TITLE 1o. to the person entitled to the rent, for the payment thereof as it shall become due, as shall be satisfactory to the magistrate.93 Ib. Certiorari to remove pro $46. When such application is founded upon an alleged sale by execution, of the premises occupied by the defendant in such execution, 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 Jandlords, &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. 4. When beasts to be put in pound, certificate to accompany them. 5. Pound-master when to sell beasts; on what notice. 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 II. 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 ges, &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 them; suffi $3. The said fence-viewers shall ascertain and certify, under their To certify 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. beasts in $4. Within twenty-four hours after the said damages shall be so Putting appraised, unless the amount so ascertained, and the fees of the fence- pund. viewers, shall have been paid, the person making such distress, shall (94) 2 R. L. p. 134, § 19. [PART IIL 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; notice. Application of proceeds of sale. Beasts when to be dis charged. Keeping in animate goods. Appraising damages, &c. Notice to be 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.9 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 S7. 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 $8. 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. S9. 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. 2. Requiring the owner of such property to redeem and remove the TITLE 11. same, before the day therein appointed for the sale thereof: 3. Stating that such property will, on some day, at least ten days from the day of the first posting thereof, be sold, to pay such damages, and the costs and charges of the proceedings. published. S 11. If the value of the property distrained, as certified by the ap- When to be praisers, exceed fifty dollars, the distrainer shall publish a notice in the nearest newspaper, once in each week, for four weeks, similar to that required in the last section, except that the time of sale shall be at least thirty days from the day of the first publication of such notice. served on $ 12. If the owner of such property be known to the distrainer, or When to be if any person be known to him as claiming any interest in such pro- owner. perty, and if such owner or person reside within the county, the distrainer shall also serve a copy of such notice, within two days after the time of posting, or after the first day of the publication thereof, either personally on such owner or person, or in case of his absence from his usual or last place of residence, by leaving the same at such residence, with a proper person. riff, &c. to S 13. If such goods and chattels be not removed, and if the dama- When she ges so certified, with the fees of the appraisers and the expenses of sell. such notice, be not paid, at the time appointed in such notice for the sale, the distrainer shall apply to the sheriff of the county, or one of his deputies, or to any constable of the town, to sell such goods and chattels, and shall make and deliver to such officer, an affidavit showing his compliance with the provisions of this Title, and the original certificate of the appraisers. conducted. S14. Such officer shall thereupon proceed and sell the goods and Sale how chattels so distrained, in the same manner as on executions against personal property in civil cases, and with the like authority and effect, and shall be entitled to the same fees for his services. of proceeds $15. From the proceeds of such sale, such officer shall retain his Application own fees, and shall pay to the distrainer the amount of the damages so of sale. certified, and the expenses of such notices, and also all expenses that may have been necessarily incurred, in the safe keeping and preservation of such property; which expenses shall be ascertained and certified by any judge of the county courts, or by a justice of the peace of the county. county trea S16. If any balance shall remain, such officer shall pay the same Surplus to to the county treasurer, for the use of the owner of such property, or surer. his legal representatives. owner. $ 17. Upon the application of the owner of such property, or his To be paid to representatives, to the court of common pleas of the county, and on due proof, by affidavits, of such ownership, the said court shall order such balance to be paid to such owner, or his representatives, by the TITLE 11. county treasurer, after deducting a commission of five per cent. for receiving, keeping and paying over the same. When bond may be re quired. $ 18. If upon such application, the court entertain any doubt of the ownership of such property, before ordering such balance to be paid over, they shall require the claimant to execute a bond to the people of this state, in a penalty at least double the amount of such balance, and with sureties to be approved by such court, conditioned that he will pay to any person, who, in an action on such bond, commenced within two years from its date, shall establish his right to such balance, or to any part thereof, the amount to which he shall show such right, with interest. Suite on bond $19. Any person claiming such balance, or any part thereof, may by other claimants. Notice in all cases of distraining. Property to be appraised. Papers to be filed by offi eer. prosecute such bond, in the name of the people of this state, on the relation of such person, who shall, in all respects, be deemed the plaintiff therein, and be liable for the costs. If he establish his right to such balance, or any part thereof, in such action, he shall be entitled to recover such amount, with interest, as damages to be assessed for a breach of such condition, with costs of suit. The proceedings thereon shall be the same as in other actions on bonds, with conditions other than for the payment of money. But no judgment in favor of the defendants, shall be a bar to, or in any way affect, any action that may be brought on such bond, by any other person than the plaintiff against whom such judgment shall have been obtained. $20. When, by the provisions of any statute, any officer is authorised to distrain on any property, for any purpose whatever, and no special provision shall be otherwise made, he shall cause at least five days' notice of sale of such property to be given, by posting the same in three public places of the town, where such sale shall be made. $ 21. Before making any such sale, such officer shall also cause the property distrained, to be appraised by three disinterested freehold ers of the town, on oath; and such appraisal, with an inventory of the property distrained, shall be certified by the appraisers in writing. $ 22. Within ten days after any such sale, the officer making the same shall file in the office of the clerk of the town or city, where such sale was made, 1. His own affidavit, specifying the cause of such distress, and the amount of the penalty, tax, duty or other sum, for which the same was made: 2. Proof, by affidavit, of the notice herein required, having been given: 3. The inventory and certificate of the appraisers: Which papers, when so filed, shall be presumptive evidence of the facts therein contained. |