Entered according to act of Congress in the year eighteen hundred and seventy,

BY WILLIAM GOULD & SON,

In the Clerk's office of the District Court of the United States for the Northern District of New York.

350623

WEED, PARSONS AND COMPANY,

PRINTERS AND STEREOTYPERS,

ALBANY, NEW YORK.

PREFACE.

No book upon the subjects which are specially treated in this work has hitherto been produced by an American writer; and it was thought that such a treatise would be acceptable to the legal profession. The work of Mr. Adams on Ejectment is the only one that has been much used, on the subject of real actions, within the last thirty years; and that, although highly esteemed when first published, sixty years ago, has now become, to a very considerable degree, obsolete and, in many respects, inaccurate. A great change has occurred in the statutes relating to actions for the recovery of real property, both in the United States and in England, since the appearance of the last American edition of Mr. Adams' work, insomuch that it is now seldom consulted, and is of very little service as a book of practice. The principles by which the action for the recovery of real property is governed are peculiar, and oftentimes technical and abstruse, and a reliable work upon the subject is important to every practitioner.

In respect to the law of adverse enjoyment, I believe that io person in this country has ever attempted to treat the subject as a specialty, except Mr. Angell; and his essay, entitled "An inquiry into the rule of law which creates a right to an incorporeal hereditament by an adverse enjoyment of twenty years," was published nearly fifty years ago. It is obvious that a knowledge of the later and recent English adjudications, and of the American authorities, upon the subject of both actions for the recovery of real property and the law of adverse enjoyment, is peculiarly important to practitioners in the courts of this country.

It has been my aim, in the preparation of this work, to furnish to the profession, not only a convenient and reliable book of practice at Nisi Prius, but an accurate and useful treatise on all the subjects embraced in it. From the exhaustive manner in which I have endeavored to treat the statute of limitations, the law of tenures and landlord and tenant, the law of evidence, and the subject of wills, in addition to the more immediate subjects of the work, it is believed that the book will especially commend itself to that numerous and worthy class of lawyers who cannot afford the expense of the elaborate and costly treatises in which each of these subjects is distinctively and exclusively considered.

In that part of the work which treats of the remedy by ejectment, it has been my purpose to investigate the principles upon which the action is founded, and also to give a plain and practical statement of the proceedings by which the action for the recovery of real property is conducted in all of the United States. To this end, I have drawn, so far as I thought useful, from the English edition of Mr. Adams' work; but, more generally, the matter of this treatise is made up from the statutes of the several states and the decisions of the courts, all of which have been carefully considered, and the doctrine of the authorities faithfully extracted; and, with a view to rendering the decisions of the various courts the more readily intelligible, the substance of the statutes has been given in connection with the judicial authorities.

The subjects of the work are all treated in the order which it was thought would be the most convenient; and I must confess to a hope that my effort may prove advantageous and satisfactory to the profession. I have endeavored to examine carefully the statutes of the several states, and all the judicial authorities upon the subjects discussed, and bring the matter down to the present date. Of course, I have received essential aid from the excellent digests within my reach; but, as digests and head-notes of reports are not always quite accurate, I have sought to examine the cases themselves, and never adopt the language of the digests or head-notes, unless they were found to express the doctrine of the courts. The volume has attained to a

greater number of pages than I anticipated at first; but, as it was desirable that it be complete, I have not felt at liberty to omit any part which has been inserted. I hope and trust that the work may be useful to the student in his studies, and also be the means of abridging the time and labors of the practitioner in the arduous business of his profession. I remember, with gratitude, the kind indulgence with which my previous efforts have been received, and still entertain an abiding confidence in the liberality and magnanimity of a noble and appreciative fraternity, to whom the merits of the present work are committed.

April, 1870.