Mathewson v. Ham

• Decision Date: 20 May 1899
• Parties: MATHEWSON v. HAM.
• Court: Rhode Island Supreme Court

43 A. 848

21 R.I. 311

MATHEWSON

v. HAM.

Supreme Court of Rhode Island.

May 20, 1899.

Action by Herbert D. Mathewson against Franklin B. Ham. Constitutional questions certified from district court.

Robert W. Burbank, for plaintiff.

Arthur Cushing, for defendant.

DUBOIS, J. This is an action of trespass and ejectment, brought by landlord against tenant, in the district court of the Sixth judicial district, to recover possession of a tenement let, and certified therefrom on questions involving the constitutionality of Gen. Laws R. I. c. 237, § 9, which reads as follows: "Sec. 9. Every defendant in an action for the possession of tenements let, or held at will or by sufferance, claiming jury trial, shall, in addition to making the payments required in and by section seven of this chapter, give bond to the plaintiff, with one or more sureties satisfactory to the district court, to pay all rent or other moneys due or which may become due pending the action under the tenancy, and such damages and costs as may be awarded against him, such bond to be filed with the clerk of the district court or person acting as clerk, at the time of claiming jury trial." The defendant claims that the provisions of said section are void, because they constitute an unreasonable restriction upon the right of trial by jury, secured by section 15, art. 1, of the constitution, which provides that "the right of trial by jury shall remain inviolate," and contends as follows: "What, then, was the nature of the trial as known and used at the time of the adoption of our constitution, on the first Tuesday in May, 1843? Section 8 of 'An act establishing justices of the peace, and regulating the proceedings and trials in civil actions brought before them,' in the Laws of Rhode Island of 1822, is as follows: 'Sec. 8. And be it further enacted, that any party who shall be aggrieved at any judgment of any justice of the peace or warden, may appeal therefrom to the next court of common pleas holden in the same county, where the party so aggrieved shall have a hearing of said case, which shall be final; provided he shall within five days pay the costs, and give bond in said justice's court, in a sum not exceeding fifty dollars, with sufficient surety or sureties, to prosecute such appeal with effect, or in default to pay costs.' Section 6 of said act provides that when the defendant in any action of trespass shall plead the title of himself or any other person in justification, the justice, upon having such plea filed, shall require the defendant to give bond to the adverse party in a reasonable sum, with sufficient surety or sureties, to enter the action at the next court of common pleas to be holden within the same county, and to prosecute the same in the same manner as upon an appeal from a justice's judgment. The aforesaid sections 8 and 6 are the only portion of said laws of 1822 which shed any light upon or in any way affect the question involved in the present case. And said sections 8 and 6 are to be found, with a few minor changes, substantially re-enacted as sections 16 and 10, respectively, of 'An act in relation to justices of the peace,' in the Public Laws of Rhode Island of 1844. Between 1822 and 1844 no public law can be found which in any way affects or relates to the subject in controversy in this case. It may be presumed, therefore, that said sections 8 and 6 represent all the law existing at the time of the adoption of our constitution which can have any bearing upon the present question." The argument is based upon an erroneous assumption. Prior to 1798, the sole remedy in Rhode Island for this class of cases (i. e. actions for possession of tenements let, etc.) was by the common-law remedy of ejectment (a strictly possessory action, in which the plaintiff must have both title and right to possession, and over which justices of the peace never had jurisdiction). This remedy for the recovery of the possession of demised premises was found to be slow, technical, expensive, and ineffectual for the protection of the rights of landlords against obstinate or irresponsible tenants, who, by resorting to the technicalities therein permitted, were able to withhold possession from landlords for an indefinite period. To alleviate such conditions, and provide simpler methods, the legislatures of most of the states, following the English statute 11 Geo. II. c. 19, have provided a summary proceeding by which the landlord may speedily recover possession of his property. Wood, Landl. & Ten. § 573; Tayl. Landl. & Ten. (8th Ed.) § 713. This statute was enacted in 1738, and by Pub. Laws R. I. 1798, p. 153, § 7, it was provided that special courts of common pleas shall have cognizance concurrently with the ordinary courts of common pleas of all actions brought before them against tenants who hold over their terms, for the recovery of the possession of the tenements or estates leased. This appears to have been the first provision for a summary remedy in this state in such cases. These provisions were continued in Rev. Laws, 1822, p. 117. A right of jury trial was conferred in and by said statutes. Such was the nature of the trial as known and used at the time of the adoption of our constitution, May 2, 1843. The right of trial by jury, secured by the constitution, is simply the right to that kind of...