TITLE 9. service of such notice, the amount of rent due, together with of goods distrained. the costs of the distress, shall not be paid, and the goods distrained shall not be replevied according to law, the officer making such distress, shall summon two disinterested householders, who shall be sworn by such officer, well, truly and impartially to appraise the goods and chattels so distrained, according to the best of their understanding; and the said appraisers shall thereupon appraise the goods and chattels so distrained, and shall state the same in writing under their hands. Notice of sale; selling; pro ceeds. Distraining where no rent due. Irregularities in distraining. [505) Pleadings in certain actions. 1 R. L., 434, § 5; 2 D., 166; 9 W., 304. $26. Upon such appraisement being made, the officer conducting the proceedings, or any constable of the county, shall give five days' public notice of the sale of the goods and chattels so distrained, by affixing such notice on a conspicuous part of the demised premises, and also in two public places in the town; and on the day, and at the place appointed, shall proceed to sell the said goods at public auction, at the best price that can be obtained for the same, and shall apply the proceeds of such sale to the satisfaction of the costs and charges of the said proceedings, and of the rent for which the said goods were distrained; and shall pay over the surplus, if any, to the owner of the goods. $27. The owner, and his personal representatives, of any goods that shall be distrained for rent, pretended to be due, when in truth no rent is due, may, by an action of trespass, or trespass on the case, recover against the person so distraining, or his personal representatives, double the value of the goods so distrained. 1 R. L., 434, § 2 & 9; 6 Cow, 106; 13 J. R., 242. $28. When any distress shall be made for rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not therefore be deemed unlawful, nor the party making it a trespasser from the beginning; but the party aggrieved may maintain an action of trespass, or of trespass on the case, and may recover full satisfaction for the special damages he may have sustained by such irregularity or such unlawful act, with full costs of suit, and no more, unless tender of amends hath been made by the party distraining, or his agent, before such action brought; which tender shall prevent the recovery of any costs in such action. 1 R. L., 434, § 10; 13 J. R., 416. $ 29. In any action of trespass, or trespass on the case, brought in relation to any entry upon premises charged with rent or service, for the purpose of collecting or demanding such rent or service, or in relation to any distress, seizure or sale of any goods thereupon, the defendant may plead the general issue, and give the special matter in evidence. 1 R. L., 434, § 11. See Laws of 1846, ch. 274; 1833, ch. 200. ARTICLE SECOND. ART. 2. OF THE RECOVERY OF POSSESSION OF DEMISED PREMISES, FOR NON- SEC. 30. When ejectment may be brought for demised premises. 31. Judgment therein for plaintiff, and for costs. 32. When proceedings to stay on tender by tenant. 33. Premises to be restored to tenant on tender of rent, &c. 34. When lessee to be barred and lease annulled. 35. How mortgagees of lease may be relieved. 36. When lessee may file bill in chancery. 37. When proceedings at law may be enjoined. 38. Use of premises by lessor to be deducted. ment may $ 30. Whenever any half year's rent, or more, shall be in When ejectarrear from any tenant to his landlord, and no sufficient dis- be brought. tress can be found on the premises, to satisfy the rent due, if the landlord has a subsisting right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises; and the service of the declaration therein, shall be deemed, and stand instead of, a demand of the rent in arrear, and of a re-entry on the demised premises. 1 R. L., 440, § 23; 18 N. Y., 529; 13 N. Y., 299; 27 B., 176; 18 B., therein; S 31. If upon the trial of the cause, it shall be proved, or Judgment upon judgment by default, against the defendant, it shall costs. appear to the court by affidavit, that the landlord had a right to commence such action, according to the provisions of the preceding section, the plaintiff in such ejectment shall have judgment to recover the possession of the demised premises and his costs, and the court shall award execution therefor. 7 W., 521; 2 Du., 507. ceedings to S32. At any time before judgment in such cause, the When prodefendant may either tender to the landlord, or bring into stay the court where the suit shall be pending, all the rent in arrear at the time of such payment, and all costs and charges incurred by the lessor; and in such case, all further proceedings in the said cause shall cease. [506] to tenant. $ 33. At any time within six months after possession of the When premises to demised premises shall have been taken by the landlord, be restored under any execution issued upon a judgment obtained by him, in any such action of ejectment, the lessee of such demised premises, his assigns or personal representatives, may pay or tender to the lessor, his personal representatives or attorney, or into the court where the suit shall be pending, all the rent in arrear at the time of such payment, and all costs and charges incurred by the lessor; and in such case, all further proceedings in the said cause shall cease, and such premises shall be restored to the lessee, who shall hold and enjoy the demised premises, without any new lease thereof, according to the terms of the original demise. TITLE 9. When tenant to be barred, &c. Mortgagees how re lieved, Remedy in equity. Staying suit at law [50] Use of premises by lessor. S 34. In case the said rent and arrears, and full costs, shall remain unpaid for six months after the execution issued upon any judgment in ejectment shall have been executed, the lessee and his assigns, and all other persons deriving title under the said lease, from such lessee, shall be barred and foreclosed from all relief or remedy in law or equity, (except for any error in the record or proceedings,) and the said lessor or landlord, shall from thenceforth hold the said demised premises free and discharged from such lease or demise. $35. A mortgagee of such lease, or of any part thereof, who shall not be in possession of such demised premises, and who shall, within six months after such judgment obtained and execution thereon executed, pay all rent in arrear, and all costs and charges as aforesaid, and perform all the agreements which ought to be performed by the first lessee, shall not be affected by such recovery in ejectment. 1 R. L., 440, § 23. § 36. The lessee, or any person claiming any interest in such lease, may within six months after execution executed on such judgment in ejectment, file his bill for relief in a court of equity, but not after that time; and if relieved in such court, he shall hold and enjoy the demised premises, without any new lease thereof, according to the terms of the original demise. $ 37. In case of such bill being filed within the time aforesaid, the complainant shall not have or continue any injunction against the proceedings at law on such ejectment, unless he shall, at such time as the chancellor shall direct, bring into court such sum of money as the lessor shall in his answer have sworn to be due and in arrear, over and above all just allowances, and also all the costs taxed in the said suit, there to remain until the hearing of the cause, or to be paid to the lessor on good security, as the court may direct. 1 R. L., 440, § 24. $38. If the lessor shall have entered into the actual possession of the demised premises, the court may direct that so much, and no more, as he shall really have made of the said premises, during his possession thereof, or as he might, without wilful neglect, have made of the said premises, be deducted from the amount of the rent in arrear to such lessor and the costs of such ejectment; and the complainant shall be required to pay the balance, before he shall be restored to the possession of the said premises. 1 R. L., 440, § 24. See Laws of 1846, ch. 274; 19 N.Y., 100; 2 N. Y., 141; 27 B., 104; 19 B., 484; 18 B., 484. TITLE X. SUMMARY PROCEEDINGS TO RECOVER THE POSSESSION OF ART. 1. Of forcible entries and detainers. ART. 2.-Summary proceedings to recover the possession of land in other cases. ARTICLE FIRST. OF FORCIBLE ENTRIES AND DETAINERS. SEC. 1. Entries on land to be peaceable, &c. 2. Complaint of forcible entry to be made to county judge. 3. To be in writing; affidavit therewith; precept for jury. 4. Notice of precept to be served on defendant. 5. Jury to be sworn, and return inquisition. 6. Traverse of inquisition, when to stay proceedings. 7. When landlord may traverse inquisition. 8. Jury to be summoned to try traverse. 9. Jury to be sworn; proceedings before them. 10. When jury may be discharged and new one summoned. 11. Matters to be shown on trial by respective parties. 12. Judgment if defendant be found guilty. 13. Process for restitution and collection of costs. 14. To issue if there be no traverse within twenty-four hours. 15. Sheriffs to execute process; to take power of the county. 16. Notice to jurors; fine for not attending. 17. Subpoenas for witnesses; penalty for their neglect. 18. Certain officers to have like powers as county judges. 19. Certiorari to remove proceedings. 20. Bond to be given before allowance of certiorari. 21. Bond how returned: proceedings of supreme court. 22. When restitution to be awarded. 23. Criminal courts may award restitution in certain cases. ART. 1. be peacea 1. No entry shall be made into any lands or other posses- Entries to sions, but in cases where entry is given by law; and in such ble, &c. case, only in a peaceable manner, not with strong hand, nor with multitude of people. 1 R. L., 96, § 1. of forcible $ 2. Where any such forcible entry shall be made, or where Complaint the entry shall be made in a peaceable manner, and the pos- entry, &c. session shall be held by force, the person so forcibly put out, or so forcibly holden out of possession, and the guardian of any such person being a minor, may be restored to such possession, by making a complaint to a judge of the county courts of the same county, and by such proceedings as are herein after directed. 1 R. L., 96, § 2 & 6; 11 N. Y., 94; 24 B., 17; 9 W., 50. [508] writing; S 3. Such complaint shall be in writing, and shall be accom- To be in panied by an affidavit of such forcible entry or forcible holding affidavit: out, and that the complainant has an estate of freehold or for precept. term of years in the premises, then subsisting, or some other right to the possession thereof, stating the same; and the judge shall thereupon issue a precept to the sheriff or any constable of the county, commanding him to cause twenty TITLE 10. Notice of four inhabitants of the same county, duly qualified to serve as jurors, to come before such judge, at some time not less than two days thereafter, to inquire of such forcible entry, or such forcible holding. 1 R. L., 96, § 3; 11 N. Y., 96; 24 B., 17; 3 B., 401; 11 W., 158; 9 W., 52; 7 How. P. R., 166, 441. S 4. Such judge shall immediately cause a notice in writing, precept, &c. of the issuing of such precept, and of the time and place of the return thereof, to be served upon the party against whom such complaint is made, by delivering the same to such person; or if he cannot be found, by delivering such notice to some person of proper age on the premises; or if there be no such person, by affixing the same on the front door of the house, if there be one; or if there be none, on some other public and suitable place on the premises. Jury to be sworn; pro them. 13 J. R., 158. $5. At the day and place appointed for the return of the ceedings by said precept, the judge shall administer an oath to the persons returned summoned, who shall appear, not being less than thirteen and not more than twenty-three, well and truly to inquire into the matters complained of, and a true inquisition thereof to make. And the jury so sworn, shall proceed to make inquiry into the forcible entry or the forcible holding complained of, and may examine witnesses on oath to be administered by such judge; and shall make and sign their inquisition before the said judge, and deliver the same to him. 24 B., 16; 11 W., 159; 13 How. P. R., 446; 7 How. P. R., 441. Traverse of $ 6. If by such inquisition, it shall be found that forcible inquisition. entry, as aforesaid, was made, or that the entry being peace Ib. by landlord. [509] To be tried by jury. able, the possession was forcibly kept as aforesaid, the party complained against may traverse such inquisition, in writing, denying such forcible entry or forcible holding out, or alleging that he or his ancestors, or those whose estate he has in such lands, have been in quiet possession thereof for the space of three whole years next before such inquisition found, and that his interest therein is not ended or determined; and if the said traverser shall pay to such judge, the fees of summoning a jury to try such traverse, and the jurors' and judge's fees on such trial, such traverse shall stay all further proceedings on such complaint and inquisition, until the same be tried. 13 How. P. R., 446; 9 W., 52. $ 7. If any person shall make affidavit before such judge, that the party complained against is the tenant of such person, under a valid and then subsisting demise, he shall be permitted on payment of the fees specified in the last section, to traverse the said inquisition as landlord, in the same manner as is allowed to the party complained of, either with such party, or without him. $8. Upon such traverse being made, either by the party complained against, or by his landlord, the judge shall issue |