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Title 36. Forcible Entry and Detainer.

state of Rhode-Island shall adopt and adhere to similar regulations.

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SECT. 29. Whosoever shall first make a wear for catch- Fisheries 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 powered to make by-laws in the ponds within their respective limits, and for the regulating preservation of the fish therein, and to impose such pen- fisheries in alties, for the breach thereof, as they shall think proper: ponds. 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 property.

TITLE 36. Forcible Entry and Detainer.

An Act directing proceedings against Forcible
Entry and Detainer.

SECT. 1.

E it enacted by the Senate and House of Representatives, in General Assembly convened, Mode of proThat whenever any person shall make forcible entry ceeding in 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 complained of, shall not appear and defend, such judge

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Jury to be summoned.

Trial.

Judgment.

No appeal.

Limitation.

Judgment not to affect the

title.

ges to be re

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,) commanding 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 enquire into the forcible entry, or forcible detainer, complained 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 freeholders 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 reseised of, the premises, and shall award a writ of restitution accordingly; and the complainant shall recover his lawful costs, of the person or persons complained of, and execution 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 complaint or action be prosecuted, for a forcible entry or detainer, 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 Treble dama- 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)

covered in action of tres

pass.

(1) An act was passed as early as 1698, enabling justices of the peace to enquire

concerning, and to remove, forcible entries and detainers, and to proceed accord

ing 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 difficulty; 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.

SECT. 1.

BE

Effects and

debts of absconding debtors attachable

in the hands of agent or

debtor.

E it enacted by the Senate and House of Representatives, 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 Service of the copy thereof, according to such direction; and from the writ. 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 debt- Agent may or, upon his desire, shall be admitted to defend his prin- defend his cipal in such suit but if the defendant be not in this principal. 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,

Continuance of suits.

How to proceed with the execution.

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, Mode of trial. 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 proper testimony, respecting such fact. And if it be found,

Scire-facias.

rendered a

that the defendant has the goods or effects of such absent When judg or absconding debtor in his hands, or is indebted to him, ment shall be or if he makes default of appearance, or refuses to dis- gainst garclose, on oath, judgment shall be rendered against him, nishee. as for his own debt, to be paid out of his own goods or estate, with lawful costs; and execution shall be granted accordingly: Provided, that if it appear on the trial, that Limitation of the goods or effects are of less value, and the debt of less amount of judgment. 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.

When scire

facias shall be

returnable before justice of

SECT. 3. When a scire-facias shall be brought against any attorney, agent, factor, trustee, or debtor of an absent or absconding debtor, on a judgment rendered by a justice of the peace, such scire-facias shall be signed by the peace. the justice rendering the judgment: and where the demand 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 dollars, such writ shall be made returnable before the county court, as aforesaid.

SECT. 4. The taking of any goods or effects of any ab- Agent or debtsent or absconding debtor, or any debt due to him as or discharged aforesaid, by process and judgment of law, out of the from principal. 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 When debt is scire-facias, that the debt due to the principal is not yet not due, exepayable, the court shall direct the execution to be stay- stayed. ed, until the time the debt would have become payable; and when the debt was not payable at the time the demand 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.

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