510, varied as to selling distinct lots, forbidding commissioners and guardians to purchase, and requiring returns to be specific and on oath; all which are deemed necessary to supply evident omissions."

[$ 61 to 65. Same as § 63 to 67 R. S. $ 63 of this edition, inserted from act of 1830, chap. 320.]

Original note to various amendments made by the act of 1830. "From the nature of the subject it seems almost impossible so to provide for disposing of incumbrances, in cases of partition, as to avoid complexity and expense. The defects of the old statute in this particular, were so great that the Revisers were earnestly solicited to devise a remedy. The plan of directing the clerk of the court to ascertain and pay off the liens was, therefore, proposed and adopted; but under the existing system, the offices in which liens are to be sought for are so numerous, and the expenses, difficulties and hazards of making searches so great that it seems necessary to substitute some simpler mode. After much reflection, and with the aid of the valuable suggestions of a judicial officer whose duties have made him familiar with this difficult subject, the preceding amendments (amendments to § 8 and 44 R. S. and new sections 10, 43, 44, 45, 63, of this edition), are proposed, not as entirely free from objection, but as the best which can now be suggested."

[$ 66, 67. Same as § 68, 69 R. S. § 68. Same as § 70 R. S., except that the first clause was inserted by the legislature. 69. Same as $ 71 R. S.]

Original note. "The four last sections are entirely new. The 7th section of the act, p. 511, directs investments to be made and securities to be taken, but omits any direction of the person to whom, and any regulations for the prosecution of the securities, or the application of the moneys. The above sections are drawn in conformity to the practice of the court of chancery."

[S 70. Same as § 72 R. S.] Original note. "6th section of same act, 1 R. L. p. 510, omitting the part that relates to costs where premises are sold, as being provided for by § 60, and curtailing and simplifying the language."

[S 71. Same as 73 R. S.] Original note. "New; but deemed essential to prevent vexatious applications, and as just in this as in any other case.'

[S 72 to 76. Same as § 74 to 78 R. S.]

Original note to § 76. "The last three sections are from 12th section of same act, with an entire new provision, intended to supply an omission in the present act, which gives no remedy where an improper partition has been made, as between co-defendants and co-plaintiffs. The plaintiff may have obtained his rights and have no interest in deciding those of the respective defendants, and his judgment should not be reversed for an error in that respect. The defendants may be contented with their partition, and yet injustice may have been done, as between the plaintiffs, which the defendants ought not to be required to assist in settling. The proceedings for partition are so anomalous, that a departure in this respect, from the common practice, seems necessary to do justice between the parties. A case occurred in the court of errors in the winter session of 1827, where it

seemed admitted that a party might singly bring error, but attended with much difficulty, from the want of necessary legislative provisions."

[S 77 to 89. Same as § 79 to 91 R. S. of 1830, chap. 320, § 48. § 83, 84, 88, inserted from acts of 1830, chap. 320; chap. 227.]

§ 80 R. S. amended by act 91, 94, 95, of this edition, 1831, chap. 200; and 1833,

Original note to § 86 ($ 88 R. S). "2d section of act of 1814, p. 129, improved in its details." To § 89 (§ 91 R. S). "4th section of act concerning idiots, &c., extended to the case of persons of unsound mind, as being within its principles; vide 2d John. Ch. Rep. 232."

[S 90. Same as § 94 R. S.] Original note. "13th section of same act, p. 512, varied, by omitting the last clause, which declares that the proceedings shall not aid any claim not barred by the statute of limitations. Its meaning or use is not perceived; on the contrary, it seems calculated entirely to mislead."

[S 91. Same as § 95 R. S.] Original note. "19th section of same act, 1 R. L. p. 515, varied so as to make future proceedings conform to this Title."

"TITLE V. Of the writ of nuisance." [Enacted as Title IV, R. S.] [S1. Same as enacted.]

Original note. "The common law remedies by assize of nuisance, and by quod permittat, are never resorted to in this state; the usual remedies being either by action on the case, or by bail in equity. It is conceived, however, that by simplifying the proceedings in the old writ, it may be made a very useful remedy, especially as it is a part of the judgment that the nuisance be abated. An attempt has been made in the following sections to effect this object."

[S 2, 3. Same as enacted.] Original note to § 3. "The above writ is in part conformable to the ancient writ, and is framed in analogy to those before given in this chapter."

[S 5. Same as enacted.] Original note. "Analogous in principle to the old action, and in form to the preceding titles."

[S6. Same as enacted.] Original note. "Upon an assize of nuisance, the jury must always view the premises; but it seems to be unnecessary except in special cases.'

[S 7. Same as enacted.] Original note. "Conformable to the ancient law. 3 Bl. Comm. 222. See form of the judgment, Coke's Entries, 926. Rastell's Entries, 441."

"TITLE VII. Of waste." [Enacted as Title V, R. S.]

[S 1. Same as enacted.] Original note. "1 R. L. 62, § 2 and 3, condensed, omitting the last clause of § 3, which will be found in § 9 of this Title. Italics inserted to remedy what seems a defect. See 13 J. R. 261."

[S 2. Same as enacted.] Original note. "1 R. L. p. 63, § 67, condensed, and last clause omitted as unnecessary."

[S 3. Same as enacted.] Original note. “Ib. § 5, co-partners omitted, as we have no such estate in this state."

[S 4, 5. Same as enacted.] Original note to § 5. "Substantially conformable to the present writ. In regard to security and summonses,

the same alterations have been made, as in the writ of right, and the writ of dower."

[$ 6. Enacted with alterations § 6 R. S. § 7. Same as § 8 R. S.] Original note to § 7. "By the present practice, as regulated by statute, (1 R. L. 62, § 4,) the defendant, if he do not appear at the return of the original writ, is to be attached; if he still fails to appear, a distress is awarded; if he makes default on the distress, a writ of inquiry is awarded, as above provided. The delay to which a party may be subjected, in compelling an appearance in this manner, is probably one of the causes which has occasioned the disuse of the action."

[S 8. Same as § 9 R. S.] Original note. "According to the present practice, the jury must, in all cases, have a view. This is retained where the defendant makes default, (§ 7,) but it is conceived to be unnecessary where the defendant appears and pleads to issue, unless in special cases, for which provision is made, by authorizing an application to the court."

[S 9 to 12. Same as § 10 to 13 R. S. except that the word "third,” was substituted by the legislature for "fifth," in § 13. § 13. Same as § 14 R. S. except as in the last §. § 14. Enacted with variations in 15 R. S. § 15, 16. Same as § 16, 17 R. S. except "third" substituted for "fifth," in § 16.]

Original note. "The last seven sections are proposed instead of § 5, 1 R. L. 63. The remedy afforded by that section seems wholly inadequate, and the provision itself is utterly defective. How is the defendant to be compelled to make his election? and who is to assign his portion? The plaintiff's wrongs should be redressed, at all events, which they cannot be, if the defendant refuses to elect, and happens to be insolvent. If, however, the existing law should be preferred, the two following sections, marked A and B, may be substituted for the preceding, from § 10 inclusive."

[S 17. Same as § 18 R. S.] Original note. "1 R. L. 88, § 29, extended to actions of ejectment."

[S 18. Same as § 19 R. S.] Original note. "New; implied perhaps in the existing law, but obviously necessary."

[S 19. Same as § 20 R. S.]

Original note. "New. By the act of 1820, authorizing a redemption, and suspending the execution of the deed until fifteen months after the sale, provision is made for restraining the defendant or any other person in possession, from committing waste. (Laws of 1820, p. 168, 5.) Upon the same principle, it is conceived, that the purchaser or party receiving the deed, should be permitted to recover the damages he may have sustained by such waste. The action of trespass is also given, because the possession may have been obtained without suit."

[$ 20, 21. Same as § 21, 22 R. S. except that the words "doing no permanent injury to the freehold," were inserted by the legislature in the latter section."

Original note to § 21. "The extent to which the defendant, or whoever may be entitled to the possession of the land sold, may go, in the use of the land and of wood and timber thereon, is not prescribed.

The above section, it is supposed, will define his rights with the proper limitations."

[S 22. Same as § 23 R. S. except that the words "or to any circuit judge," were inserted by the legislature.] Original note. "Laws of 1820, p. 168, § 5, extended to the case of threatened waste, and to the chancellor, circuit judges and supreme court commissioners."

[S 23 to 28. Same as enacted § 24 to 29 R. S.] Original note. "The four last sections are deemed necessary to provide the means of enforcing the order and to regulate the proceedings."

"TITLE VIII. Of trespass on lands." [Enacted as Title VI, R. S.]

[S 1. Same as enacted, except that the words after "jury," were added by the legislature.]

6

66

Original note. "§ 29 of the act for the amendment of the law, 1 R. L. 525, omitting all that relates to trespass on public lands, such trespasses being provided for in the revision of the act of 1826, (p. 211,) which was incorporated in Chapter IX, Part I. The expressions of the statute treble the value of the wood,' &c., are varied as above, in order to render the law more explicit, and conformable to the exposition given of it in 1 Cowen, 160 and 548, and 14 Johns. Rep. 328." [$ 2, 3, 4. Same as enacted, except that in § 4, the words after "jury," were added by the legislature.] Original note. “§ 22, 1 R. L. 524, providing for amends being made in an action of trespass, is omitted, as the same principle will be adopted and extended to all cases in Title 18 of ch. 8, of this part."

"TITLE IX.-General provisions concerning actions relating to real property." [Enacted as Title VII, R. S.]

[S 1. Same as enacted.] Original note. "5th section of the act to prevent alienations, &c. 1st R. L. p. 183, varied so as to require the reversioner, &c. to come in without waiting to see the strength of the plaintiff's title."

[S 3. Same as enacted. § 4. Same as § 6 R. S.] Original note. "1 R. L. p. 184, § 9, varied."

[$ 5, 6, 7. Same as § 7, 8, 9 R. S.] Original note to § 7. “Latter part of 10th section of same act, 1st R. L. p. 184, which gives the same remedy as to lessee for years, and to the latter, the same remedy as tenants of the freehold."

[S 8, 9. Same as § 10, 11 R. S.] Original note to § 9. “1 R. 80, 2, conformed to the decision in 5 Cowen, 188."

L. p.

[S 10. Same as § 12 R. S.] Original note. "The first part of this section is a consolidation of several special provisions. The latter is new in form."

[S 11, 12, 13. Same as § 13, 14, 15 R. S.] Original note. "In 3 Caines' Rep. 82, and in 9 J. Rep. 83, the supreme court held, they had no power to authorize a survey, so as to protect the party from an action of trespass; but stated, that they would stay proceedings until a consent for such survey was given. The resort to this indirect mode of coercing a party, shows that the exercise of such a power is sometimes indispensable, and that the only obstacle to reaching the object directly, was the want of authority in the court. It is obvious, that

where the defendant refuses to consent to a survey, the mode of coercion suggested by the court, would be fruitless. The case, therefore, seems to require legislative provision. Such provisions as those in the three last sections, seem to protect the right of all parties, and to attain the ends of justice. They will render a view unnecessary in almost every case. The difference in principle between authorizing a jury with their attendants to go upon premises to view them, and permitting a party to take surveyors for the just purposes of a suit, is not perceived."

[S 14. Same as § 16 R. S. except that the words "in any action for the recovery of real estate or the possession thereof," were inserted by the legislature.]

Original note. "View is rarely demanded except for delay, and will generally be unnecessary under the foregoing provisions of this Chapter, by which the plaintiff is required to describe in his writ or declaration, the premises in question. Still further to protect the defendant the practice of requiring a bill of particulars, which prevails in ejectment, is extended to all actions."

[S 15. Same as enacted § 17 R. S.]

Original note. "Imparlances are generally resorted to for the mere purpose of delay; and all the valuable purposes for which they were allowed, may be attained by applying for an enlargement of the time to plead as in personal actions. Voucher causes enormous delay, and is used for that purpose. It was a favorite object, in the ancient courts, to decide all controversies concerning the same land in one suit: Hence voucher, aid-prayer, and receipt.

"When the tenant claims the land under a deed containing a clause of warranty, he may vouch his grantor to warranty; that is, may call upon him to defend the land. If the warrantor appear and admit the warranty, he becomes defendant; and then if judgment be rendered for the demandant, it is that he recover against the tenant, and that the tenant recover over against the vouchee, other land equal in value to that which he has lost. If the vouchee has no land, the latter judgment is nugatory. As the supreme court have decided that a clause of warranty is a personal convenant, the tenant has a far more efficient remedy by an action of covenant, than voucher. When a tenant vouches, a summons ad warrantizandum issues; and if that be not returned "summoned and proclaimed," an alias, and then a pluries, issues: after which, a sequatur sub suo periculo, is awarded. This consumes four terms. When the voucher appears, he may vouch over, or call upon his warrantor; and so on ad infinitum. The vouchee may also deny his warranty; and then a controversy ensues between him and the tenant, which has to be tried; during the continuance of which, the principal suit stands still.

"Aid-prayer, is where a tenant for life, being sued, calls on his reversioner or remainderman to assist him. A summons ad auxiliandum issues; and the proceedings are very similar to those respecting voucher. Aid-prayer cannot be necessary for the tenant, if he gives notice of the suit.

"Receipt, is where a reversioner or other person having an estate in the land, prays to be received to defend a suit brought against the