4. The complaint need not pray for treble damages, to warrant the court in so adjudging.-Hart v. Moon, ib., 161. 4. Such summons shall be served upon the person or persons against whom the same is issued, by delivering a certified copy thereof to such person or persons, at least two days before the return day thereof; and the officer serving the same shall make a special return of the time and manner of serving such summons. 5. After the return of the summons, served as hereinbefore provided, and at the time and place appointed in said summons, the justice shall proceed to hear and determine said complaint, unless either party shall demand a jury; in which case the justice shall issue a venire for a jury in the same manner and 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. 6. If, at the time of making of such 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 summans as hereinbefore provided, and the same may be served by leaving a certified copy thereof at the last and usual place of abode of such person or persons, not less than two days before the return day thereof, which 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 thereof shall be explained by the officer leaving the same, and the officer shall make a special return of the time and manner of serving said summons, and the suit shall thereafter proceed the same as though a personal service were had of such summons. 7. The justice may, at his discretion, adjourn any trial under this act, not exceeding ten days, and when the defendant, his agent or attorney, shall make oath that he cannot safely proceed to trial, for want of some material witness, naming him, that he has made due exertion to obtain such witness, and believes, if an adjournment be allowed, he will be able to procure the attendance of such witness, or his deposition, in time to produce the same upon trial; in which case, if such person or persons will give bond, with one or more sufficient sureties, conditioned to pay the said complainant for all rent that may accrue during the pending of such suit, and all costs and damages consequent upon such adjournment, the said justice shall adjourn said cause for such reasonable time as may appear necessary, not exceeding three months. 8. The testimony of any witness, which may be considered necessary by either party, may be taken in the same manner, and with the like effect, as is provided for the taking of testimony in other cases in justices' courts. 9. On the trial, the complainant shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession at the time of the forcible entry, or was entitled to the possession of the premises at the time of a forcible holding over. The defendant may show in his defense that he, or his ancestors, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of one whole year together next before the said inquisition, and that his interest therein is not then ended or determined, and such showing shall be a bar to the prosecution, and in no case when the title of land is necessarily involved, shall a justice of the peace have cognizance. 1. The plaintiff in this action must show an actual peaceable possession in himself, at the time of the entry.-Treat v. Stuart, 5 Cal., 113. 2. What is actual and what constructive possession, in many cases must be a question of fact for the jury.—O'Callaghan v. Booth, 6 Cal., 63. 3. When the plaintiff in an action for a forcible entry for the front of a town lot, proved that he had a small house on the rear of it, held, sufficient to warrant a jury in finding an actual possession of the whole lot.-Ib. 4. A mere survey and marking lines of a boundary, without an enclosure of the premises, is not a possession in law, unless made so by complying with the statute in reference to the mode of maintaining possessory actions on public land.—Bird v. Dennison, 7 Cal., April T. 5. The possession must be actual, peaceable and exclusive, and not a mere scrambling or interrupted possession, or the exercise of casual acts of ownership over the premises.-House v. Keiser, 7 Cal., Oct. T. 10. If upon the trial of any complaint under this act, the justice or jury shall find the defendant or defendants, or either of them, guilty of the allegations in the complaint, said justice shall thereupon enter judgment for the complainant to have restitution of the premises, and shall impose such fine, not exceeding one hundred dollars, considering all the circumstances, as he may deem just, and shall tax the costs for the complainant, and may issue execution therefor; 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 justice shall tax the costs against the complainant, and issue execution therefor. 11. If the jury empannelled cannot agree upon a verdict, the justice may, with the consent of the parties, discharge them, and issue a venire returnable forthwith, or at some other time agreed upon by the parties. 12. In all cases of a verdict by the justice or jury for the complain-minded ant, the damages shall be assessed as well for waste and injury com flaimed mitted upon the premises, as for the rents and profits during such de 18624582 tainer; and the verdict shall also find the monthly value of the rents ourdised, and profits of the said premises; and the complainant shall be entitled to recover treble damages against the persons against whom judgment has been rendered, which damages shall be assessed by the justice or jury, and when so assessed shall be trebled by said justice, and entered as a judgment in the cause upon which execution may issue. 1. A., in pursuance of the provisions of the "Act prescribing the mode of maintaining and defending possessory actions on lands belonging to the United States," entered upon unoccupied land, and marked it out, so that its boundaries might be easily traced, and commenced to build a house upon it, when he was ousted by B.; held, in an action of forcible entry, A. could recover the land from B., but without a fine or treble damages.-Stark v. Barnes, 4 Cal,, 412. 13. When any person shall hold over any lands, tenements, or Amended other possessions, after the termination of the time for which they are 18616582 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 be Alas, come due according to the terms of such lease or agreement, and Amended shall remain unpaid for the space of three days, in all such cases, if /8621/1.420. the lessor, his heirs, executors, administrators, assigns, agent or attor ney, |