as may be necessary to
carry their judgment into effect. Costa : dama. S 49. In all cases of an application pursuant to the provisions of
this Article, the prevailing party shall recover costs, and may maintain an action for the recovery thereof; and if the proceedings shall be reversed or quashed by the supreme court, the tenant or lessee may recover against the person making application for such removal, any damages he may have sustained by reason of such proceedings, with costs, in an action on the case.
$ 50. Nothing contained in this Title shall be construed to impair the rights of any landlord or lessor, or of any tenant, in any case not herein provided for.
Certiorari to remove proceedings
Awarding restitution and costs.
ges in certain cases.
Rights of landlords, &c.
OF DISTRAINING CATTLE AND OTHER CHATTELS DOING DAMAGE,
AND OF DISTRAINING IN OTHER CASES.
2. Authority and duty of fence-viewers in appraising damages.
25. Proceedings by owner to obtain surplus.
S 1. When any distress shall be made of any beasts doing damage, Keeping catthe person distraining shall keep such beasts in some secure place other than the public pound, until his damages shall be appraised; and within twenty-four hours after such distress, unless the same was made on a Saturday, in which case, before the Tuesday morning thereafter, he shall apply to two fence-viewers of the town, to appraise the damage. 94
S 2. Such fence-viewers shall thereupon immediately repair to the Fence view place, and view the damage done ; and they may take the evidence praise Puma of any competent witnesses of the facts and circumstances necessary to enable them to ascertain the extent of such damage, for which purpose, either of them is hereby authorised to administer an oath to every such witness. 94
S 3. The said fence-viewers shall ascertain and certify, under their to certify bands, the amount of such damage, with their fees for their services ; ei and if any dispute shall arise, touching the sufficiency of any fence" around the premises, where such damage was done, the said fenceviewers may examine witnesses in relation thereto, and for that purpose, may administer oaths to such witnesses; and they shall determine such dispute; which decision shall be conclusive.
S 4. Within twenty-four hours after the said damages shall be so Pulting appraised, unless the amount so ascertained, and the fees of the fence- und viewers, shall have been paid, the person making such distress, shall
(94) 2 R. L. p. 134, § 19.
praine dama ges &c.