shall be most likely to give information to the persons interested, three weeks successively, the last of which publications shall be at least twenty days before the sitting of the court, to which such petition shall be made.

SECT. 5. If any of the facts, alleged in such petition, shall be controverted by any person interested, the objection to the petition shall be made in writing, by plea, to which the petitioner may reply or demur, so that the matter in dispute may be reduced to an issue, tried and determined, as in civil suits.

SECT. 6. If the issue be determined in favor of the petitioner, or if the person interested, after notice, do not appear, the court shall render judgment that partition be made, and shall appoint three judicious and disinterested [freeholders] (see § 14 of chap. 15) of such county, commissioners, to make partition of such estate, and to set off each share of the several persons interested, according to their respective titles, and shall award to the petitioner reasonable costs against the adverse party.

SECT. 7. If, on trial, it shall be determined that the petitioner has no right or share in the estate claimed, or that he holds a less share than he, in his petition, alleged, the adverse party shall recover, against the petitioner, reasonable costs; notwithstanding, if it shall appear that the petitioner holds a less share than he claimed in his petition, judgment shall be rendered that partition of such estate be made according to the title of the respective owners, as found on the trial.

SECT. 8. The commissioners, appointed by the court, shall be sworn faithfully to discharge the trust, and shall proceed to make partition of such real estate, by dividing and setting out to each owner his just share thereof, according to his right, by proper metes and bounds, and return to such court a full return of their doings, with a particular description of each portion of such estate, so divided, with a certificate of their having been duly sworn.

SECT. 9. The report of the commissioners, unless good cause be shown to the contrary, shall be accepted by such court and recorded, and a record thereof made in the office, where, by law, a deed of such estate is required to be recorded.

SECT. 10. The report of such commissioners, accepted and recorded as aforesaid, shall be valid and effectual, and each owner shall hold his share, so set off by such commissioners, in severalty.

SECT. 11. If any person, interested in such estate, shall be an infant or an insane person, or otherwise incapacitated to take care of his estate, the court shall not proceed to order partition of such estate, until a legal guardian is appointed for every such person, and due notice of the petition given to such guardian.

SECT. 12. If any person, interested in such estate, shall be absent from the state, and shall not appear after due notice given, as aforesaid, by his agent or attorney, the court shall appoint some discreet and disinterested person as agent, to such absent party, to act in his behalf, in making such partition.

SECT. 13. It shall be the duty of the commissioners, appointed to make partition, to give notice to each party interested, or his

agent or attorney, of the time when they will proceed to make such partition.

SECT. 14. When it shall appear to the court, that such real estate, or any portion thereof, cannot be divided without great inconvenience to the parties interested, they may order the same to be assigned to one of the parties, such party paying such sum of money, at such times and in such manner, to the other party, as the commissioners appointed by the court, shall judge just and equitable.

SECT. 15. When no one of the parties, interested, will consent to take such assignment, and pay such sum as shall be ordered as aforesaid, the court shall order the commissioners to sell such estate at public or private sale, as the court shall direct.

SECT. 16. The commissioners shall sell such estate, agreeably to the order of court, and execute good and sufficient conveyances to the purchaser thereof, which shall operate as an effectual bar, both in law and equity, against such owners, and all persons claiming under them.

SECT. 17. The commissioners shall pay the moneys, arising from such sale, to the several parties interested, or their representatives, as such court shall direct, retaining in their hands such sum as shall be allowed by the court, for their services and expenses, and the costs allowed the petitioner, for the use of such petitioner, unless the same are otherwise discharged.

SECT. 18. When partition shall be made of any real estate, by virtue of this chapter, the commissioners shall be allowed such sum, for their services and expenses, as the court shall judge reasonable.

SECT. 19. The sum so allowed, by the court, to the commissioners, together with the costs allowed to the petitioner, shall be paid by the respective owners of such estate, in proportion to their respective rights therein, and in case any owner shall neglect or refuse to pay his proportion of the same, the court shall direct so much of his share of such estate, to be sold at public auction, as will be sufficient to pay his proportion of the sum so allowed to the commissioners and the petitioner, together with the costs of such

sale.

SECT. 20. On such sale, the commissioners shall execute good and sufficient conveyances to the purchaser, who shall hold the same by virtue thereof, against such owner or any person claiming

under him.

SECT. 21. No commissioner, or any other person in trust for him, shall become a purchaser of the land, or any part thereof, sold by virtue of the provisions of this chapter.

SECT. 22. No partition of any real estate, made agreeably to the provisions of this chapter, shall be in any way avoided in consequence of any conveyance, by an owner of a part of such estate, of his interest therein, executed previous to the service of the petition, unless it shall appear that the petitioner had knowledge of such conveyance, or that the same was recorded according to law, at the time the petition was served, or notice given as before provided.

SECT. 23. In making such partition, if any share or right in the estate shall be set off or assigned to any person, other than the legal owner, such share shall enure to the use and benefit of the legal

owner, his heirs and assigns, in like manner as though the same had been set off or assigned to him.

SECT. 24. If any owner of a share in such estate was not an inhabitant of this state at the time of presenting such petition, and had not personal notice of the same, and shall think himself aggrieved by such partition, he may, within three years after the making thereof, petition the same court, which made the order of partition, for redress in the premises, notifying all persons interested, in the same manner as is directed on the original petition, and such court, upon sufficient cause, may order a new partition thereof, or make such other order in the premises, as to the court shall appear just and reasonable.

SECT. 25. If a new partition shall be ordered, no more shall be taken off from any share or right, than as such share or right shall be adjudged more than the proportion for which it was set off, estimating such estate, as in the situation, and at the time, when the same was first divided.

SECT. 26. If any improvements shall have been made after the first partition, on the share which, by such new partition, shall be set off as aforesaid, the owner, who made such improvements, shall have reasonable satisfaction made him, by the owner to whose share the same shall be added, to be estimated by the commissioners, who shall make such new partition, and the court may issue execution for such satisfaction.

SECT. 27. The commissioners, appointed to make such new partition, shall be allowed, for their services and expenses, such sum as the court shall award, to be paid by the several owners of such estate, in proportion to their respective rights, and, on refusal or neglect to pay, the same proceedings shall be had as is provided in the nineteenth section of this chapter.

SECT. 28. If either of the commissioners, appointed to make partition agreeably to the provisions of this chapter, shall die, become insane or remove from the state, before the same is completed, the survivors may exercise all the powers granted to the whole number.

SECT. 29. No petition, for the partition of real estate, shall be dismissed or proceedings thereon suspended, in consequence of the death of any owner or person interested in such estate, but such owner's right or share, shall be set off to his legal representative; nor because all the parties, interested in such estate, are not named in such petition, but every party, who shall not be named in such petition, may have his name entered therein, and have his right or share set off, and allotted to him, in proportion to his interest in such estate.

CHAPTER 44.

FORCIBLE ENTRY AND DETAINER.

COMPILED FROM

Chap. 41 of the Revised Statutes, pp. 234-237.

16. Process may be by summons or attachment. 17, 18. Fees.

19. Person having been three years in possession, not subject, &c.

4. Warrant to be issued on complaint, how 20. Complainant may recover damages, in acserved.

5. Jury, by wlrom and in what manner summoned.

tion of trespass, &c.

21. Appeal allowed to county court.
22. Judgment may be affirmed.

6. Verdict, guilty, court may fine, and grant 23. Lessees of lands or tenements, by writing restitution.

or parol, holding possession without right, may be ousted.

Person entitled to possession, how to pro

ceed. Form of writ. Either party entitled to jury trial.

25. Service and notice same as in other civil suits before a justice.

10. No costs to be taxed against complainant, 26. Judgment for possession, &c. for plaintiff, if when, &c. defendant shall be defaulted, &c.

11. Complainant may recover treble damages 27. If plaintiff become nonsuit, or fail to prove in an action of trespass.

12. Complaint not to be sustained against a person three years in possession.

a right of possession, defendant shall have judgment.

28. Appeal, conditions of.

13. Person refusing to surrender possession, af-
ter demand, in writing, same proceedings.
14. Not if tenant, by virtue of a written lease, 30.
holds over.
15. If a tenant, under written lease, holds over, 31. Recovery on an appeal.
proceedings before a justice, &c.

29. Process authorized by 24th scc. may issue
as an attachment.

Person in possession after breach of stipulations in a lease, may be ousted.

32. Repeal of inconsistent acts.

SECTION 1. No person shall make any entry into any lands, or other possessions, but in cases where entry is given by the law, and in such case, not with strong hand, nor with multitude of people, but only in a peaceable manner, and if any person do to the contrary, and be thereof duly convicted, he shall be punished by fine. (Sec. 1 of R. S.)

SECT. 2. Two justices, one of whom shall be a judge of the county court, shall have authority to inquire by a jury, as is hereinafter directed, as well against those who make unlawful and forcible entry into lands or other possessions, and with strong hand detain the same, as against those who, having a lawful and peaceable entry into lands and tenements, unlawfully and by force hold the same. (Sec. 2 of R. S.)

SECT. 3. If it be found, upon such inquiry, that an unlawful and forcible entry hath been made, and that the same lands or other

possessions are held and detained by force and strong hand, or that the same, after a lawful entry, are held unlawfully and with force, such justices shall cause the party complaining to have restitution thereof. (Sec. 3 of R. S.)

SECT. 4. When any complaint shall be formally made, in writing, to any two justices, as aforesaid, of any such unlawful or forcible entry or detainer, they shall issue a warrant, according to the form prescribed by law, which shall be directed to the sheriff of the same county, commanding such officer to apprehend the person against whom such complaint shall be made, and to bring him before the said justices, at a time and place in such warrant named, which shall not be less than six days from the time of issuing such warrant. (Sec. 4 of R. S.)

SECT. 5. The said justices shall also issue a precept, commanding such sheriff, or his deputy, to cause to come before them twelve men, to be drawn and summoned in the same manner as petit jurors to serve before the county court, at a certain time and place, in such precept to be mentioned, and if, at the time and place appointed for trial, a sufficient number of jurors, summoned by the sheriff, do not attend, the said justices may order the sheriff or his deputy to complete the number, by returning others, forthwith, and the jury, being empannelled, shall be sworn well and truly to try the forcible entry or detainer complained of, according to the evidence, and to return a true verdict thereof. (Sec. 5 of R. S.)

SECT. 6. If the jury, after a full hearing, find the person, against whom the complaint is made, guilty of the forcible entry or detainer complained of, the justices shall enter up judgment, for the complainant to have restitution of the premises, and shall impose such fine, not exceeding ten dollars, as they, considering all the circumstances, may think just, and shall tax cost for the complainant, and may commit the person, against whom the judgment is rendered, until the fine and cost be paid, and the said justices shall also award their writ of restitution, according to the form prescribed by law. (Sec. 6 of R. S.)

SECT. 7. If the jury find that the person complained against is not guilty, the complaint, in their opinion, not being supported, the said justices shall tax costs against the complainant, and issue execution accordingly. (Sec. 7 of R. S.)

SECT. 8. If the sheriff or his deputy cannot find the party, against whom the warrant issued, he may, six days before the time appointed for returning the same, leave a true and attested copy of such warrant at the usual place of abode of such person, and if, at the return of the warrant, he shall not be able to find or apprehend the same person, against whom such warrant issued, he shall make a return of such fact, and that he hath so left a copy, as aforesaid, and when the same was done. (Sec. 8 of R. S.)

SECT. 9. If the party, complained against, does not appear at the time appointed for trial, the justices may, in their discretion, adjourn or proceed ex parte, but they shall not inflict any fine, upon an ex parte hearing. (Sec. 9 of R. S.)

SECT. 10. In all cases the justices may, in their writ of restitution, order the costs taxed to be levied, but no cost shall be taxed