but it did not authorize him to demand, as he did in this case, that the trial should be had in New York. The object of the 105th section was to enable the defendant to bring back the cause for trial to the county which the plaintiff ought to have selected under the 103d and 104th sections. It is the obvious intention of the statute, that the cause shall be tried in the county designated by sections 103 and 104, unless the place of trial is changed by the court on motion. The defendant's demand, therefore, was irregular, and can have no influence upon this motion.

But the defendant now moves to change the place of trial to New York, under the 49th section of the Judiciary Act, (Laws of 1847, page 333,) which is still in force.

The plaintiff objects, in the first place, that issue was not joined in the action, when the notice of motion was served. (3 How. Pr. Rep. 72.) It is stated, in Mr. Millard's affidavit, "that the reply had not been served" when the papers for the motion were served. But it does not appear, from the affidavits, whether a reply has since been served, nor is it shown that the time to reply has been extended, nor that the plaintiff denied, or intended to controvert any material allegation in the answer.

Mr. Brewster's affidavit states that the answer was put in on the 14th of October last. An examination of the answer shows that most, if not all, of the material allegations in the complaint are denied. It is shown, by affidavit, that the motion papers were served on the defendant's attorney on the 4th of November last, which was more than twenty days after the service of the answer. The time, therefore, for the plaintiff to reply, under section 131 of the code, had elapsed.

By section 205 of the code, an issue of fact arises,

1. Upon a material allegation of the complaint controverted by the answer, or

2. Upon new matter in the answer controverted by the reply, or 3. Upon new matter in the reply.

The time for replying having elapsed, there was no issue of fact to be tried in the cause, except those arising on the allegations of the complaint controverted by the answer. The objection that issue was not joined, and that for that reason this motion is prematurely made, can

not therefore be sustained.

Upon the merits of the motion, I think there are good reasons shown for trying the cause in New York. The parties both reside there, and though the cause of action arose in Saratoga, it is shown that many facts and circumstances which occurred in the city of New York must necessarily be given in evidence on the trial. It appears also that there are

more witnesses residing in New York than in Rensselaer. The stipulation offered by the plaintiff will not avail him to retain the cause in Rensselaer.

The motion to change the place of trial is therefore granted.

SUPREME COURT.

JAMES MYERS agt. DAVID RASBACK et al.

THE SAME agt. WILLIAM G. BORLAND et al.

The old suit in equity for the "partition of lands" is now merged in the "civil actions" under the code, and as such, may be prosecuted by summons and complaint. It is a "regular" proceeding, inasmuch as it is prosecuted by and against regular parties, and according to the same forms of proceeding and rules of practice with other actions under the code. Proceedings for partition by petition under the Revised Statutes, (title 3, chap. 5, part 3,) are saved by the code; and such proceedings may also be instituted, and are just as valid now as before the code became a law. (See Traver v. Traver, 3 Howard's Pr. Rep. page 351.)

Herkimer Special Term, June, 1849.-Demurrer to Complaint.

A. LOOMIS, for plaintiffs.

J. A. RASBACK, for defendants.

GRIDLEY, Justice. These are suits brought under the code for the partition of lands; and the defendants have demurred to the complaints on the ground that this class of actions has not been provided for by that instrument.

It is said that the 390th section of the code prohibits the bringing of such actions, and continues in force all the statutory provisions of the Revised Statutes on the subject of partition. It does very clearly save those provisions; and a proceeding upon petition conducted in the manner prescribed in those enactments, would be just as valid now, as it would have been before the code became a law. The reasoning of Justice Barculo, in the case of Traver v. Traver, (3d Howard's Sp. T. Rep. 351,) seems to me conclusive upon the construction of the section under consideration.

But it does not necessarily follow, that an action for partition cannot be prosecuted by summons and complaint under the code. The section in question does not prohibit the bringing of such an action. It merely declares that the code shall not affect proceedings provided for in cer

tain chapters and titles of the Revised Statutes; and the provisions relating to the partition of lands, are among those embraced in the exception. If, therefore, the jurisdiction to entertain an action for partition, is elsewhere clearly conferred upon the court, there is nothing in the 390th section of the code which takes it away.

The Supreme Court possesses the same jurisdiction and the same powers as were formerly vested in the Court of Chancery. (See Laws of 1847, p. 323, sec. 16.) That court, both in England and in this state, has long possessed a jurisdiction over the subject of the partition and sale of lands; and its power to decree partition has long been fully recognized by our statutes. (2 Hoffman's Pr. 160; 2 R. S. 253, §§ 81 to 90.) The suit in equity for the partition of lands, was formerly prosecuted by the filing of a bill, and the service of a subpoena, and continued to be so prosecuted after the Revised Statutes were passed, and up to the time when the "act relating to the judiciary" went into operation, when the entire powers and jurisdiction of the Court of Chancery were transferred to the Supreme Court. (See 3d Paige, 345; 2d id. 387; 1st id. 415.)

When the Code of Procedure became a law, the Supreme Court lost none of its chancery jurisdiction. It is true that the distinction between actions at law and suits in equity was abolished, but the suit in equity survived in the form of a "civil action" prosecuted by summons and complaint. And I do not see why the old suit in equity for the partition of lands may not now be prosecuted in the form of a civil action under the code, in the same manner with every other suit of equity cognizance.

In my judgment, it is embraced within the definition of a "civil action," contained in the 2d, 4th and 6th sections of that act. By the terms of the 2d section, an action is defined to be "a regular judicial proceeding, in which a party prosecutes another for the enforcement or prosecution of a right, or the redress or prevention of a wrong."

In the opinion of Justice Barculo, to which I have already referred, a doubt is expressed whether a suit for the partition of lands is a "regular judicial proceeding," and also whether it is a proceeding in which one party can properly be said to prosecute another party for the "protection or enforcement of a right," or the "prevention or redress of a wrong." It may be remarked, that the reasoning of the learned justice upon this particular question was not necessary to the decision of the motion before him; but the question itself is one of very great importance, for, if this reasoning be correct, then all the proceedings in partition, instituted under the code, are 66 coram non judice," and the titles derived under them are

void. I have, therefore given to the subject all the consideration which the time at my command would allow; and I have come to the conclusion,

1st. That a proceeding in partition under the code is a "REGULAR judicial proceeding." I think an interpretation much too narrow and restricted has been given to the word "regular." The word is derived from regula," a rule; and its first and legitimate signification, according to Webster, is, "conformable to a rule; agreeable to an established rule, law, or principle; to a prescribed mode; or according to established customary forms." I cannot think it material that the writ of partition, at common law, only lay between parceners, and that it was extended by statute to joint tenants and tenants in common. An action given by statute may be just as "regular" as an action of common law origin. The action of ejectment has been extended by statute to a great number of cases, to which it once had no application; and it cannot admit of a doubt that since the change effected by the statute, an action of ejectment, in the cases to which it has been extended, has been just as "regular" a proceeding as a writ of right or a writ of dower was before. So, too, it seems to me that a suit in equity may be just as "regular" a judicial proceeding, as an action at common law. The word "regular" seems to have been used by the Legislature as opposed to special, and to have been designed to distinguish "actions" from "special proceedings." The action for partition, therefore, prosecuted under the code in lieu of the old suit in equity, is a "regular" proceeding, inasmuch as it is prosecuted by and against regular parties, and according to the same forms of proceeding and rules of practice with other actions under the code.

2d. That the action for partition is in the strictest sense a proceeding in which the plaintiff "prosecutes" the defendant for the "enforcement of a right." The law has given to any man who holds lands in common with others, the "right to have them partitioned between him and his co-tenants, and thus to enjoy his own share in severalty. This "right" can be "enforced" only by the judgment of a competent tribunal, rendered in a judicial proceeding instituted for that purpose. It certainly cannot affect this question that the suit is sometimes amicable in its character. The right may be disputed and resisted; and then the proceeding is hostile. It is enough that the action is given, for the purpose of enabling a party to "enforce his right" against a hostile party, which cannot be done, except through the instrumentality of a judicial proceeding.

My conclusion, therefore, is, that the old suit in equity for the partition of lands, is now merged in the civil actions under the code, and, as such, may be prosecuted by summons and complaint. The demurrers must be overruled, with a right to withdraw them and to plead over, &c.

SUPREME COURT.

CYRUS B. LYNCH and his wife agt. JAMES M. MOSHER.

Under the present practice a motion to change the place of trial for the convenience of witnesses need not be made till after issue joined.

The motion should be made the first opportunity after joining issue. If the cause would be thrown over a circuit in consequence of such laches, it is a sufficient reason to deny the motion.

The form of an affidavit of merits upon such a motion should correspond with the practice and decisions heretofore made therein. Three things must distinctly appear-1st. That the defendant has fully and fairly stated the case to his counsel, stating his name and residence. 2d. That he is advised by his counsel that he has a good and substantial defence on the merits. And 3d. That he believes that he has such defence. (The question of change of venue and place of trial under the former and present statutes, reviewed.—SILL, Justice.)

Erie Special Term, July, 1849.-Motion to change the place of trial from Erie to Rensselaer county. The summons and complaint in this cause were served on the 8th day of May, 1849. The defendant's answer was served on the 23d of May. On the 9th day of June, the plaintiff served a demurrer to a part of the answer, and on the 12th day of June a reply to the residue was served. Notice of this motion with an order staying proceedings were served on the 3d day of July, for the special term to be held on the third Monday of July, instant, in Erie county. A general term of this court was held in Erie county on the 18th day of June, and in Chautauque county on the first Monday of July; and special terms of this court were held in Erie county on the third Monday of May, in Niagara county on the first Monday of June, and in Orleans county on the fourth Monday of June. And the Erie circuit was appointed for the third Monday of July, but no business was done at this circuit, on account of the prevalence of the cholera at Buffalo. That part of the affidavit on which the motion is made, intended to show a defence on the merits, is as follows: "And this deponent further says, that he has a good and substantial defence upon the merits to this action, as he is advised by his counsel, A. B. Olin, Esq., of the city of Troy, in the county of Rensselaer, and as he believes truly, after having fully and fairly stated the case to said counsel." That part of the affidavit designed to show the materiality of the testimony of the witnesses, and the necessity of having them present at the trial, is in the following form. That said witnesses "are, and each of them are material and necessary witnesses for this deponent on the trial