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Title 36. Forcible Entry and Detainer. 235

state of Rhode-Island shall adopt and adhere to similar regulations. sect. 29. Whosoever shall first make a wear for catch- Fisherie, on ing fish, on any flat, within any river, cove, creek or flats. harbor, shall not be interrupted, by any other person's making a wear on the same flat, or in the way or course of the fish coming or passing to said wear first built, nearer than three quarters of a mile, without liberty from the county court; and every wear, set up contrary to this act, shall be a common nuisance; and any person may remove the same as such. sect. 30. Every town shall have authority, in town Towns emmeetings, to make by-laws for the regulation of fisheries . . in the ponds within their respective limits, and for the *io. aws preservation of the fish therein, and to impose such pen- fisheries in alties, for the breach thereof, as they shall think proper: Pond". provided, that no penalty shall exceed the sum of seventeen dollars, and no by-law shall be contrary to the laws of the state, nor extend to ponds that are private pro

perty.
TITLE 36. Forcible Entry and Detainer.

An Act directing proceedings against Forcible
Entry and Detainer.

E it enacted by the Senate and House of Representatives, in General Assembly convened, Mode of That whenever any person shall make forcible entry ... o: into any houses, lands or tenements, and with a strong forcible entry hand shall detain the same ; or, having made a peaceable and detainer. entry, without the consent of the actual possessor, shall hold and detain the same, with force and strong hand; the party thus ejected, or held out of possession, may exhibit his complaint to either of the judges of the county court, and to one justice of the peace, in the county where such houses, lands or tenements are situated, who are qualified to judge between the parties, stating the injury of which he complains. And such judge and justice shall, forthwith, issue a summons to the party complained of directed to some proper officer, to notify, and require him to appear at such place as they shall appoint, in the town where the injury complained of was done, within eight days, at least, to answer to the matters contained in such complaint; which summons shall be served upon him, by reading, or by leaving a copy at his usual place of abode, six days, exclusively, before the day appointed for trial ; and if, after service of such summons, the party s complained of shall not appear and defend, such judge

SECT. 1.

236

Jury to be summoned.

Trial.

Judgment.

No appeal.

Limitation.

Judgment not to affect the title.

Treble damages to be recovered in action of trespass.

Title 36. Forcible Entry and Detainer.

and justice shall proceed in the same manner as if he
were present.
sect. 2. And such judge and justice shall make out a
warrant, under their hands, directed to the sheriff of the
county, or his deputy, or to either of the constables of
the town where the injury complained of was done, (such
officer not being interested in the cause, or so related to
either of the parties that he could not judge.) command-
ing him to summon twelve good and lawful freeholders of
the county, qualified to act as jurors, to appear at the
time and place appointed for the trial; which jury shall
be duly empanneled, and sworn according to law, to en-
quire into the forcible entry, or forcible detainer, com-
plained of: and if a sufficient number of jurors, qualified
to sit in the cause, do not appear, the sheriff or constable
shall forthwith return a sufficient number of the freehold-
ers of the county, qualified to act as jurors, to fill the
panel: and said judge and justice shall proceed to make
enquiry, and shall hear all the proper evidence offered by
the parties: and if the jury find, that a forcible entry has
been made, into the houses, lands or tenements, or that
the same are detained, with force and strong hand, as
complained of then such judge and justice shall render
judgment, that the complainant shall be restored to, and re-
seised of the premises, and shallaward a writ of restitution
accordingly; and the complainant shall recover his lawful
costs, of the person or persons complained of, and execu-
tion shall be granted therefor accordingly. But if the
jury shall find the person or persons complained of, not
guilty, then costs shall be taxed in their favor, against the
complainant, and execution granted for the same.
sect. 3. And no appeal shall be allowed from the
judgment of such judge and justice; nor shall any com.
plaint or action be prosecuted, for a forcible entry or de-
tainer, but within six months after the making of the
entry complained of. -
sect. 4. The judgment that shall be rendered, in such
prosecutions, shall not affect the title to such houses, lands,
or tenements, and shall not be a bar to a proper action,
brought for the trial of the same.
sect. 5. And the party aggrieved shall recover treble
damages, and costs of suit, by action of trespass, against
the defendant or defendants, if it be found, by verdict of
the jury, or otherwise, in due form of law, that he or they
entered into houses, lands, or tenements, by force, or after
entry, held the same, by force. (1)

(1) An act was passed as early as 1698, concerning, and to remove, forcible enenabling justices of the peace to enquire tries and detainers, and to proceed according to the rules and methods, in such cases provided, by the laws of England. In 1722, an act was passed, similar to a statute in England, and which continued in force, with few modifications, until this revision. But as the statute gave no intelligible definition of a forcible detainer ; required the Justices of the peace to repair to the place, to view the force; that the party should proceed by information qui tam; with many other inconvenient regulations,

so that a proceeding under it had usually been attended with disficulty; it was thought best to introduce the present remedy, of a mere civil nature, to give the party a power to regain possession of lands in defined cases, when forcibly taken or detained from him; and if the entry or detainer should be with a force and violence amounting to a breach of the peace, to leave the party committing it to a criminal prosecution.

TITLE 37.

Foreign Attachment.

An Act authorizing the collection of debts, by
Foreign Attachment.

I E it enacted by the Senate and House of Rep- resentatives, in General Assembly convened, That whenever the goods or effects of an absent or absconding debtor, are concealed in the hands of his attorney, agent, factor, or trustee, so that they cannot be found, or come at, to be attached ; or where debts are due from any person to an absent or absconding debtor; it shall be lawful for any creditor to bring his action against such absent and absconding debtor, and insert in his writ a direction to the officer to leave a true and attested copy thereof, at least fourteen days before the session of the court, to which it is returnable, with such absent or absconding debtor's attorney, agent, factor, trustee, or debtor, or at the place of his or their usual abode : and it shall be the duty of the officer serving such writ, to leave a copy thereof, according to such direction ; and from the time of leaving such copy, all the goods and effects in the hands of such attorney, agent, factor, or trustee, and any debt due from such debtor to the defendant, shall be secured in their hands, to pay such judgment, as the plaintiff shall recover, and may not otherwise be disposed of, by such attorney, agent, factor, trustee or debtor: and such service shall be sufficient notice to the defendant to enable the plaintiff to bring the action to trial, unless the defendant be an inhabitant of this state, or has some time resided therein; and then a like copy shall be left at his last usual place of abode. sect. 2. Such attorney, agent, factor, trustee, or debtor, upon his desire, shall be admitted to defend his principal in such suit : but if the defendant be not in this state, and does not appear, by himself, or attorney; and the attorney, agent, factor, trustee, or debtor, with whom such copy is left in service, does not appear to defend,

SECT.

Effects and
debts of ab-
sconding debt-
ors attachable
in the hands
of agent or
debtor.

Service of the writ.

Agent may defend his principal.

Continuance of suits.

How to proceed with the execution.

Scire-facias.

Mode of trial.

then the court shall continue the action to the next court, and may order notice to be given, by publishing the pendency of the suit, in some newspaper, or otherwise, as they think proper; and if the defendant should not then appear, the court may, if they judge proper, order the action to be continued once more, to give an opportunity to notify the defendant of the pendency of the suit; and then, unless some special matter be alleged for further delay, the cause shall come to trial; but when the action is brought before a justice of the peace, in case the defendant shall not be in this state, and no attorney, agent, factor, trustee, or debtor appear to defend him, such justice of the peace shall adjourn the cause for a term not less than three, nor more than nine months ; and then, unless special reasons be given for a further delay, such action shall come to trial. And if judgment be rendered in favor of the plaintiff, all the goods and effects in the hands of such attorney, agent, factor, or trustee, and the debt due from such debtor, shall be liable to pay the same ; and the plaintiff, on praying out an execution, may direct the officer serving the same, to make demand of such attorney, agent, factor or trustee, of the goods and effects of the defendant, or principal, in his or their hands, whose duty it shall be to expose the same to be taken on the execution; and also to make demand of such debtor, of any debt due to the defendant, whose duty it shall be to pay the same : and if such attorney, agent, factor, or trustee, shall have, in any manner, disposed of the goods and effects of the principal, in his hands, when the copy of the writ was left with him; or shall not discover, expose and subject them to be taken on the execution ; or if such debtor shall not pay to the officer, when demanded, the debt due to the defendant, at the time the copy of the writ was left with him ; such attorney, agent, factor, trustee, or debtor shall be liable to satisfy such judgment out of his own estate, as his proper debt, if the goods or effects, or debt, be of sufficient value or amount; if not, then to the value of such goods or effects, or to the amount of such debt. And a scire-facias may be taken out from the clerk of the court, where the judgment was rendered, to be served upon such attorney, agent, factor, trustee, or debtor, requiring him to appear before such court, and shew cause, if any he have, to the contrary: and it shall be lawful for the plaintiff to require, and the defendant shall have right to disclose, on oath, whether he has any of the goods or effects of the absent or absconding debtor in his hands, or whether he is indebted to him; and the parties may introduce any other propertestimony, respecting such fact. And if it be found,

that the defendant has the goods or effects of such absent
or absconding debtor in his hands, or is indebted to him,
or if he makes default of appearance, or refuses to dis-
close, on oath, judgment shall be rendered against him,
as for his own debt, to be paid out of his own goods or es-
tate, with lawful costs; and execution shall be granted
accordingly: Provided, that if it appear on the trial, that
the goods or effects are of less value, and the debt of less
amount than the judgment recovered against the absent
or absconding debtor, then judgment shall be rendered
to the value of the goods, or to the amount of the debt ;
and if it appear, that the defendant has no goods or effects
in his hands, of such debtor, or is not indebted to him,
then he shall recover his lawful costs.
sect. 3. When a scire-facias shall be brought against
any attorney, agent, factor, trustee, or debtor of an ab-
sent or absconding debtor, on a judgment rendered by a
justice of the peace, such scire-facias shall be signed by
the justice rendering the judgment: and where the de-
mand does not exceed thirty-five dollars, shall be made
returnable before the same justice of the peace; but
where the demand shall exceed thirty-five dollars, the
same shall be returnable before the county court, in that
county where the plaintiff or defendant dwells : and if the
justice, rendering such judgment, shall be removed from
office, by death, or otherwise, before any scire-facias is
taken out thereon, such writ may be signed by, and (when
the demand does not exceed thirty-five dollars,) be made
returnable before, any justice of the peace, as in other
cases; but where the demand exceeds thirty-five dol-
lars, such writ shall be made returnable before the coun-
ty court, as aforesaid.
sect. 4. The taking of any goods or effects of any ab-
sent or absconding debtor, or any debt due to him as
aforesaid, by process and judgment of law, out of the
hands of his attorney, agent, factor, trustee or debtor, by
any of his creditors, shall forever discharge him or them
from any suit or demand for the same : and if sued, for any
thing done in compliance with this act, he or they may
plead the general issue, and give this act and the special
matter in evidence.
sect. 5. When it shall appear on the hearing of the
scire-facias, that the debt due to the principal is not yet
payable, the court shall direct the execution to be stay-
ed, until the time the debt would have become payable;
and when the debt was not payable at the time the de-
mand was made, on the execution, the court shall allow
the garnishee his reasonable costs for defending against
such scire-facias, to be deducted out of the debt so due.

When judgment shall be rendered against garnishee.

Limitation of amount of judgment.

When scirefacias shall be returnable before justice of the peace.

Agent or debtor discharged from principal.

When debt is not due, execution to be stayed.

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