Sidor som bilder

ment as the law now stands. (Baylis v. Le Gros, 2 J. Scott's R. N. S. 316. Same Case, 89 Eng. C. L. R. 316.)

It has been held that interrogatories may be administered in an action of ejectment, even though it may be brought to enforce a forfeiture; and if the party to whom the interrogatories are put has objections to any of them, upon any legal ground, the same may be stated to each particular question, after such party is sworn. (Chester v. Wortley, 8 J. Scott's R. 410. Same Case, 84 Eng. C. L. R. 409. And vide Osborn v. The London Dock Company, 10 Exch. R. 698.)

Where the defendant in ejectment appears to defend for the whole of the land mentioned in the writ, and the plaintiff at the trial proves his title to the possession of part only of the land, the verdict is not to be entered in the general form for the plaintiff, but for the part only of the land as to which he succeeds, according to the form prescribed by section one hundred and eighty of the common law procedure act of 1852. Crompton, J., said: "Why should not the defendant be taken to have appeared to defend for the whole, and also for each specific part of the premises? From Phythian v. White, 1 M. & W. 216, to Naherme v. Gardiner, 8 E. & B. 161 (E. C. L. R. vol. 92), the courts have always construed distributively all pleadings that would possibly admit of such a construction; and section seventy-five of the common law procedure act, 1852, now requires them to do so. An appearance in ejectment is certainly not a pleading, but it is, under the new practice, analagous to the plea of not guilty under the old, which in Doe d Bowman v. Lewis, 13 M. & W. 241, was held to be distributable.” (Alcock v. Wilsharo, 2 Ellis & Ellis' R. 633.

& Same Case, 105 Eng. C. L. R. 631.)

The court of queen’s bench has held that, in ejectment, as well since the common law procedure act, 1852, as before, the court has jurisdiction to order by rule the parties really conducting the defense to pay the costs of the plaintiff, though those parties are strangers to the record, and claim no interest in the property That is to say, it was so held by Lord Campbell, C. J., and Wightman, J.; while Erle, J., dissented, saying: “Here the parties are strangers to the record, and I do not see on what principle we have this summary jurisdiction over them.

I am, there. fore, of opinion that, if the plaintiffs are entitled to recover costs from these parties, they must recover them, not in this summary

[ocr errors]


manner, but in the normal way by action.” (Hutchinson v. Greenwood, 4 Ell. & Black. R. 324. Same Case, 82 Eng. C. L. R. 322.) Under the two hundred and tenth section of the common law procedure act, 1852, which relates to the action of ejectment in landlord and tenant cases, it has been held that a motion for leave to sign judgment and issue execution may be made to the court, and the order granted is absolute in the first instance. (Youens v. Keen, 2 J. Scott's R. N. S. 784. Same Case, 89 Eng. C. L. R. 384.)

Prior to the passing of the common law procedure act, 1852, a defendant, who had been in execution for the nominal damages and costs in an action of ejectment for more than twelve successive calendar months, was entitled by statute to be discharged; and the question has recently been before the court of common bench, whether this act has in any way altered the state of the matter; and the decision of the court is that it does not. Williams, J., said : “No doubt it must have occurred to the legislature that points like this might arise; and, therefore, to obviate inconvenience, the sweeping provision in section 107 was introduced, that the effect of the judgment in ejectment in its new form, shall be the same as the former judgment. Before that statute, the effect of a judgment for the plaintiff in ejectment was to enable the plaintiff to keep the defendant in execution only for twelve months ;" and the court held that the effect of this provision is to reserve to the defendant all the advantages which the law before allowed him; and among others the right to claim his discharge under the old statute. (Humphreys v. Franks, 3 J. Scott's R. N. S. 765. Same Case, 91 Eng. C. L. R. 764.)

The foregoing are all of the points settled by the courts ander the present English act, which it is thought necessary to note. It would seem that most of the principles of the common law in respect to the action of ejectment are still retained, and that the object of the statute of 1852, and its amendments, is merely to alter the procedure in the action.




The action of ejectment, in the state of New York, like all other civil actions in the courts of record of the state, must be commenced by the service of a summons.

The summons must be subscribed by the plaintiff or his attorney, and directed to the defendant, and must require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. And the summons must also contain a notice to the effect, that, if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint. (Code of Procedure, SS 127, 128, 129.)

The names of the real claimants must be inserted as plaintiffs in the summons, and also in the complaint, in the action of ejectment, and all the provisions of law concerning lessors of a plaintiff are made to apply to such plaintiffs.

The use of fictitious names of plaintiffs or defendants, and of the names of any other than the real claimants and the real defendants, and the statement of any lease or demise to the plaintiff, and of an ejectment by a casual or nominal ejector, are abolished. (2 Stat. at Large, 312, SS 5, 6.)

No person can recover in ejectment unless he has, at the time the action is commenced, a valid, subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial.

If the premises for which the action is brought are actually occupied by any person, such actual occupant must be made de fendant in the action; if they are not so occupied, the action must be brought against some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein at the commencement of the action. (2 Stat. at Large,

[ocr errors]

$$ 3, 4.) The first pleading in ejectment is called a declaration, in the Revised Statutes of the state, but by the Code it is named a complaint; and by the Code the general provisions of the Revised Statutes concerning real property, are made to apply to actions brought under the Code, according to the subject matter of the action, and without regard to its form. (2 Stat. at Large, 312, $ 5, Code, SS 11, 141, 455.)

An action for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property, must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial in the cases provided by statute. (Code, $123.) And the action of ejectment was also a local action by the Revised Statutes, and was required to be tried in the county where the subject of the action was situated. (2 Stat. at Large, 426, $ 2.)

It was said by Mullin, J., sitting at special term, that, although the Code has abolished the forms of actions, and the action of eject. ment eo nomine is unknown to the law of New York, yet the right to recover the same estates, rights and interests in lands, tenements and hereditaments, remains and is enforced by actions as before, and the action to be brought is still an action at law, as distinguished from a suit in equity. He, therefore, very properly held, that the clause of the Code above stated, by which actions for the recovery of real property, or of any estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property, are to be tried within the connty, is to be construed as relating to actions in the nature of ejectment and trespass, and others which were formerly causes of legal cognizance solely. (Hubbell v. Sibley, 4 Abbott's Pr. R. N. S. 403.)

A copy of the complaint need not be served with the summons; but if it is not, the summons must state where the complaint is or will be filed. (Code, $ 130.) The practice in respect to the service of the summons, for the appearance of the defendant, and procnring the service of a copy of the complaint in the action of ejectment, is the same as in other civil actions, and need not be explained here. The complaint in the action of ejectment must contain the substance of what is required by the Code to be contained in the complaint in other civil actions. The provisions of the Revised Statutes relating to the contents of the declaration in ejectment are

applicable to the contents of the complaint under the Code for the recovery of real property. By those provisions, it is sufficient for the plaintiff to aver in his complaint, that on some day therein to be specified, and which must be after his title accrued, he was possessed of the premises in question, describing them with convenient certainty, designating the number of the lot or township, if any, in which they shall be situated: if none, stating the names of the last occupants of lands adjoining the same, if any; if there be none, stating the natural boundaries, if any; and if none, describing such premises by metes and bounds, or in some other way, so that from such description possession of the premises claimed may be delivered.

If the plaintiff claims any undivided share or interest in any premises, he must state the same particularly in the complaint.

If the action be brought for the recovery of dower, the complaint must state that the plaintiff was possessed of the one undivided third part of the premises as her reasonable dower as widow of her husband, naming him. In every other case the plaintiff must state whether he claims in fee, or whether he claims for his own life, or the life of another, or for a term of years, specifying such lives or the duration of such term; and the complaint must allege that the plaintiff, being so possessed of the premises in question, that the defendant afterward, on some day to be stated, entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage, any nominal sum the plaintiff shall think proper to state. (2 Stat. at Large, 312, 313, SS 7, 8, 9, 10.)

Before suit can be brought by an individual to recover the pos- . session of lands conveyed by him during his infancy, he must make an entry upon the lands and execute a second deed to a third person, or do some other act of equal notoriety in disaffirmance of the first deed, such as demanding possession, or giving notice of an intention not to be bound by the first deed; and the courts hold that, under the present system of pleading in the state of New York, this act of disaffirmance must be averred in the complaint, and is necessary to be proved. (Voorhees v. Voorhees, 24 Barb. R. 150.)

The Revised Statutes contain a provision allowing the plaintiff to insert in the declaration several counts, naming several parties as plaintiffs jointly in one count, and separately in others; but the supreme court has decided, that this provision relates merely to the

« FöregåendeFortsätt »