plaint, or by petition, at the option of the plaintiff. Watson v. Brigham, 1 Code Rep., 67; 3 Pr. R., 290. Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R., 83. Myers v. Borland, ib. Backus v. Stillwell, 1 Code Rep., 70; 3 Pr. R., 318. Traver v. Traver, 1 Code Rep., 112; 3 Pr. R., 351. Row v. Row, 4 Pr. R., 133.

Where the proceedings are instituted by petition, the pleadings are intended to be similar to an action under the code. The petition is to stand for the complaint, and any thing may be pleaded which will abate the action or bar the petitioner's right to a judgment. Reed v. Child, 2 Code Rep., 69; 4 Pr. R, 125. We believe the more usual practice now is to proceed by summons and complaint.

In a partition suit commenced by summons and complaint, where any of the defendants omit to answer in due time, it is not necessary to enter an order for their default in not answering, the plaintiff is entitled to the relief asked for, as in other actions. Watson v. Brigham, 1 Code Rep., 67; 3 Pr. R., 290.

An allegation in an answer in a partition suit, that the plaintiff had unreasonably refused to make partition by deed, was stricken out as redundant. McGowan v. Morrow, 3 Code Rep., 9.

The court has no discretionary power to charge either party with the entire costs in partition, upon the ground that the plaintiff unreasonably refused to make partition by deed. The provisions of the revised statutes (2 R. S., 328, s. 77) is not repealed by section 306 of the code, but the latter must be construed in connection with and as qualified by the former. 1b.

But when the plaintiff in a suit in partition makes persons defendants who have no interest in the subject matter of the suit, the costs of such defendants will not be charged upon the fund or against their co-defendants, but must be paid by the plaintiff personally. Hammersley v. Hammersley, 7 Leg. Obs., 127.

Unless such unnecessary parties are brought in at the request of the other defendants. Ib.

Notice of commissioner's proceedings in partition is not required by statute to be given to the parties. It would be proper, however, that the parties should have an opportunity to be heard before the commissioners prior to partition. Row v. Row, 4 Pr. R., 133, and see supreme court rules, 73, 74, 75; and see Hayward v. Judson, 4 Barb. S. C. R., 228; laws of 1847, cap. 430; laws of 1851, p. 555; and laws of 1852, p. 411.

CHAPTER IV.

Actions to determine conflicting claims to Real Property, and for waste and nuisance.

SECTION 449. Actions to determine claims to real property, how prosecuted. 450. Action of waste abolished. Waste, how remediable.

451. Provisions of revised statutes applicable to actions for waste under this act.

452. When judgment of forfeiture and eviction to be given.

453. Writ of nuisance abolished.

454. Remedy for injuries heretofore remediable by writ of nuisance.

§ 449. Actions to determine claims to real property, how prosecuted.-Proceedings to compel the determination of claims to real property, pursuant to the provisions of the revised statutes may be prosecuted by action under this act, without re

436

CONFLICTING CLAIMS, WASTE, NUISANCE. [83 450—454.

gard to the forms of the proceedings as they are prescribed by those statutes.

Notwithstanding this section, it has been held that actions to determine conflicting claims to real property must still be commenced in the manner prescribed by the revised statutes. Crane v. Sawyer, 1 Code Rep. N. S., 30.

The costs allowed to the prevailing party in a summary proceeding to recover possession of land, are merely the fees of those officers who are required to perform the services, such as the judge, sheriff, constable, &c. Attorney and counsel fees are not recoverable against the adverse party. Partridge v. Ford, 5 Pr. R., 21.

The provisions of the revised statutes relative to the determination of claims to real property (2 R. S., 313), were amended by laws of 1848, p. 67.

$450. Action of waste abolished. Waste how remediable. The action of waste is abolished, but any proceeding heretofore commenced, or judgment rendered, or right acquired, shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises.

§ 451. Provisions of Revised Statutes applicable to action. for waste under this act.-The provisions of the Revised Statutes relating to the action of waste, shall apply to an action for waste brought under this act, without regard to the form of the action, so far as the same can be so applied.

§ 452. When judgment of forfeiture and eviction to be given -Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice.

§ 453. Writ of nuisance abolished.-The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affected thereby.

§ 454. Remedy for injuries heretofore remediable by writ of nuisance.-Injuries heretofore remediable by writ of nuisance, are subjects of action, as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both.

CHAPTER V.

General provisions relating to actions concerning real property.

SECTION 455. Provisions of Revised Statutes applicable thereto.

§ 455. Provisions of Revised Statutes applicable thereto.-The general provisions of the Revised Statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.

The Revised Statutes (2 R. S., 309, s. 38), provide " that the court in which such judgment (i. e. judgment in ejectment), shall be rendered at any time within three years thereafter; upon the application of the party against whom the same was rendered, his heirs and assigns, and upon payment of all costs and damages recovered thereby, shall vacate such judgment and grant a new trial in such cause."

In an action commenced since the code took effect, to recover possession of real estate, the defendant had a verdict, and the plaintiff (within three years) moved for a new trial uuder the above provision of the Revised Statutes. The defendant objected that the judgment had not been perfected, and that the Revised Statutes did not apply; but the court, Marvin, J., held, that the Revised Statutes did apply, and ordered that the plaintiff be allowed to perfect the judgment unless the defendant did so within ten days, and that when perfected the judgment should be thereupon vacated and a new trial granted without order, on the terms (we presume, the report being silent upon the subject), prescribed by the Revised Statutes. And in an action commenced before the code went into effect and decided since, where the judgment having been paid the defendant moved for a new trial pursuant to statute, (2 R. S., 309), it was held, that the court had no discretion. The statute is imperative that the party, on application and payment of all the costs and damages recovered, shall have a second trial. 2 R. S., 309, s. 37. 2 Paine & Duer's Pr., 517. Gra. Pr., 676. Shaw v. McMaren, 2 Hill., 417. The code has made no change in this part of the practice, even in suits commenced since it took effect; for, although the action of ejectment is not retained by name, in actions for land these provisions of the Revised Statutes apply. Rogers v. Wing, 5 Pr. R., 50.

Where it appeared on the trial of an ejectment suit against a corporation, and against individuals, that the individual defendants were severally in possession of separate rooms in a dwelling house on the premises, and of separate parcels of land as tenants of the other defendant, and the corporation was actually in possession of only part of the premises, it was held that in such a case, the plaintiff is bound to elect against which of the defendants he will proceed, and a verdict must be rendered in favor of the other defendants. Fosgate v. Herkimer Manufac. Co., 9 Barb. S. C. R., 287.

A general verdict in such a case cannot be sustained. Ib. See section 121, and laws of 1847, cap. 337. Laws of 1846, c. 159. some remarks on the practice in action of ejectment-1 Code Rep., 19.

And see

TITLE XIV.

SECTION 456.

Provisions relating to Existing Suits*

Appeal from an order at special term, on summary application, after judgment. 457. Writ of error in all cases abolished. Appeal substituted.

458. Execution when issuable on a judgment docketed before July 1,

1848.

459. Proceeding by re-hearing abrogated.

460. Appeals from final decrees, by a single judge, in supreme court, in suits in equity pending on July 1, 1847, when to be taken.

461.

Issues of fact in county court or common pleas before July 1, 1848, how tried.

§ 456. Appeal from order at a special term, on summary application after judgment. -The appeal mentioned in section 9, of the act to facilitate the determination of existing suits in the courts of this State, may also be taken from an order made at a special term, on a summary application in an action after judgment, when such order involves the merits of the application, or some part thereof.

§ 457. Writ of error in all cases abolished. Appeal substituted. No writ of error shall be hereafter issued in any case whatever. Wherever a right now exists to have a review of a judgment rendered, or order or decree made before the first day of July, 1848, such review can only be had upon an appeal taken in them anner provided by this act; and all appeals heretofore taken from such judgments, orders, or decrees, under the provisions of the code of procedure, which are still pending in an appellate court, and not dismissed, shall be valid

* Upon the code and supplementary act of 1848, a question was raised as to what was an existing suit; and where in an action at law a declaration was delivered to the sheriff for service before the code went into effect, but was not served until after the code took effect, it was held, not to be an existing suit, and the declaration was set aside. Diefendorf v. Elwood, 3 Pr. R., 385 ; 1 Čode Rep., 42.

An equity suit in which the subpoena to appear and answer was tested and issued prior to 1st July, 1848, but not served until after that time, was held to be an existing suit. Angelo v. Van Burgh, 1 Code Rep., 84.

and effectual. But this section shall not extend the right of review to any case or question to which it does not now extend, nor the time for appealing, nor shall it apply to a case where a writ of error has been already issued.

Section 457 of the code of 1848, authorizes a review only in cases where the judgment, decree, or order appealed from, was entered before the code was passed, and where a right of review existed by the previous law. Dunlop v. Edwards, 3 Code Rep., 197.

A writ of error will not lie to review in the court of appeals a decision of the supreme court, made at special term, awarding a peremptory mandamus. People v. Steele, 1 Code Rep., 88.

§ 458. Execution when issuable on a judgment, docketed before July 1, 1848.-An execution may be issued without leave of the court upon a judgment docketed before the first day of July, 1848, or now or hereafter to be rendered in an action pending on that day, at any time within five years after the rendering of the judgment.

See sections 283, 284.

§ 459. (Amended, 1851.)—Application of this act to actions pending Extraordinary terms.-The provisions of this act apply to future proceedings in actions or suits heretofore commenced, and now pending as follows:

1. If there have been no pleading therein, to the pleadings and all subsequent proceedings:

2. When there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings:

3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal. Whenever the judges of the supreme court in any district find that the court at any term or circuit, has not been, or will not be able to dispose of all the cases upon the calendar, they may request the governor to assign other judges, and if necessary, appoint extraordinary terms and circuits, for the purpose of disposing of such cases. The governor may thereupon make such assignment, and the judges assigned must hold the courts accordingly.

Before amendment this section was as follows; The proceeding by re-hearing, provided for in the act in relation to the judiciary, passed May 12, 1847, and modified in sections 7 aud 8 of the act to facilitate the determination of existing suits in the courts of this State, passed April 12, 1848, is hereby abrogated, so far as it relates to the appeals provided for in this section.