Original note to § 12. "This conforms substantially to the present notice, with an alteration which it is believed will be useful, requiring the statement of the day when the rule will be entered, that the defendant may know with certainty, within what time he must appear." 16. "New."

[$ 17 to 21, of subs. Tit. 1. Same as enacted.]

Original note to § 21. "Great difficulties are experienced in making a lessor in ejectment liable for costs, when he alleges that his name was used without his consent. But the most serious consequence of the present practice is, that it completely evades all our statutes against fraudulent conveyances. By uniting the name of different lessors in the same action, if a deed turns out to be void, the attorney has only to go back to the name of the grantor therein, and recover upon his title, although he has no interest whatever in the controversy, (1 J. Rep. 159, 5 do. 489,) and the possession will be taken by the attorney, nominally as the agent of such grantor, but really for the benefit of a client who had been declared to have no title whatever. Such a manifest contradiction between the principle of the law and the practice under it, it is conceived ought not to be permitted. In this, as in every other action, every plaintiff should stand on his own rights. The provisions of the preceding six sections will reach the evil, and it is confidently believed will tend effectually to prevent speculations in the purchase of pretended titles."

[$ 23 to 26, of subs. Tit. 1. Same as § 24 to 27 R. S.

Original note to § 26. "A tenant in common may now require this proof of the plaintiff, by entering into a special consent rule, (18 J. Rep. 398; 11 do. 451; 2 Cowen, 442.) As consent rules are proposed to be abolished, it becomes necessary to provide for the case. The rule prescribed in this section, seems just in any event; for the burthen of showing that some wrong has been done him, should always fall on the plaintiff who invokes the aid of a court of justice. The constructive ouster provided for, is described by Lord Mansfield in Cowper, 217, and is confirmed in 6 Cowen, 634."

[S 27, of subs. Tit. 1. Same as § 28 R. S.]

Original note. "In 3 Cowen, 356, the court held, that defendants sued jointly, could not enter into the consent rule separately; as the consequence would be, that the plaintiff would be obliged to prove separate possession. As the consent rule is abolished, the same object is attained by this section."

[S 28, of subs. Tit. 1. Same as § 29 R. S.]

Original note. "There is an apparent contradiction between the cases in 5 J. Rep. 278, and in 2 do. 438. The rule proposed in the preceding section, seems more equitable; for a plaintiff cannot well determine before the trial, whether the defendants occupy under a joint interest or separately, as he cannot be supposed to know their claims. To allow a verdict according to the respective rights or possessions of each defendant, will unnecessarily perplex the proceedings, while it will operate to exclude some who would otherwise be competent witnesses. The proceeding for the recovery of the mesne profits, will, under the provisions of this section, become much more simple, and justice can be done to each defendant."

[S 29, of subs. Tit. 1. Same as § 30 R. S.] Original note. "The object of this section is to carry out the principle of § 2-see note to § 7; and to give effect to § 12-see note to that section."

[S 30, of subs. Tit. 1. Same as § 31 R. S.] Original note. "Probably conformable to the present law. See 2 Cowen, 333."

[S 31, of subs. Tit. 1. Same as § 32 R. S.]

Original note. "To conform the proposed action to the existing practice. See 8 J. Rep. 495. If a plaintiff die before issue, it is not perceived how an abatement of the suit can be prevented; and according to the present practice, much difficulty must be experienced in delivering possessions in such a case."

[§ 32, 33, 34, of subs. Tit. 1. Same as § 33, 34, 35 R. S.] Òriginal note to § 34. "To carry out the principles of this Title."

S 35, 36, 37, of subs. Tit. 1, as reported; enacted with alterations. Original note. "These sections are proposed, in order to prevent the endless litigation which may now be carried on by actions of ejectment. They extend the present practice of the court in a peculiar class of cases, those relating to military lots (see 5 Cowen, 207), to all cases, and leave the relative rights of the parties as they were. Although a defendant who has failed in an ejectment may bring another, yet his situation is materially changed; for he can no longer rely on his possession, unless it had continued 20 years. (See 6 Cowen, 751.) The principle of the preceding sections, is believed to be more just in preventing the consequences of unavoidable accidents, and in preserving the questions between the parties as they stood; while the relief proposed, will be as effectual, and less expensive, than the present mode, and will afford some chance for the ultimate termination of the controversy."

[S 40, 41, of subs. Tit. 1. Same as § 43, 44 R. S.]

Original note to § 41. "This and the succeeding sections are intended to obviate the necessity of a new action to recover mesne profits. The parties being in court, expedition, economy and simplicity, will be attained, by allowing proceedings at once on the judgment." [$ 43, of subs. Tit. 1. Same as § 46 R. S.]

Original note. "11 J. R. 405, 461. The latter part is new, and is intended to vary the law as expounded in 2 J. R. 369. As the right to mesne profits depends on the right to the land, the party who has established such right, ought not to be liable, in any event, to pay them."

[S 44, 45, of subs. Tit. 1. Same as § 47, 48 R. S.]

Original note to § 45. "As the law now is, the time of the demise laid in the ejectment is conclusive in the action for mesne profits, 4 Cowen, 329; 1 J. C. 281; 7 Cowen, 36. A time which in that section is quite immaterial, if it be only after the plaintiff's right accrued, and which the defendant therefore could not contest, although subsequently conclusive upon him. It is believed that both the action of ejectment and the proceedings to recover mesne profits, will be made more simple and practical, by separating the matters that belong to cach, and applying them in their proper places."

[S 46, of subs. Tit. 1. Same as § 49 R. S.]

Original note. "The first part of the section intended to embrace the

case in 4 Cowen, 168. But as he thus would be remunerated only the principal expended by him, he would still be liable to pay the interest on his own principal, that is, for the use of his own improvements, if the latter part of the section were not added. The same rule of justice would apply to both. And no ground is perceived, on which to justify the rule that would give to a claimant, who thinks proper to lie by and see another reaping the fruits of his own industry, a compensation for his indolence. The same principle above proposed, now exists in the case of a widow claiming dower."

[S 47, of subs. Tit. 1. Same as § 50 R. S., except that the concluding words of the reported § "immediately preceding the time when such damages shall be assessed," were stricken out by the legislature.] Original note. "This is the present rule in the actions for mesne profits. This section prevents the necessity of pleading the statute of limitations."

[S 51, of subs. Tit. 1. Same as § 54 R. S.] Original note. "As the mesne profits are personal assets, this section is necessary to enable the executors, &c., to recover them."

"TITLE IV. Of the partition of lands owned by several persons."

[Enacted as Title 3 R. S.]

IS 1. Same as enacted.]

Original note. "1st and 5th sections of the act for partition of lands, vol. 1, p. 507; 10th section of same act, p. 512, as to the degree of interest requisite. The words 'being of full age,' inserted in conformity to the decision of supreme court in 11th John. 446; the words 'be in actual possession,' inserted to remove a doubt which rests on the present statute, more fully explained in a note to § 7."

[S 2, 3. Same as enacted.] Original note, "8th section of same act, p. 512, with the addition of notice to such minors as are in this state. It is supposed that the minors or their friends, ought to have an opportunity of being heard in the selection of guardians."

[S 6, 7. Same as enacted.]

Original note to § 7. "§ 1, 14 and part of 15, of same act. By the 15th section, a person claiming dower may be made a party; but the supreme court in 15th John. Rep., 319, decided that she could be made a party only when her husband was a tenant in common. It will be proposed in subsequent sections to allow a compromise with a widow on the payment of a gross sum, or its investment, so as to extinguish the claim of dower, which often operates most injuriously to heirs in the sale of lands under the partition acts."

[$ 8, 9. Same as enacted. § 8 R. S. amended by act of 1830, chap. 320, § 40.]

Original note to § 9. "Where the premises are ordered to be sold, great difficulties occur under the existing statute, in regard to incum brances. The Revisers have attempted to remove these difficulties in a subsequent part of this Title. Where the premises are divided, there is no necessity for making incumbrancers parties, nor need they in any way be noticed in the proceedings. It is, however, thought useful distinctly to declare the rule contained in § 8, and to enact that contained in § 9. The provisions of the latter section are obviously

just, as they place the incumbrancer in precisely the situation in which a purchaser at a judicial sale, under his incumbrance, would be placed, if no partition had been made."

[Original note to amendment in § 8, made by act of 1830, and to § 10 of this edition, inserted by act. See post page 713, after remarks on § 61 to 65.]

[S 10, 11, 12. Same as enacted. Original note. "2d section of same act, p. 507, varied, in requiring one of the publications to be in the county, as calculated to give more publicity; and varied as to personal service."

[S 13, 14. Same as enacted.] Original note. "§ 14 new; intended to settle a doubtful point of practice.'

S 16, 17, 18, 19 enacted with alterations, § 16, 17, 18 R. S.

Original note to § 16, 17, 18, 19. "The four last sections are from § 3 of same act, varied so as to allow parties to plead separately, and one defendant to deny the rights of a co-defendant. Great difficulty is experienced under the present law, when defendants are improperly united, which may sometimes be done intentionally so as to prejudice a bona fide defendant, who has no means at law of contesting the claims of a co-defendant. The whole proceeding is more akin to a bill in equity, than an action at law, and the remedies at law ought so far to follow the practice in chancery, as at least to protect parties. Doubts exist whether the right of the petitioner can be tried in this action. This is declared. As the partition act gives no execution to enforce the division made, it would seem that the parties must still resort to their action of ejectment to obtain possession, and thus the delay and expense of two proceedings must be had. It is believed that the policy of the act will be promoted, by requiring that the petitioners shall be actually in possession of some part of the premises. From a recent decision of the court of errors, in the case of Brommagem and Clapp, 9 Cowen, it would seem that such is the present law." [S 20, 21. Same as § 19, 20 R. S.]

Original note to § 21. "Part of 3d § of same act, p. 508, and act of 1821, p. 122, varied so as to guard the rights of the person made defendant, and instead of amending the petition according to the fact as it may be found, to amend it according to the claims; otherwise the petitioner would be deprived of his writ of error by an improper amendment, which he has no means of rectifying."

[S 22. Same as § 21 R. S.] Original note. "New, but necessary to complete the provision of the act of 1821."

[S 23, 24. Same as § 22, 23 R. S.] Original note. "The two last sections are from § 3, 1 R. L., 508, and are intended to declare more clearly the duty of the court, particularly in case of default."

[S 25. Same as § 24 R. S.] Original note. "Part of § 3 of same act, p. 509; expressions slightly varied, so as to express the intent of the act more clearly; and part of § 15, p. 513, relative to the duty of the court."

66

[$ 26 to 32. Same as enacted.] Original note. "§ 31. New in form, but according to the provisions of the act and the general principles of law. The last five sections are from $4 and 9 of the same act, with supposed improvements respecting the manner of allotting shares,

so as to render the report, which becomes matter of record, certain and specific."

[S 33 to 36. Same as enacted.] Original note to § 36. "Conformable to decision of the supreme court in 15 J. R., 319."

[S 37 to 41. Same as enacted.]

Original note. "§ 41. Part of § 5 of same act, 1 R. L., p. 510, with the addition of the part relating to giving credit on sales, which is suggested as a safe mode of making the investments required by law, while it increases the probability of selling the property at a fair price. In practice, the interests of unknown owners are generally sacrificed on such occasions."

[S 42. Same as § 42 R. S. New § substituted by act of 1830, chap. 320.]

Original note. "New. This and the succeeding six sections are proposed, to provide for defects in the existing law respecting incumbrances. See note to § 48."

Original note to act of 1830. See post after § 61 to 65. [S 48. Same as enacted § 49 R. S.]

Original note. "These sections, from § 42, are new. From the language of the latter clause of the 15th section of the act of 1813 (1 R. L., 513), it would seem that the legislature intended to secure to the purchaser a perfect title; but it is apparent that this object cannot be attained, without calling in the incumbrancers, and ascertaining and paying off their liens. It has been decided, that in a suit in equity for partition, the incumbrancers cannot be made parties; and there is no provision for making them parties to a proceeding by petition. Nor is there any provision for calling on them to prove their liens after the sale. In this state of the law, much difficulty and embarrassment have been felt; and it seems indispensable that some provision should be made. In the preceding sections, the Revisers have adopted the practice of the court of chancery in cases somewhat analogous, as their basis; and have endeavored to extend that practice, so as to reach the various cases which were necessary to be provided for. [S 49. Same as § 50 R. S.] Original note. "Laws of 1814, § 1, p. 229, extended to the cases of tenancies by the curtesy and for life, generally, as being equally within the equity and policy of the act. Varied also, in requiring regard to be had to the interests of all the parties, instead of any one of them."

[$ 50. Same as § 51 R. S.] Original note. "§ 15, 1 R. L. 513; and act of 1814, p. 229. In 15 J. Rep. 319, the court held that a widow's right of dower could not be set off in partition, but that under the act of 1814, it might be sold."

[S 51, 52. Same as § 52, 53 R. S.] Original note to § 52. "§ 15, 1 R. L. 513, and act of 1814, p. 229, extended to the cases of tenancies in curtesy and for life."

[S 52. Same as § 54 R. S.] Original note. "New. Declaratory of the rule. The whole money thus brought in, is to be invested, and the interest paid annually to the owner. See § 64.”

[$ 56. Enacted with material variations 58 R. S. § 57, 58, 59. Same as 59, 60, 61 R. S.]

Original note. "The four last sections are from § 5 of same act, p.