BOYLSTON V. VALENTINE et. al.

HORNBLOWER, C. J. The complaint is not sufficient to sustain this action. It charges Valentine with having been a tenant, but when, is not stated, nor does it any-where allege that he is tenant of the plaintiff. Nor does it charge the other two defendants as tenants except as under Valentine, by collusion.

Another error is that the justice did not charge the jury. His reading the statute to them is not giving a charge. There is an important distinction between constructive and actual possession, which he ought to have set forth in his charge.

In cases of collusion, under-tenants might be held jointly liable as fraud-doers; but separate possessions constitute separate tenants, and they must be sued in separate actions.

FORD, J. I would if possible get over the objections in this case, from a desire to render justice to the plaintiff; but the complaint is fatally defective..

1. It does not state who was landlord; and 2. mention when the tenancy expired.

It does not

RYERSON, J. One person may own land in fee simple, and another be a tenant thereof from year to year, and yet there may be no connection between them. The complaint does not state even, who is landlord of the defendant, nor when the term of tenancy expired, which it should do. The judgment must be reversed also for want of a proper charge by the justice. Actual possession of a landlord must be proved; constructive, is not sufficient to sustain this action.

The justice should have charged that in order to make the defendants jointly liable, their possession must be joint. Judgment reversed.

16 348

56 111

TEN EYCK v. FARLEE, admr. &c.

On rule to shew cause against a mandamus to Hunterdon Common Pleas to re-instate an appeal.

The rule to shew cause in this case, was granted at November term-ante 269.

Mr. Hartwell, now moved to make the rule absolute.

Hamilton, contra. The question is, have the Court of Common Pleas authority to make a rule in cases of appeal, that a jury trial shall be considered as waived, unless at the time of appointing a special term for hearing appeals, a jury trial is demanded? He cited the acts in Har. Comp. 5, and 302-and 6 Halst. 169. See also Har. Comp. 129.

HORNBLOWER, C. J. If the rule of the Hunterdon Pleas, were a convenient one, I would not willingly disturb it. Under the first act authorising special terms of Courts in certain counties, Har. Comp. 129, such a rule might be adopted; but by the last act on this subject, Har. Comp. 302, which extends to all the counties of the state, the legislature give a specific rule, requiring an express waiver of trial by jury. No rule of Court then is here wanted. Rules are made for cases in which the statute is silent. The Common Pleas in the present case have reversed the directions of the statute, and require a demand. of a jury; and put the party to the expense of continued entries of such demand. Their rule is oppressive and contrary to the statute.

FORD, J. A party has a vested right to his trial by jury, unless he waive it. Courts may prescribe the form of, but cannot dispense with the waiver.

The rule of the Common Pleas is contrary to the statute.

RYERSON, J. I concur in granting a mandamus. But I am inclined to think the Common Pleas may make a rule that the silence of the party, shall be construed as a waiver; but not to require a repetition of a demand of a jury. The last act extends the power of the Court to try jury causes, and, as I think, to make a rule that not demanding a jury, is a equivalent to a waiver. The language of the act does not require an express

CRANE ads. CONDIT.

waiver; but to compel a repetition of the demand of a jury, would be oppressive.

In this case a demand of a jury had been twice entered on the minutes of the Court.

Peremptory Mandamus ordered.

CRANE ads, CONDIT.

Matter of Practice.

Mr. Frelinghuysen, moved to set aside the judgment and execution in this case, with leave for the defendant to plead. The motion was founded on the defendant's affidavit of merits, surprise &c.

E. Vanarsdale, contra. Opposed the motion and read counteraffidavits of the sheriff and clerk: and objected that the defendant's affidavit was taken without notice to the plaintiff.And cited 2 Archb. Pr. 11; Coxe R. 400; 5 Johns, R. 60; ib. 355; 3 ib. 268, referring to 3 Caines' R. 97; 6 Wend, 517,

Frelinghuysen, replied and referred to 3 Halst. 160.

HORNBLOWER, C. J. The exception to the affidavit is not well taken. The rule requiring notice, applies to cases in which a rule to shew cause has been granted. Let the judgment be opened, but stand as security for the amount to be recovered.

FORD, J. The defendant swears to an expectation of compromise and that the entry of the judgment is a surprise. The usual practice of the Court has been followed in this case. Let the judgment be opened, and stand as security.

RYERSON, J. As the defendant's affidavit affects the rights of

HALSEY ads. VAN WAGENEN and OTHERS.

parties, I think it should be taken upon notice; and always so, unless on a motion for a rule to shew cause.

I doubt the propriety of granting the application.

Judgment opened, to stand as security for the sum which may be recovered.

HALSEY ads, VAN WAGENEN and OTHERS.

Matter of Practice.

0. S. Halsted, moved for leave to open the judgment in this case, upon reading the defendant's affidavit.

H. W. Green, for the plaintiffs, objected that the affidavit was taken without notice to them, and no copy of it served.

Mr. Halsted, referred to the case of Condit and Crane decided at this term.

HORNBLOWER, C. J. I always supposed that no notice of taking the affidavit of a party, is necessary.

The objection to the affidavit, being waived, it was read, stating that the judgment was entered by surprise, the joinder of issue on the demurrer, not being filed in time.

Mr. Green. The affidavit of a party, should not be heard on motion for rule absolute, to open a judgment; but only for a rule to shew a cause. Rules of Supreme Court, 20, affidavit, 1; S Halst. 160; 2 Archb. Pr. 11; Coxe R. 400; Allen ads. Den, Hendrickson, 3 Green, 102.

HORNBLOWER, C. J. I never understood the practice in this Court or at Westminster Hall, to be, that where a party's affidavit may be taken for a preliminary motion, that it must be

HALSEY ads. VAN WAGENEN and OTHERS.

on notice. If such be the rule, it ought to be altered. Every day's practice is otherwise. I cannot distinguish this case from that of Condit and Crane, (ante 349.) There was laches in that case, there is laches here. The defendant is an attorney of this Court, and should have attended to the case. The joinder in demurrer is a merly formal matter and much like a similiter on pleas of general issues. In the case of Livingston and Smith in the Circuit Court of United States, Judge Washington would not permit advantage to be taken on demurring to omissions or misplacing of names, but ordered the plea to be amended.

FORD, J. Laying aside any conversation out of doors between the parties, I see no necessity or utility of notice of taking an affidavit in such a case as this. The affidavit is good on a rule to shew cause. The plaintiff being in possession of a judgment and execution, can lose nothing by the rule applied for. The affidavit shews that the defendant has merits. Let the judgment be opened to let in a defence; the judgment and execution remaining as surety.

RYERSON, J. I entertain still my opinion expressed in the case of Condit and Crane. I think the old rule was either to give notice of taking affidavit, or serving a copy of it. The English practice, I believe, requires notice.

The Chief Justice observed, that there is no settled rule of practice in such cases.

BY THE COURT. Let the plea be amended during the term, as to the matter demurred to; and the judgment be opened, but standing together with the execution, as security for the plaintiff's claim.

Rule granted.