Unless there be two or more plaintiffs or defendants, and one or more of them die after judgment and before execution, in which case execution may be had for or against the survivors.' If any executor or administrator shall die or be removed, after judgment is rendered, either for or against him, a scire facias may be sued out, either by or against the administrat or de bonis non, and after due service thereof, a new execution may be issued accordingly upon such judgment, in like manner as it may be done by or against an orignal executor or administrator, in case of the death of his testator or intestate, after a judgment rendered for or against him, except only, that the judgment against the first executor or administrator for costs, for which he was personally liable, shall be enforced only against his executor or administrator, and not against the administrator de bonis non.* 6. On the marriage of a feme sole plaintiff or defendant. The general principle is, that where a new person is to be benefited by or charged by the execution of a judgment, there ought to be a scire facias to make him a party to it. Therefore if a feme sole plaintiff marry after judgment and before execution, there must be scire facias to execute the judgment." If a feme sole defendant marry, however, after judgment, and before execution, no scire facias is necessary, unless the plaintiff wishes execution against the husband as well as the wife. 4 7. Against executors or administrators on suggestion of waste. When an execution against an executor or administrator, for a debt due from the estate of the deceased, is returned unsatisfied, the creditor may sue out a scire facias, upon a suggestion of waste, against the executor or administrator, and if the defendant shall not appear and show sufficient cause to the contrary, after due service of the writ, execution shall issue against him for the full amount of the original judgment and interest thereon, not exceeding, however, the full amount of the waste, if it can be ascertained." III. FORCIBLE ENTRY AND DETAINER. The process of forcible entry and detainer, originally applicable to peculiar cases, in which the element of force existed, has, by more 19 Mass. 18-Ib. 160. 2R. S. ch. 120, sec. 8. 3Howe's Pr. 70. 45 Green. 443. recent statutes, been extended to almost all, if not all, cases of unlawful refusal to quit any lands or tenements. The revised statutes provide, that any justice of the peace and of the quorum, in the county in which he resides, shall have jurisdiction of all cases of forcible entry and detainer, except those arising in a town or city therein, in which a municipal or police court is, or may be established. Such municipal and police courts have also concurrent jurisdiction with justices of the peace and quorum in cases arising in the counties in which they may be established.' Complaint may be made to the proper magistrate or court, in writing and on oath of any unlawful and forcible entry into lands or tenements, or of any unlawful and forcible detainer, or of any unlawful detainer, of the same; whereupon a warrant under hand and seal, is issued, directed to the sheriff or his deputy, or a constable of the town or city where the person charged resides, to summon him to show cause why judgment should not be rendered against him. The summons is to be served by reading the same in his presence and hearing, or by delivering him a copy, or leaving it at his last and usual place of abode, seven days, at least, before the day set for trial.2 On return of such service, in case of non-appearance and default of the party charged, or his failing to show sufficient cause, judgment is rendered against him for possession of the premises, and the justice, or court, issues a writ of possession to remove him." Should the defendant plead not guilty to the complaint, and file a brief statement of title in himself, or some other person under whom he claims the premises in question, the justice is thereupon to order him. to recognize to the complainant, with sufficient sureties, in such sum as the court may order, to pay all intervening damages and costs, and reasonable intervening rent for the premises. The complainant must also be required to recognize to the defendant, with sufficient sureties, in a reasonable sum, conditioned to enter the action at the next district court, and prosecute the same to final judgment, and pay all costs adjudged against him; and if either party refuses so to recognize, judgment is to be entered, as in case of nonsuit or default, against the party so neglecting or refusing.* 1R. S. ch. 128, secs. 1, 6. 3R. S. ch. 128, sec. 3. So, either party may appeal from the judgment rendered, upon issue joined, to the next district court, recognizing, as aforesaid, to pay such costs as may be adjudged against him; but if the defendant appeals, he is to recognize to pay such reasonable intervening rent for the premises, as the justice, or court below, shall adjudge, in case his judgment shall not be reversed on such appeal.' We have remarked that recent legislation had extended the process of forcible entry and detainer to almost all, if not all, cases of unlawful detainer of real property. The Revised Statutes made the process applicable to tenants, whose estate in the premises is determined, and who unlawfully refuse to quit the same after thirty days' notice in writing given by the lessor for that purpose, provided they shall not have been in quiet possession of the premises three whole years, next preceding the filing of such complaint.2 The proviso in the section quoted has now been repealed; and further legislation has provided that the process may be maintained, although the relation of landlord and tenant does not exist between the parties.* A subsequent statute still further provides, that the process of forcible entry and detainer may be used in all cases against any lessee, who holds under a written agreement, and against any other person holding under said lessor [lessee] at the expiration of the term named in the written agreement, or when said term is forfeited by any breach of condition in said written agreement of said lessee, and also against a disseizor of lands, without having given any notice to quit to said lessce or person holding under him or said disseizor: provided the said lessor shall so proceed within seven days from the expiration of the term, or the breach of the same as aforesaid.❜ It is sometimes a matter of some nicety to determine, in particular cases, who is, and who is not a disseizor. The general rule, at common law, seems to be, that it shall depend upon the election of the owner, whether an interference with his title shall constitute a disseizin. For further information upon this point, we must content ourselves with reference to the work mentioned in the note, and the cases 1R. S. ch. 128, sec. 4. 2Ib. sec. 5. Acts of 1847, ch. 4. 4 Acts of 1849, ch. 98. 1 there cited. Any person who has actually ousted the complainant, or withheld from him the possession of the premises, would probably be considered, in this state, for the purposes of the process in question, a disseizor.2 It is to be observed, that the proviso in the statute of 1850, does not extend to process instituted against a disseizor, but only to that of lessor against lessee. Whether a lessee, after his estate is determined by demand of rent by the lessor and nonpayment, is to be considered under this statute a disseizor, or whether he is to be treated as a lessee merely, may not be clear. If he may be treated as a disseizor, in such case he is entitled to no notice, and may be proceeded against immediately upon demand of rent, and refusal to pay. If, on the other hand, he is even, after demand and refusal of payment, still in the position of lessee, he will be entitled (unless complained against within seven days) to the thirty days' notice mentioned in the Revised Statutes, chapter one hundred and twenty-eighth. The statute leaves the case of tenants at will untouched. A tenant at will is a person who holds under a verbal lease, and is entitled to such time to quit, after notice, as is equal to the interval between the days of payment of rent;3 or in case of nonpayment of rent, to thirty days' notice. Such notice determines his estate, after which he must have thirty days' notice under the forcible entry and detainer act of 1841. At least, so is understood to have been the decision of the Supreme Court of this State in the recent case of Smith v. Rowe, in Cumberland county. A tenancy at will may also be determined by its own limitation. For example, the death of the lessor, or a conveyance by the lessor, so determines it. In such case the tenant is entitled to thirty days' notice after such determination. A tenant at sufferance is entitled to no notice to quit." IV. REPLEVIN OF BEASTS AND CHATTELS. Any person, whose beasts are distrained or impounded, in order to recover any penalty or forfeiture, supposed to have been incurred, by their going at large, or to obtain satisfaction for any damages, alleged 11 Hilliard on Real Property, 86. 2R. S. ch. 145, sec. 10. R. S. ch. 95, secs. 19, 20. 421 Maine, 114-3 Met. 351. 1 to have been done by them, may maintain a writ of replevin against the impounder or finder therefor, to be sued out and prosecuted before any justice of the peace for the county, in the form prescribed by law.' The writ shall be sued out, served and returned, and the cause shall be heard and determined, in like manner as is provided in the case of other civil actions before a justice of the peace, except as otherwise prescribed.2 The writ shall not be served, unless the plaintiff or some one in his behalf, shall execute and deliver to the officer a bond to the defendant, with sufficient sureties, to be approved by the officer, in a penalty double the value of the property to be replevied, with condition to prosecute the replevin to final judgment, and to pay such damages and costs, as the defendant shall recover against him, and also to return the said property, in case such shall be the final judgment; such bond to be returned with the writ for the use of the defendant." For the judgment in this action, see the chapter on Judgments. For the mode of transferring the action to the District Court, when the sum demanded exceeds twenty dollars, and in other cases, see chapter vii. When any goods of a value not exceeding twenty dollars, shall be unlawfully taken, or unlawfully detained from the owner, or the person entitled to the possession thereof, or when any goods of that value, which are attached on mesne process, or taken in execution, are claimed by any person other than the defendant in the suit, in which they are so attached and taken, such owner or person may cause them to be replevied by process from a justice of the peace.* For the judgment in this action, see the chapter on Judgments. V. OF GOODS FORFEITED, AND OF LOST GOODS. 1. Of goods forfeited. When any personal property shall be forfeited for any offence, and no special mode is prescribed for recovering the same, any person entitled thereto, in whole or in part, may seize and keep the same until final judgment, unless they are restored on the bond as hereafter mentioned." IR. S. ch. 130, sec. 1. 2Ib. sec. 2. 3Ib. sec. 3. 4Ib. secs. 8, 9. R. S. ch. 132, sec. 1. |