two years thereafter a like election for delegate to congress shall take place. cancy in that office. SECT. 3. That when any vacancy shall happen in the In case of vaoffice of delegate to congress from this territory, it shall be the duty of the governor to issue his proclamation, appointing a day to hold a special election to fill such vacancy. SECT. 4. This act to take effect from and after its passage. when Approved April 21, 1862. W. JAYNE, Governor. Take effect, ENTRIES AND DETAINERS. CHAPTER 34. AN ACT TO PROVIDE A REMEDY FOR FORCIBLE ENTRIES AND Be it enacted by the Legislative Assembly of the Territory of Dakota : To make no other than law SECTION 1. No person or persons shall hereafter make an entry into lands, tenements, or other possessions, but in cases ful entry. where entry is given by law; and in such cases not with strong hands nor with a multitude of people, but only in a peaceable manner; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine. SECT. 2. Any justice of the peace shall have authority to inquire as hereinafter directed, as well against those who may make unlawful or forcible entry into lands, tenements, or other possessions, and detain the same, as against those who, having lawful and peaceable entry into lands, tenements, or other possessions, unlawfully and forcibly detain the same; and if it be found, upon such inquiry, that an unlawful or forcible entry hath been made, and that said lands, tenements, or other possessions are unlawfully detained by force and strong hands, or that the same, after a lawful entry, are so held or detained unlawfully, then such justice shall cause the party complaining to have restitution thereof. Justice may manner of entry. inquire into Justice to issue summons on complaint. Summons, how made. Justice to hear and determine. Proviso. If person against whom complaint is issued be absent from county. SECT. 3. When any complaint shall be made in writing to any justice of the peace, of any such unlawful or forcible. entry or unlawful detainer, said justice shall issue a summons, directed to the sheriff or any constable of the same county, commanding him to summons the person or persons against whom such complaint shall have been made, to appear before the said justice on a day in such summons named, which shall not be less than six nor more than ten days from the day of issuing said summons, and at the place therein named. SECT. 4. Such summons shall be served the upon person or persons, against whom the same is issued, by delivering a certified copy thereof to such person or persons, at least three days before the return day thereof; and the officer serving the same shall make a special return of the time and manner of serving said summons. SECT. 5. After the return of the said summons served as hereinbefore provided, and at the time and place appointed in said summons, the said justice shall proceed to hear and determine said complaint: Provided, That if either party shall call for a trial by jury, the said justice shall issue a venire, in the same manner, upon the same terms, as in other cases provided for trial by jury in justices' courts; and such jury shall be sworn as in other cases. SECT. 6. If at the time of making said complaint it shall be made to appear that the person or persons against whom said complaint is made, or either of them, are absent from the county, it shall be the duty of the justice before whom the same is made, to issue his summons as hereinbefore provided, and make the same returnable not less than six, nor more than ten days from the time of issuing the same, and such summons may be served by leaving a true and attested copy thereof at the last and usual place of such person or persons' abode, not less than six days before the return day thereof; such copy shall be left with some member of the family, or some person residing at such place, of suitable age and discretion, to whom the contents shall be explained by the officer leaving the same; and the said officer shall make a special return of the time and manner of issuing said summons; and the suit shall thereafter proceed the same as though a personal service were had of such summons. SECT. 7. The justice may, at his discretion, adjourn any Justice may adjourn trial, trial under this act, not exceeding six days; but in all cases SECT. 8. The deposition of any witness, whose testimony of deposition. may be considered necessary by either party, may be taken for the same reason, in the same manner, and with the same effect as is provided by law for taking of depositions to be used in justices' courts. found guilty. SECT. 9. If, upon the trial of any complaint under this If defendant act, the justice or jury shall find that the defendant or defend- If not guilty. ants, or either of them, are guilty of the allegation in the complaint, the said justice shall thereupon enter judgment for the complainant, to have restitution of the premises, and shall impose such fines, not exceeding one hundred dollars, considering all the circumstances, as he may deem just, and shall tax the costs for the complainant, and may upon execution in favor of said complainant, for such costs as in other actions ex delicto, and the said justice shall also award and issue a writ of restitution; but if the said justice or the jury find that the person complained of is not guilty, the complaint, in their opinion, not having been supported, the said justice shall tax the costs against the complainant, and issue execution therefor. agree, new jury neled. SECT. 10. If the jury impanneled as aforesaid, cannot If jury cannot agree upon a verdict, the justice before whom the trial is to be impanpending, may discharge said jury, if in his opinion they are not likely to agree upon a verdict, and issue a venire returnable forthwith, or at some other time agreed upon by the parties for the purpose of impanneling a new jury. SECT. 11. The complainant of any forcible entry, or any If complainant recover, it may be for treble damages and costs. Proviso. If tenant or person holding over refuse to quit possession or pay rent. Proviso. Preceding section does not unlawful detainer, as aforesaid, who shall recover against the person complained of as aforesaid, shall be entitled to recover treble damages, with costs of suit, by a civil action against the offender or offenders, to be brought before any justice of the peace or court of record, for that purpose: Provided, always, That nothing contained in the foregoing part of this act, shall be construed to extend to any person or persons, who have had quiet, peaceable, and uninterrupted occupation of any lands, tenements, or other possessions, otherwise than by devise or lease, for the period of three whole years, next before the entering of such complaint, any thing in this act to the contrary notwithstanding. SECT. 12. When any person shall hold over any lands, tenements, or other possessions, after the sale thereof on execution against such person and expiration of the time for redemption, or after a sale thereof under a mortgage upon foreclosure by advertisement, or after the termination of the time for which they are demised or let to him or her, or to the person under whom he or she holds possession, or contrary to the conditions or covenants of the lease or agreement, under which he or she holds, or after any rent shall have become due, according to the term of such lease or agreement, and shall remain unpaid for the space of three years, in all such cases, if the lessor, his heirs, executors, administrators, assign, agent, or attorney, shall make demand in writing of such person or tenant holding over, that he or she shall deliver possession of the premises as aforesaid, and if such tenant or person holding over shall refuse, or neglect for the space of three days, after such demand, to quit the possession of such lands or tenements, or to pay the rent thereof, so due and unpaid as aforesaid, upon complaint thereof to any justice of the peace of the county, the justice shall proceed to hear, try, and determine the same, in the same manner as in other cases hereinbefore provided for: Provided, That in all cases mentioned in this section, the justice shall impose no fine upon such tenants or persons holding over. SECT. 13. The preceding section shall not extend to any extend to whom. person who has or shall have continued in possession three years after the termination of the time for which the premises were demised or let to him or her, or those under whom he or she claims, or after the sale thereof as aforesaid, or to any person who continues in possession three years quietly and peaceably by disseizin, any thing in this act to the contrary notwithstanding. Complainant SECT. 14. The complainant shall be entitled to bring a may recover civil action against the person complained of, and who shall what damages. be found guilty on the trial, and may recover treble damages from the time of notice to quit the premises, and until that time damages only. Jurors or wit dence. Penalty. SECT. 15. Every person summoned as a juror, or subpœ- nesses refusing to naed as a witness, who shall not appear, or appearing, shall serve or give cry. refuse to serve or give evidence, in any prosecution instituted by virtue of this act, shall forfeit and pay for every such default or refusal, unless some reasonable cause be assigned, such fine, not exceeding ten dollars, as the said justice shall think proper to impose. Of fines, and disposition of SECT. 16. All fines imposed by virtue of this act, shall be paid to the county treasurer of the county where the action is same. commenced, for the use of common schools, and the said justice may commit the person against whom the fine is imposed, to the common jail of the county until such fine be paid, or the said justice may issue an execution therefor, as in other cases ex delicto. SECT. 17. If either party shall feel aggrieved by the verdict of the jury or decision of the justice, he may appeal within ten days, as in other cases tried before justices of the peace, except his bond shall be with two or more sufficient sureties, to be approved by said justice, conditioned to pay all costs of such appeal, and abide the order the court may make therein, and pay all rent and other damages justly accruing to said complainant during the pendency of such appeal. Of appeals. Upon appeal SECT. 18. Upon the taking of such appeal all further pro- further proceedceedings in the case shall be thereby stayed, and the appellate ings stayed. court shall thereafter issue all needful writs and processes, to carry out the provisions of this act, according to the true intent and meaning thereof. SECT. 19. If a writ of restitution shall have been issued previous to the taking of any appeal, as provided in this act, the justice shall forthwith give the appellate a certificate of the allowance of such appeal, and upon the service of the [same upon the] officer having such writ of restitution, the If writ of resti tution has been issued previous to appeal. |