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It has been understood, and the constitutional purpose evidently was, to take from the justices of the peace and confer on the superior courts jurisdiction to hear all actions which involved the possession of real estate. Sec. 6, art. 4, Constitution of the State of Washington and since its adoption all actions by landlords for recovering possession of leased premises have been prosecuted in the superior court.

The act of March 7, 1891, beginning at sec. 547, Second Code, was intended to give effect to this provision of the constitution and to cover the whole field of possessory difficulty between landlord and tenant.

Some of the provisions of this act are unusual, i. e., by sec. 556 the plaintiff, when he commences the action or later, may apply to the judge of the court for a writ of restitution restoring to the plaintiff the property in question, and the judge shall order it to issue. The only restriction here is, that if the writ is applied for before judgment in favor of plaintiff, plaintiff must execute a bond to the defendant to be approved by the clerk, and conditioned that plaintiff will prosecute the action and pay costs and damages sustained by defendant if the writ was wrongfully sued out. No showing is required to be made, and no discretion is vested in the judge; he shall order the writ to issue and if the plaintiff satisfies the clerk about the bond, it must issue.

But the next section, 557, was intended to appear to have been framed to protect the tenant. It directs the sheriff forthwith to serve the defendant with a copy of the writ, but not to execute the writ for three days thereafter, within which time the defendant may execute to plaintiff a bond to the satisfaction of the clerk, conditioned to pay plaintiff what plaintiff may recover for the use of the premises or any rent due, together with all damages that plaintiff may sustain by reason of defendant's holding said premises, and the costs of the action.

The plaintiff, his agent or attorneys, shall have notice where and when the court will fix the amount of the defendant's bond, and shall have notice and a reasonable opportunity to examine into the qualifications and sufficiency of the sureties on defendant's bond, before the bond shall be approved by the clerk.

It will be observed that there is no provision for notice to defendant of the time and place when plaintiff will apply for his writ and when the court will fix the amount of the plaintiff's bond, nor for notice to defendant and for reasonable opportunity to defendant for the purpose of examining the sureties on the plaintiff's bond before the bond shall be approved by the clerk. In other words, the plaintiff and his attorney may personally and privately interview the judge, who must act under a mandatory statute to fix the amount of the bond and direct the writ to issue which is to deprive the defendant of his home or place of business or both. But should the defendant wish to give a bond to retain possession, he finds himself hampered with all the obstructions that legal ingenuity could devise. The law says to him, "yes, you may give bond and keep possession, but it has got to be conditioned inter alia, that you will pay all damages plaintiff may sustain by reason of your occupancy, be that occupancy right or wrong-it does not say wrongful occupancy. And you shall give plaintiff or his agents or attorneys notice of the time and place when you will apply to the judge to fix the amount of the bond, that they may be present and insist on its being placed at the highest figure, and you shall give them notice and a reasonable opportunity when they may be present and publicly examine your sureties as to their private affairs, and alarm and deter them from going on such a bond." And all of this to hold possession of property to the possession of which he may have the most absolute right.

If the writer has not totally misapprehended these provisions, they are the subject of the righteous indignation of a profession which has been at all times in its history the fearless champion of justice and the friend of the oppressed.

It is not only among the probabilities, but must often happen so, that before the tenant can protect his rights under this law his credit is gone, his business destroyed, his family and effects are in the public highway. And yet the defendant has been convicted of no wrong, has had no day in court. The subject matter of the litigation has been wrested from him and given to his adversary without a judgment of the court that he was entitled to it, and when a hearing may easily and clearly establish the wickedness and oppression of his opponent's conduct.

These provisions were early before the writer in the superior court, where he sustained the constitutional objections to them, that they deprive the defendant of his property without due process of law. Sec. 3, article 1, State Constitution. That defendant had defense of his prop

no day in court or opportunity to be heard in erty, and that there was no process of law; and that it was class legislation. Sec. 12, article 1, ib.

He has continued so to hold whenever the matter has been before him, always refusing the writ before judgment, and shall so continue unless our supreme court shall otherwise direct.

Sec. 564, ib., provides that if unlawful detainer be after default in the payment of rent, that the amount of rent due shall be found and judgment shall be rendered against defendant for twice the amount of the damages assessed and rent found due.

The writer has not been able to perceive why a tenant's inability to pay should be cause for taking his debt out of the class of ordinary debts and aggravating his default into a crime, for which, after charging him with debt, interest and costs, that the law should seize also what is left of his property and deprive him, in addition, of an amount equal to the damages and debt.

This statute follows the two English statutes of 4th and 11th George II, which Chancellor Kent says, though reënacted in New York, have not been generally adopted in this country, and the English courts have held that they were only to be applied as a penalty for contumacy or fraud on the part of the tenant, and not to cases where he maintains possession bona fide or on fair grounds of defense.

So it would appear that where the tenant was in default of rent, the lease being unexpired and where he had reasonable expectation of paying, and where to put him in default as to possession a forfeiture must be declared, that an application of the statute is harsh and unusual.

The English ancestors of our statute seem to put this penalty on a tenant holding over after the term expired. But it is submitted that this provision of our statute and that relating to restitution before judgment for plaintiff should be repealed.

And generally upon the subject of the landlord's remedies for recovery of possession, it is submitted that our experience has jus

tified the old remedy where he might complain to a justice of the peace and have a speedy trial, generally after three days' notice, where the only issue that could be was guilty or not guilty of the detainer complained of.

The action in the superior court is unjust to the landlord really entitled to possession, in that it is expensive, involved and delayful. The remedy is not plain, speedy and adequate.

But the act referred to was passed by the legislature of 1891, and at that time, ever since the territorial legislature of 1854-5, we have had on our statute books a forcible entry and detainer act, which secured to the landlord the writ of restitution after judgment in his favor that he was entitled to the premises, and which forfeited the lease and entitled the landlord to possession in case of the non-payment of the rent; so that the legislature was not without most approved statutes when it came to put the constitutional provision into effect.

It is believed there is no other material change in the statute law of this subject since we became a state.


The status of our law as shown by the adjudged cases, chronologically and otherwise, is about as follows:

There are but two cases purporting to be on this subject in the territorial reports, covering the period from 1854 to 1889, both years inclusive.

The first which purports to be on our subject was Blumberg v. McNear, 1 Wash., page 141, decided in 1861 by the supreme court, then consisting of Hewitt, C. J., and Oliphant and Wyche, associate justices. The opinion was delivered by Oliphant, J.

The action was for wharfage, wharf being in the possession of plaintiffs under color of title. Defense was want of title in


The court quotes the maxim that possession constitutes sufficient title against every person not having a better title.

The court found that defendant had used the wharf of which the plaintiffs had possession under color of title, and held that defendant must pay for it, and could not be relieved by setting up defective title.

Though this is put down as a case of landlord and tenant, the writer cannot agree with the learned reporter that it is such a case. Wharfage is a charge for landing goods at a wharf, and is wanting in all the essential features of a tenancy.

The next case, really the first and only case where action was between landlord and tenant, is reported in the 2d W. T. 165, and is Hadlan v. Ott.

Here the only question of the law of landlord and tenant decided was that when a lease contains covenants for the tenant to make all necessary repairs, damages by elements excepted, and the buildings are destroyed by fire before the expiration of the lease, the landlord must rebuild.

The case was decided below on motion for judgment on complaint and answer, and this was the supreme court's construction of the covenants for repair as they appeared in the complaint. Opinion by Wingard, J. Counsel for plaintiff in error was Mr. P. P. Carroll and Mr. C. H. Hanford, now United States district judge. Messrs. Judson & Israel appeared for the defendant in error. It was a Thurston county case, the property being in Olympia.

The decision was rendered in July, 1883, twenty-nine years after the organization of the courts here, and is evidence, inter alia, that the leasing of land and tenements was not of frequent occurrence during the early pioneer life of the territory.

There is no case in volume 3 of the territorial reports, and no other case of landlord and tenant appeared before our territorial supreme court, Hadlan v. Ott being the only case during our thirtyfive years of life as a territory.


The greater frequency of this class of cases in our state reports, which began January, 1890, suggests to the mind the settlement of the state and the growth of towns and cities, the development of trade and manufactures, and a trancient population for whom lodgment and homes and places of business were in demand.

The case first reported, Meeker v. Gardella, 1 W. St. 142, as a landlord and tenant case, is not such a case at all.

Anders, C. J., delivering the opinion of the court, says: "The

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