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§ 1412. The notice or order, with a copy of the complaint, must be served by a sheriff or constable at least two days before the day of appearance, either,

1. By delivering it to the defendant personally; or

2. If he be absent from his place of residence, and from his usual place of business, by leaving it with some person of suitable age and discretion at either; or,

3. If such place of residence and business cannot be ascertained, or a person of suitable age and discretion there cannot be found, then by affixing it, in a conspicuous place, on the property, respecting which the proceeding is had, and also delivering a copy to a person there residing, if such person can be found.

The officer must make a return certifying the time and manner of service.

§ 1413. If at the time appointed, the defendant do not appear and defend, the justice, upon production of the complaint, and a certificate of service of a copy thereof and of the notice or order, must give judgment that the defendant be removed from the property, and the plaintiff be put into the possession thereof.

§ 1414. The defendant may at the time for appearance, make and deliver to the judge an answer to the complaint, verified as in an action, denying any of the material allegations thereof, or alleging any defence he may have.

§ 1415. The qustions arising on the complaint and answer must be tried by the justice, or, if either party demand it, a jury must be summoned to try the question of fact, if any. The jury must be formed as in justices' courts, and the provisions of this code, respecting trials by jury in justices' courts, apply to trials by jury under this chapter.

§ 1416. If the justice find, or the verdict of the jury be rendered, in favor of the plaintiff, the justice must give judgment, that the defendant be removed from the property, describing it, and the plaintiff put in the possession thereof, and also that the defendant pay the costs specified in the order.

§ 1417. For the execution of a judgment of removal, a warrant must be signed by the justice and delivered to the sheriff of the county, or to the marshal or constable of the city or town in which the property is situated, commanding him to remove the defendant from the property, and put the plaintiff into possession thereof, and to collect the costs of the proceedings specified in the warrant. The officer to whom the warrant is directed and delivered, mùst execute the same as prescribed in section 1426, and must collect the costs in the same manner, as upon a judgment in a justices'

court.

§ 1418. Upon the request of either party, the justice may adjourn the trial, for the purpose of enabling such party to procure his witnesses, whenever it appears to

be necessary, and due diligence has been already used; but such adjournment cannot, without the consent of both parties, exceed ten days in the whole.

§ 1419. When a warrant is issued for the removal of a tenant, the contract under which he holds, if any, is thenceforth, terminated, and the relation of landlord and tenant between the parties, ceases, except as provided in section 1422.

§ 1420. The tenant can stay the issuing of the warrant, when the application grows out of the failure to pay rent, if, before the warrant be actually issued, he pay the rent due, with costs, or give to the landlord security, approved by the justice, for the payment thereof in ten days.

§ 1421. Proceedings must be stayed, when the application grows out of a sale by execution or foreclosure of a mortgage, if, at any time before the issuing of the warrant, the occupant :

1. Pay the costs of the proceedings:

2. File with the justice an affidavit, that he claims the possession of the property, by virtue of a title acquired after the sale, which defeats the plaintiff's right of possession, or that he claims as guardian or trustee of another not made a defendant: and

3. Deliver to the plaintiff an undertaking, with sureties approved by the justice, to the effect, that he will

commit no waste during his occupancy of the property, and that if an action be brought by the plaintiff, within three months, for the recovery of the possession thereof, he will pay the costs, and such damages as may be recovered therein for withholding the posses

sion.

§ 1422. When the application is under the second subdivision of section 1410, if the unexpired term of the lease, under which the property is held, exceed one year at the time of issuing the warrant, and the notice or order was not personally served upon the tenant, he, or his successor in interest, or one having a lien upon the property, may, within sixty days after the execution of the warrant, pay or tender to the lessor or his successor in interest, or to the justice, the rent in arrear to that time, with interest and costs, and thereupon the premises must be restored to the tenant, or his successor in interest, who shall hold the same according to the terms of the original lease.

§ 1423. The warrant cannot issue until twenty-four hours after the judgment of removal, and during that time the defendant may appeal from the judgment. The appeal must be made, in the same manner, and to the same court, as from a justice's judgment, and the proceedings upon the appeal are the same.

§ 1424. If the appellant desire a stay of the proceedings, he must give security, by an undertaking executed by one or more sureties, approved by the justice or

the county judge, to the effect, that if the judgment be affirmed, the appellant will obey the judgment of removal, pay the value of the use of the property during the appeal, the costs specified in the warrant, and the costs of the appeal.

§ 1425. Upon an affidavit that the defendant is the tenant of another under a subsisting lease, the landlord may defend the proceeding either with or without the

tenant.

§ 1426. A warrant of removal can only be executed in the day time. The officer must execute it, by removing the defendant and any other person occupying, by his permission, any part of the property, as his tenant or otherwise, and putting the plaintiff into possession. But when the premises are underlet, the under-tenant can not be removed, unless the summons has either been served upon him or posted in a conspicuous place on the property.

§ 1427. The justice must make an entry, in his docket, of the proceedings, and such entry is evidence there of.

§ 1428. Upon the conviction of a defendant on an indictment, for forcible entry or forcible detention, in a court of sessions or a court of oyer and terminer, the court may award restitution, in the same manner as a justice upon a verdict pursuant to this chapter.

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