Jury how formed and &c. $32. Such summons shall be served, either, 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. $ 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 applicant to such magistrate, into the full possession thereof.88 $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.S 89 $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 and sworn. How kept. When discharged. $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 $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 (88) Laws of 1820, p. 176, § 1. (89) Ib. § 2. (90) Ib. § 3. Warrant of $ 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 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 ed. $ 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 ments. S41. Any magistrate before whom such application may be pend- Adjourn ing, 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. &c. for witnesses. $42. Any magistrate before whom such application may be pend- Subpoena, ing, may, at the request of either party, issue his subpoena, requiring 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 subpoena, 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. ing warrant. S43. Whenever a warrant shall be issued as aforesaid, by any Effect of issusuch magistrate, for the removal of any tenant from any demised premises, 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 rant in cer $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 (91) Laws of 1820, p. 176, § 2. (92) Ib. § 3. 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. Ib. Certiorari to remove pro 93 $ 46. When such application is founded upon an alleged sale by execution, of the premises occupied by the defendant in such execu tion, 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 ceedings. 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. Awarding restitution and costs. Costs: dama. ges in certain cases. Rights of landlords, &c. $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. $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. (93) Laws of 1820, p. 176, § 9. TITLE XI. OF DISTRAINING CATTLE AND OTHER CHATTELS DOING DAMAGE, Sec. 1. Cattle distrained where kept; application to fence-viewers. 8. To certify damages and determine disputes about fences. 4. When beasts to be put in pound, certificate to accompany them. 6. Application of proceeds of sale. 7. Beasts when to be discharged by pound-master. 8. Inanimate goods where to be kept. 9. Damages how appraised; value of property to be certified. 10. Notice of sale, &c. to be posted by distrainer. 11. In what case notice to be published in newspaper. 12. If owner known, &c. notice to be served on him. 13 & 14. When sheriff, &c. to sell property; sale how conducted. 15. Application of proceeds of sale. 16. Surplus to be paid to county treasurer. 17. Common pleas to order payment of balance to owner. 18. In case of doubt, to require bond from applicant. 19. Bond when to be sued by other claimants; proceedings. 20. Notice to be given of sale, by all officers distraining. 21. Property to be appraised and appraisal certified. 22. Papers to be filed by officer after making sale. 23. Penalty on officer disobeying last section. 24. Application of proceeds of sale; surplus to county treasurer. 25. Proceedings by owner to obtain surplus. TITLE 11. tle distrained, S1. When any distress shall be made of any beasts doing damage, Keeping catthe person distraining shall keep such beasts in some secure place &c. 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 ers to ap gra &c. $ 2. Such fence-viewers shall thereupon immediately repair to the Fence-viewplace, and view the damage done; and they may take the evidence praise dumaof 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 To certify them; suffi S3. The said fence-viewers shall ascertain and certify, under their hands, the amount of such damage, with their fees for their services; ciency of and if any dispute shall arise, touching the sufficiency of any fence fences, &c. 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. bensts in S 4. Within twenty-four hours after the said damages shall be so Putting appraised, unless the amount so ascertained, and the fees of the fenceviewers, shall have been paid, the person making such distress, shall (94) 2 R. L. p. 134, § 19. pound. TITLE 11. cause the beasts distrained to be put in the nearest pound in the same county, if there be one, there to remain until the same be sold, as herein after directed, or until replevied, according to law, or until the damages so certified, and the fees of the fence-viewers and poundmaster, be paid; and he shall deliver the certificate of the fence-viewers to the keeper of such pound. The owner of such beasts may give them their feeding, without disturbance. Sale of beasts; no tice. Application of proceeds of sale. Beasts when to be dia charged. Keeping in animato goods. Appraising damages, &c. Notice to bo posted. $5. The pound-masters of the several cities and towns of this state, shall receive and keep the beasts so delivered to them, in the public pound, and unless the same shall be replevied or discharged, according to law, within six days, such pound-master shall sell such beasts, or so many of them as shall be necessary, at public vendue, giving forty-eight hours' notice of such sale, by advertisement, to be fixed up at such pound, and at the nearest public place.95 $6. From the proceeds of such sale, the pound-master may retain sufficient to pay the amount of his fees and his charges for keeping such beasts, and the charges of such sale; and he shall pay to the person impounding such beasts, the damages so certified, with the fees of the fence-viewers; and if there be any surplus, the same shall be paid to the owner of such beasts. If no owner appear within one year after such sale, and claim such surplus, the same shall be paid to the overseers of the poor of such city or town, for the use of the poor thereof.95 $7. Every pound-master with whom any beasts shall be impounded, shall discharge such beasts, on being paid, 1. The amount of the damages so certified by the fence-viewers: 2. The fees of the fence-viewers: 3. The fees of the pound-master, with his reasonable charges for feeding such beasts, if fed by him, not exceeding six cents for each beast, for every twenty-four hours.95 S8. When any person shall be authorised by law to distrain any inanimate goods or chattels doing damage, he shall keep the same in some safe and convenient place, until the damage shall be appraised, and the goods be sold or otherwise disposed of. $9. He shall apply to any two fence-viewers of the town, to appraise the damages sustained by him; who shall proceed therein, in the same manner and with the same powers, as herein before provided, with respect to cattle doing damage; and in addition, they shall estimate and certify the value of the property distrained. $10. The distrainer shall affix a notice in three public places of the town, for ten days, as follows: 1. Specifying therein the property distrained, and the amount of damages certified: (95) 2 R. L. p. 134, § 21. |