TITLE 5. of the suggestion, shall be ascertained and paid in the same proportions, and may be collected in the same manner. be made. Sale when to $ 17. If the commissioners report that the premises are so situated that a partition thereof cannot be made, a sale shall be ordered in the like cases, and the same proceedings in all respects, shall be had thereon, as provided in the said third Title of this Chapter, and with Distribution the like effect; except that the amount of damages assessed by the of proceeds. jury, and the plaintiff's costs in the action of waste, to the time of filing the suggestion, shall be deducted from the portion of the proceeds of such sale belonging to the defendant, and shall be paid to the plaintiff. Staying waste by defendants. Order how enforced. Action for waste of execution. $ 18. After the commencement of any action for the recovery of land, or for the recovery of the possession of land, the defendant shall not make any waste of the land in demand, pending the suit; and if such defendant shall commit waste, the court in which the suit is pending, shall have power, on the application of the plaintiff, to make an order restraining the defendant from the commission of any further waste thereon.43 $ 19. The court making such order, shall have the same power to attach and commit the defendant for any violation thereof, that is possessed by the court of chancery upon the violation of an injunction to stay waste, issued by that court. $20. Whenever any lands or tenements shall be sold by virtue of lands sold by an execution, issued upon any judgment or decree, the person to whom a conveyance may be executed by the sheriff, pursuant to such sale, may maintain an action of waste against any person who may have been in possession of the premises so conveyed, after the sale thereof, for any waste committed on such premises, after such sale. Exception. Certain acts, not waste. $21. But no person lawfully entitled to the possession of any premises so sold, shall be liable to any such action, for doing either of the acts authorised in the next section. S22. Any person entitled to the possession of lands or tenements sold under execution, may, until the expiration of fifteen months from the time of such sale, use and enjoy the same, as follows, without being deemed guilty of waste: 1. He may, in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and for which they were used and applied, prior to such sale, doing no permanent injury to the freehold: 2. If the premises sold were buildings, or any other erections, he may make necessary repairs thereto; but he shall make no alterations in the form or structure thereof: (43) 1 R. L. p. 88, § 29. 3. If the premises sold were land, he may use and improve the TITLE 5. same, in the ordinary course of husbandry; but he shall not be entitled to any crops growing thereon, at the expiration of the said fif teen months: 4. He may apply any wood or timber on such land, to the necessary reparation of any fences, buildings or erections, which may have been thereon at the time of the sale: 5. If the land sold is actually occupied by such person, he may take necessary fire-wood therefrom, for the use of his family. vent waste in $ 23. If the person against whose property such execution shall Order to prehave been issued, or any person who may be in possession of the pre- certain cases. mises so sold, shall, at any time after the sale of such premises, and before the time allowed for redeeming the same, do any act of waste thereon, or shall threaten or make preparations to commit waste thereon, the purchaser of such premises, or his authorised agent, may apply by petition to the chancellor, or to any circuit judge or supreme court commissioner, or to the first judge of the county courts of any county, for an order restraining such wrong-doer from the commission of any further waste upon such premises.44 $ 24. If the officer to whom application shall be so made, shall be Ib. satisfied by due proof, that waste has been actually committed by the person against whom the application is made, or that the same has been threatened, or that preparations for committing it have been made, by such person, such officer shall grant an order restraining such person from the commission of any waste on the premises so sold.44 order, how $ 25. If the person against whom any such order shall be made, Violation of shall, after the service of a copy thereof, commit any waste in viola- punished. tion of the said order, he shall be liable to be proceeded against and punished in the same manner as for violation of an injunction to stay waste, issued out of the court of chancery; and for that purpose the officer who may have granted any such order, shall possess the same power and jurisdiction as the chancellor.44 shew cause. $ 26. When complaint shall be made of the violation of any such Notice to order to restrain waste, the court or officer may order notice to be given to the person complained of, to shew cause why he should not be committed, if from the circumstances of the case they shall judge such order expedient. $27. Upon satisfactory proof of such violation, such court or offi- Commitment, cer shall issue a warrant to the sheriff of the county, reciting such order and the proof of the violation thereof, and thereby commanding such sheriff to commit such defendant to close confinement, for such term of time, not more than one year, as shall be deemed expedient.44 form of. TITLE 6. Ib. to close custody. When de fendant may od. $28. The sheriff shall execute such warrant accordingly, and shall commit the person named therein, without allowing him the liberties of the jail. $29. Such warrant may be superseded, and such person may be be discharg discharged by the court or officer committing him, upon receiving a bond, in such penalty and with such sufficient sureties, as such court or officer may approve, to the person applying for the warrant of commitment, conditioned that such prisoner shall not commit any waste on such premises; which bond shall be delivered to such applicant for his use, and to be prosecuted by him for any breach of the condition thereof. Treble damages in certain cases. Exceptions of certain cases. Ib. Forcible ontry or detain er. TITLE VI. OF TRESPASS ON LANDS. SEC. 1. Treble damages to be recovered for certain trespasses. 2. Cases in which single damages only to be recovered. 3. Just value of timber taken for roads or bridges, only to be recovered. 4. Treble damages by persons forcibly ousted, &c. S1. Every person who shall cut down or carry off, any wood, underwood, trees or timber, or shall girdle or otherwise despoil any trees, on the land of any other person, without the leave of the owner thereof, or on the land or commons of any city or town, without having any right or privilege in such commons, and without license from the corporation or proper officers of such city or town, shall forfeit and pay to the owner of such land, or to such city or town, treble the amount of the damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in cases provided by law. 45 $ 2. If upon the trial of any such action, it shall appear that the trespass w casual and involuntary; or that the defendant had probable cause to believe that the land on which such trespass was committed, was his own; or that such wood, trees, or timber were taken for the purpose of making or repairing any public road or bridge, by the authority of a commissioner or overseer of highways; judgment shall be given to recover only the single damages assessed by the jury.45 S3. Nothing in either of the preceding sections shall authorise any person to recover more than the just value of any timber taken for the making or repairing any public roads or bridges.4 45 S4. If any person be disseised, ejected or put out of any lands or tenements, in a forcible manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the (45) 1 R. L. p. 525, § 29. damages assessed by the jury or by a justice of the peace, in cases TITLE 7. provided by law. 46 TITLE VII. GENERAL PROVISIONS CONCERNING ACTIONS RELATING TO REAL PROPERTY. SEC. 1. Reversioners, &c. when to be admitted as parties. 2. Action by reversioner, &c. after default of tenant. 3. Restitution how made on reversal of judgment. 4. When wife may be admitted to defend alone. 5. Wife to recover land lost by default of husband. 6. Recoveries of tenants for life, &c. void as to reversion, &c. 7. Restitution to be awarded to reversioners, &c. 8. Executions not to be avoided by feigned recoveries. 9. Lessees for years may falsify recoveries. 10. Remedies of parties recovering against lessee, &c. for waste. 11. Heirs, &c. may bring joint or several actions. 12. Guardians for infant defendants in actions relating to lands. 13. When court may grant party leave to survey lands. 14. Contents of order; copy to be served on owner of lands. 16. Writs of view abolished; bills of particulars how obtained. 22. Execution for costs, may be included in writ of possession. &c. when to $1. If any tenant for life, in dower, or by the curtesy, be im- Reversioners, pleaded, and the person to whom the reversion or remainder apper- be admitted. tains, shall come into court before any trial shall have been had in such action, or before judgment by default therein, and pray to be received to defend his right, he shall be received for that purpose, and shall be permitted to plead to the action, upon such terms as the court shall deem just.47 after default S2. If any tenant for life or years, make default of give up any When to sue lands demanded, so that judgment be given on such default or sur- of tenant. render, the heir or person to whom the reversion or remainder of such lands appertains, may, after the death of such tenant, have an action of ejectment to recover the same lands. on reversal of § 3. If a judgment be reversed, the tenant who lost by the first Restitution judgment, if he be in life, shall be restored to the possession of the judgment. tenements so lost, with the issues in the mean time, and the party pursuing, to the arrearages of rent, if any be due, for the same tenements; and if such tenant be dead at the time of the judgment given upon any writ of error, restitution shall be made to the party pursuing, with the issues after the death of the said tenant, together with the arrearages of rent, if any were due, in the life time of the said tenant.48 (46) 1 R. L. p. 524, § 22. (47) Ib. p. 183, § 5. (48) Ib. § 6. TITLE 7. $ 4. When a husband and wife shall be impleaded, if the husband absent himself, and will not defend the wife's right, if the wife apadmitted to ply before judgment, she shall be admitted to defend without her husband.49 Wife to be defend, &c. Wife to re cover after default of husband. Certain recoveries void sions, &c. $5. If the husband lose by default, any land which was the right of his wife, the wife, after the death of her husband, may have an action of ejectment to recover the same, and the judgment by default shall be no bar to such action.49 $ 6. All recoveries had by agreement of the parties, or by fraud, us to rever- against any tenant for life, in dower, or by the curtesy, of any lands, tenements or hereditaments, shall be void against all persons to whom any reversion or remainder of such lands may appertain, and against their heirs, unless the appearance of the person having such reversion or remainder, shall have been duly entered in the court where such recovery shall be had. But this provision shall not extend to any person who shall recover any lands, tenements or hereditaments without fraud, by reason of any former right or title.49 reversioners, &c. Restitution to S7. If the person to whom the reversion or remainder of any estate belongs, shall establish that any recovery against the tenant for life, in dower, or by the curtesy, was obtained by fraud, restitution of the same tenements shall be made to him, with the issues and arrearages, as herein before provided; but such tenant may have a writ of scire facias upon the same judgment so reversed or given on any writ of error, if he desire, and may therein traverse the fraud, and not otherwise.5 50 Feigned recoveries. Rights of les sees for years. Rights of parties recovering. $8. No execution shall be avoided by means of any feigned recovery, but all persons entitled to have execution of any lands, tenements or hereditaments, shall have the like means to avoid and falsify the same recoveries, as a tenant of the freehold, who was neither party nor privy to such recovery, has by the course of the common law. 51 $ 9. A lessee for years may falsify for his term only, recoveries, in the same manner as a tenant of the freehold who was neither party nor privy to the recovery, may do by the course of common law. And such lessees, and their personal representatives and assigns, notwithstanding any recoveries that may be so falsified, shall hold their terms according to their demises, as if such recovery had not been had. 51 $10. After any recovery had, the recoverers, their heirs and assigns, shall have the like remedies against any lessees for years, their representatives and assigns, for any rents or services reserved, coming due after such recoveries, and also like actions for waste done after such recoveries, as the lessors might have had if such recoveries had not been made. 51 (49) 1 R.L. p. 183, § 3, 4 & 9. (50) Ib. § 6. (51) Ib. § 10. |