forcible entry and detainer within the meaning of this act; but not in cases where entry is given by law, and in such cases not with strong hand nor with multitude of people, but only in a peaceable manner; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine.

SEC. 648. Any justice of the peace shall have authority to inquire as hereinafter directed, as well as against those who make unlawful or forcible entry into lands, tenements, or other possessions, and detain the same as against those who, having lawful and peaceable entry into lands, tenements, or other possessions, unlawfully detain the same, and if it be found, upon such inquiry, that an unlawful or forcible entry hath been made, or that the said lands, tenements, or other possessions, after a lawful entry, are held unlawfully, then such justice shall cause the party complaining to have restitution thereof.

SEC. 649. When any complaint shall be made in writing to any justice of the peace, of any such unlawful or forcible entry, or unlawful detainer, said justice shall issue a summons, directed to the sheriff or any constable of the county, commanding him to summon the person or persons against whom such complaint shall have been made, to appear before said justice on a day named in the summons, which shall not be more than ten days from the issuing of such summons, and at the place therein mentioned.

SEC. 650. Such summons shall be served upon the person or persons against whom the same is issued, as other summons are served issued by a justice, at least four days before the return day thereof, and the officer serving the same shall make return of the time and manner of such service.

SEC. 651. 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 demand a jury, in which case a jury shall be summoned in the same manner and on the same terms, and the trial shall be had as in other cases of trial by jury before a justice.

SEC. 652. If at the time set for trial 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 or his testimony, and believes if

an adjournment be allowed he will be able to procure the testimony of such witness, in which case, if such person or persons will give bond, with sufficient surety, 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 al

appear necessary, not exceeding one month.

SEC. 653. The testimony of any witness which may be considered necessary by either party, may be taken in the same manner and with like effect as is provided for the taking of testimony in other cases in justices' courts.

SEC. 654. 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 the unlawful holding over. The defendant may show in his defence 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 yet ended or determined; and such showing shall be a bar to the prosecution; and in no case where the title to land is involved shall a justice of the peace have cognizance.

SEC. 655. If upon the trial, upon any complaint under this act, the justice or jury shall find the defendant or defendants, or either of them, guilty of the allegations of the complaint, said justice shall enter judgment for the complainant to have restoration 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 award and issue a writ of restitution. But if the said justice or jury find that the person complained of is not guilty, the justice shall tax the costs against the complainant and issue execution therefor.

SEC. 656. If the jury empanelled 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.

SEC. 657. In all cases of a verdict by the justice or jury for

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the complainant, the damages shall be assessed as well for the waste and injury committed upon the premises as for the rents and profits during such detainer; and the verdict shall also find the monthly rents and profits of the said premises, and the complainant shall be entitled to recover treble damages against the persons against whom the 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.

SEC. 658. When any person shall hold over any lands, tenements, or other possessions, after the termination of the time for which they are demised or let to them, or to the person under whom they hold possession, or contrary to the covenants or conditions of the lease or agreement under which they hold, or after any rent shall become due according to the terms of the lease or agreement, and shall remain unpaid for the space of three days, in all such cases, if the lessor, his heirs, executors, administrators, assigns, agent or attorney, shall make demand in writing of such tenant that they shall deliver possession of the premises held as aforesaid, and if such tenant shall refuse or neglect for the space of three days after such demand to quit the possession of such lands or tenements. or to pay the rent thereof due and unpaid, as aforesaid, upon complaint thereof to any justice of the peace of the proper county, the justice shall proceed to hear, try and determine the sare in the same manner as in other cases hereinbefore provided for, but shall impose no fine in any such case mentioned in this

section.

SEC. 659. The preceding section shall not extend to any person who has or shall have continued in possession one year after the termination of the time for which the premises were demised or leased or let to them or those under whom they hold possession, or to any person who continues in possession three years quietly and peaceably.

SEC. 660. Every person summoned as a juror, or subpoenaed as a witness, who shall not appear, or who appearing shall refuse to serve or give evidence in any prosecution instituted under this act, shall forfeit and pay for every such default or refusal to the use of the county, unless some reasonable cause be assigned, such fine,

not exceeding twenty dollars, as the said justice shall think proper to impose, and execution may be issued therefor.

SEC. 661. Appeals may be taken from all judgments rendered under this act to the district court, under the same rules and restrictions as to notice, appeal bond, and other matters, as are required on appeals from justices' courts in other cases; but in case such appeal be taken by the defendant, the undertaking shall contain an additional condition, to the effect that he will pay to the plaintiff all rents, profits and other damages that may accrue during the pendency of the appeal. If the appeal should be decided against him upon the filing of the appeal bond, all proceedings shall be stayed.

SEC 662. Such appeals shall be tried in the district court as other appeals from justices' courts are tried.

SEC. 663. Amendments to the complaint, answer, or other proceedings in matters of form only, may be allowed by the justice, or the district court, on appeal, at any time before judgment, upon such terms as may be just, and all matters of excuse, justification, or evidences of allegations in the complaint, may be given in evidence under the answer.

SEC. 664. All rules and regulations relating to trial before justices of the peace in other cases, and not inconsistent with the provisions of this title, shall be applicable, and be observed in trials arising under this title.

SEC. 665. An act entitled an act to regulate the proceedings in civil cases in the courts of justice of the Territory of Idaho, approved February 1st, 1864, and an act entitled an act supplementary to an act entitled an act to regulate proceedings in civil cases in courts of justice in the Territory of Idado, approved February 4th, 1864, passed by the legislature of Idaho at its first session, begun and held at Lewiston on the 7th day of December, 1863, and all other laws, or parts of laws, that are inconsistent with this act, be and the same are hereby repealed.

SEC. 666. This act shall take effect and be in force from and after its approval by the governor.

16.

[Approved.]

CRIMINAL PRACTICE ACTS.

AN ACT concerning Crimes and Punishments.

This Act follows oulstantially that of Idaho affirmed

Febuary 4, 1864.

34 Cal 187

CHAPTER

PERSONS CAPABLE OF COMMITTING CRIMES.

Be it enacted by the Legislative Assembly of the Territory

of Montana.

SEC. 1. In every crime or public offence, there must be union or joint operation of act or intention, or criminal negligence.

SEC. 2. Intention is manifested by the circumstances connected with the perpetration of the offence and the sound mind and discretion of the person accused.

SEC. 3. A person shall be considered of sound mind who is neither an idiot or lunatic, or affected with insanity, and who hath arrived at the age of fourteen years, or before that age if such person know the distinction between good and evil.

SEC. 4. An infant under the age of fourteen years shall be deemed incapable of knowing the distinction between good and evil unless the contrary be clearly shown.

SEC. 5. Any person counselling, advising, or encouraging an infant under the age of ten years, a lunatic, or idiot, to commit any offence, shall be prosecuted for such offence, where committed as principal, and if found guilty, shall suffer the same punishment that would have been inflicted on such persons counselling, advising, or encouraging, as aforesaid, had he, she or they committed the offence directly, without the intervention of such idiot, lunatic, or infant.

SEC. 6. A married woman, acting under the threats, command, or coercion of her husband, shall not be found guilty of any crime not punishable with death. Provided, It appear from all the facts