TITLE XXII. CHAPTER 107. Certain bonds, when sufficient. Amending defects in bond,and one. SEC. 41. Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conform thereto substantially, and do not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given. SEC. 42. Whenever such bond shall be defective in any respect, the substituting new court, officer or body who would be authorized to receive the same, or to entertain any proceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, or may, on the application of the person required to give such bond, allow a new one to be substituted in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such defective bond. When prisoners execution. SEC. 43. When any defendant, at the time judgment shall be rento be charged in dered against him, in any court of record, shall be in the custody of a sheriff or other officer, either upon process in the suit in which such judgment shall have been rendered, or upon being surrendered in discharge of his bail in such suit, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after the last day of the term next following that at which such judgment shall have been obtained. Ib. When prisoner discharged by supersedeas. Submission of cause upon a case made by the parties. Notice of justification in slander or libel, no proof of malice. Entitling declarations, &c. SEC. 44. When any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall be thereupon exonerated, the plaintiff in such judg ment shall charge such defendant in execution thereon, within three months after such surrender, or if an execution against the property of such defendant shall have been issued, within three months after the return day of such execution. SEC. 45. If any plaintiff shall neglect so to charge any defendant in execution, as required by the two last preceding sections, such defendant may be discharged from custody by a supersedas to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and after being so discharged, such defendant shall not be liable to be arrested upon any execution which shall be issued upon such judgment. SEC. 46. The parties to any civil cause depending in any court of record, may agree upon a case containing the facts relating thereto, and submit the same to said court; and the court shall thereupon determine and render judgment in such cause, in the same manner as upon a special verdict finding such facts. SEC. 47. If the defendant in any action for slander or for publishing a libel, shall give notice in his justification, that the words spoken or published were true, such notice, though not maintained by the evidence, shall not in any case be of itself proof of the malice charged in the declaration. SEC. 48. It shall not be necessary to entitle any declaration or other pleading, of any term of the court, or of any day in term or vacation, nor shall it be necessary to mention the name of the state, in the statement of the venue in any case. TITLE XXII. CHAPTER 107. be maintained on SEC. 49. In all cases arising upon contracts under seal, or upon judgments, when an action of covenant or of debt may be maintained, an action of assumpsit may be brought and maintained, in the Assumpsit may same manner in all respects, as upon contracts without seal; and no sealed instrubond, deed of conveyance or other contract in writing, signed by any ments. party, his agent or attorney, shall be deemed invalid for want of a seal or scroll affixed thereto by such party. tion of loss of SEC. 50. It shall not be necessary in any action on the case for se- In action for se duction hereafter to be brought, to allege in the declaration, or to duction, allegaprove on the trial, any loss of service in consequence of such seduction; service unneces but if the female seduced be a minor at the time of the seduction, the sary, &c. action may be brought by her father, mother, or guardian; and if such female be of full age, the action may be brought by her father, or any other relative who shall be authorized by her to bring the same. SEC. 51. It shall not be necessary in any such action to allege or Proof that perseduced was the servant of the plaintiff, but in- servant of plainprove that the person stead thereof, it shall be sufficient to set forth in the declaration the tiff unnecessary. relationship of such person to the plaintiff, or that such person is the ward of the plaintiff, as the case may be. son seduced was SEC. 52. The two last sections shall not be so construed as to pre- Construction of vent any person entitled to the services of the person seduced, from two last sections. maintaining an action for the loss of service or other damage sustain ed by him in consequence of the seduction. TITLE XXIII. CHAPTER 108. TITLE XXIII. OF SUITS RELATING TO REAL PROPERTY. Chapter 108. Of the Action of Ejectment. Chapter 109. Of the Partition of Lands owned by several Persons. Chapter 111. Of Trespass on Lands. Chapter 112. Of Actions for Private Nuisances. Chapter 113. General Provisions concerning Actions relating to Ejectment retained. Extended to oth. er cases 10 Wend., 104. Dower. 9 Wend., 309. 10 do. 531. Who to be plaintiffs. Who to be defendant. How commenced &c. CHAPTER 108. OF THE ACTION OF EJECTMENT. SECTION 1. The action of ejectment is retained, and may be brought in the cases and in the manner heretofore accustomed, subject to the provisions hereinafter contained. SEC. 2. The action of ejectment may also be brought, 1. In the same cases in which a writ of right may now be brought by law to recover lands, tenements, or hereditaments, and by any person claiming an estate therein, in fee or for life, either as heir, devisee or purchaser : 2. By any widow entitled to dower, or by a woman so entitled and her husband, after the expiration of six months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments. SEC. 3. No person can recover in ejectment, unless he has at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof, to be proved and established at the trial. SEC. 4. If the premises for which the action is brought, are actually occupied by any person, such actual occupant shall be named a defendant in the declaration; 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 suit; and all persons claiming any title to the premises adverse to that claimed by the plaintiff, may in all cases be made defendants in such action. SEC. 5. The suit shall be commenced by the filing of a declaration, entering a rule to plead, and serving of a copy of the declaration and notice of the rule to plead, in the same manner as in personal actions, except as hereinafter provided; and in such declaration the names of CHAPTER 108. the real claimants shall be inserted as plaintiffs, and all the former TITLE XXIII. provisions of law concerning lessors of a plaintiff shall apply to such plaintiffs. abolished. SEC. 6. The use of fictions (fictitious) names of plaintiffs or defend- Fictitious parties ants, and of the names of any other than the real claimants and the demises, &c., 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. 10 Wend., 414. 170. SEC. 7. It shall be sufficient for the plaintiff to aver in his declara- Contents of detion, that on some day therein to be specified, and which shall be claration. after his title or right accrued, he was possessed of the premises in 12 do. question, describing them as hereinafter provided, and being so possessed thereof that the defendant afterwards, 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. ed. SEC. 8. In such declaration the premises claimed shall be descri- Premises claimbed with such convenient certainty, by setting forth the section or part ed, how describof a section. township and range, or the number of the lot, or otherwise, that from such description possession of the premises claimed may be delivered. Undivided titl. SEC. 9. If such plaintiff claims an undivided share or interest in any premises, he shall state the same particularly in such declaration, shares. SEC. 10. If the action be brought for the recovery of dower, the Estate of plaindeclaration shall state that the plaintiff was possessed of the one un- 9 Wend., 309. divided third part of the premises, as her reasonable dower as widow 11 do. 594. of her husband, naming him. In every other case the plaintiff shall 12 do. state whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives, or the duration of such term. 139. SEC. 11. In any case other than where the action is brought for the Several counts and plaintiffs. recovery of dower, the declaration may contain several counts, and 7 Wend., 470. several parties may be named as plaintiffs, jointly in one count, and separately in others. costs. SEC. 12. All the provisions of law relating to the endorsement of Security for declarations as security for costs, and the liability of endorsers in cases of personal actions, commenced by declaration, shall be applicable to the action of ejectment. occupant. SEC. 13. If the premises are actually occupied, the declaration Service of decla shall be served by delivering a copy thereof, with the notice above ration, &c., on prescribed, to the defendant named therein, who shall be in the occupation thereof, personally, or by leaving the same with some person of proper age, at the dwelling house of such defendant, if he be absent. premises unoccu SEC. 14. If any defendant named in such declaration shall not oc- Service of decla cupy the premises claimed, the declaration and notice shall be served ration, &c., when on such defendant personally, or if he cannot be found, by leaving the pied. same with some person of proper age, at the residence of such defendant. essary. SEC. 15. But when the declaration shall have been served in any special order of other manner than upon the defendant personally, no default for not court when necpleading shall be entered without the special order of the court. 12 Wend., 180. SEC. 16. Upon filing the certificate of the sheriff, or an affidavit of When and how the due service of a copy of the declaration and notice of the rule appearance and default may be 62 entered. TITLE XXIII. to plead personally on the defendant, his appearance shall be entered; CHAPTER 108. and in case he shall neglect to plead within the time prescribed by such rule, his default for not pleading may be entered in like manner as in personal actions. Authority of plaintiff's attorney. 10 Wend., 568. Affidavit to be made. Order on application. Evidence of authority. When applica tion to be dismissed and defendant to pay custs, &c. Pleadings, &c. Evidence under plea. Right to possession sufficient, &c. Lease, entry and ouster, &c. Ouster to be proved in certain cases. 10 Wend., 414, 531. SEC. 17. A defendant in ejectment may at any time before pleading, apply to the court, or to any judge thereof, or circuit court commissioner in vacation, to compel the attorney for the plaintiff to produce to such court or officer, his authority for commencing the action in the name of any plaintiff therein. SEC. 18. Such application shall be accompanied by an affidavit of the defendant, that he has not been served with proof in any way, of the authority of the attorney to use the names of the plaintiffs stated in the declaration. SEC. 19. Upon such application, the court or officer shall grant an order requiring the production of such authority, and shall stay all proceedings in the action, until the same be produced. SEC. 20. Any written request of such plaintiff or his agent, to commence such action, or any written recognition of the authority of the attorney to commence the same, or any verbal authority, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority. SEC. 21. If it shall appear that previous to such application by any defendant, he was served with the affidavit of the plaintiff's attorney, showing his authority to commence such action, such application shall be dismissed, and such defendant shall be liable for the costs of resisting such application, the payment of which may be compelled by attachment as in other cases, which may be issued upon proof of disobedience to the order of the court or officer directing the payment of such costs. SEC. 22. The defendant may demur to the declaration as in personal actions; or he shall plead the general issue only, which shall be the same as in personal actions, and the filing and service of such plea or demurrer shall be deemed an appearance in the cause, and upon such plea the defendant may give the same matter in evidence, and the same proceedings shall be had, as upon the plea of not guilty in the present action of ejectment. SEC. 23. Upon such plea, the defendant may give in evidence any matter which, if pleaded in the present writ of right or action of dower, would bar the action of the plaintiff. SEC. 24. It shall not be necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises, at the time of the commencement of the suit, as heir, devisce, purchaser or otherwise. SEC. 25. It shall not be necessary on the trial for the defendant to confess, nor the plaintiff to prove, lease, entry and ouster, or either of them, except as provided in the next section; but this section shall not be construed to impair, nor in any way to affect, any of the rules of evidence now in force, in regard to the maintenance and defence of the action. SEC. 26. If the action be brought by one or more tenants in common, or joint tenants, against their co-tenants, the plaintiff, in addition to all other evidence which he may be bound to give, shall be required to prove on the trial of the cause, that the defendant actually ousted |