If error brought, &c., mesne profits to be granting letters testamentary, or of administration to them, and may suggest their claim to the mesne profits of the premises recovered, in the same manner and with the like effect, as the deceased; and the same proceedings, in all respects, are to be had thereon.93 Provisions where error is brought on the ejectment.] The statutes contain the following provisions respecting the action for mesne profits, where a writ of error has been brought, and a bond in error been given, in the action of ejectment:“After stayed until the bringing of a writ of error, and the giving of the bond required by law, upon any judgment for the recovery of land, or the possession of land, the party in whose favour such judgment shall have been given, shall not proceed for the recovery of any mesne profits, for the lands recovered, until the determination of such writ of error."101 it is determined. Suggestion to recover mesne pro fits, if writ of error dis continued, &c.; and proceedings thereupon. "If the plaintiff in such writ of error shall suffer a discontinuance, or become nonsuited, or the judgment be affirmed, the defendant in error may proceed to file a suggestion of his claim to mesne profits, in the same manner as he might have done if no writ of error had been brought: and in such suggestion, he may also include his claim for mesne profits during the pendency of the writ of error; and for any damages arising from any waste committed after the giving of such first judg ment. 102 "Such suggestion shall, in all cases, be filed in the supreme court, and the like proceedings, in all respects shall be had upon the judgment of affirmance, and with the like effect, upon such suggestion as are prescribed in the fifth chapter of this act and the amount of the damages for the mesne profits, during the pendency of the writ of error, and none other may be recovered upon the bond given, on the suing out of the writ of error.' 103 CHAPTER III. OF THE PRACTICE IN THE ACTION OF WASTE. lies. THE cases in which this action may be brought, and its na- When it ture as a remedy, have already been considered. 101 It remains now to treat of the proceedings. Summons, service, and return.] The first process in the Summons; action is a summons, which must be subscribed or endorsed with the name of the attorney or person by whom it is issued,10 and is substantially in the following form:94 "The people, &c., to the sheriff, &c. We command you its form; that you summon A B, that he be before, &c., at, &c., on, &c., to show wherefore he has committed waste, to the injury of CD, of a certain dwelling-house and garden, situated in the town of in the said county of (describing the premises according to their actual situation, and with the same certainty as in this chapter before required in declarations in ejectment,) and which said premises the said A B holds in dower, of the inheritance of the said C D, (or which the said A B holds as tenant for years or otherwise, as the case may be.) And have you then there this precept. Witness, &c." The summons may be tested and made returnable like cess in personal actions,95 and must be served on or before the return day, on the defendant personally, if he can be found, 101 Ante, Vol. 1, p. 42. 102 2 R. St. 278. s. 9. 94 2 R. St. 334. s. 5. pro 95 2 R. St. 197. s. 5. 2. R. St. 210. s. 11. 2 R. St. 198. s. 9,10. and how served, and return ed. Declaration. by delivering to him a copy. If he cannot be found within the county, it may be served by leaving a copy at his dwellinghouse, on the premises wasted, if there be one, with any person of proper age found therein. The copy delivered, must be certified by the officer serving it.96 The return of the summons is not required to be in any particular form; but the sheriff must specify in his return the mode in which the service was made; and if the summons is returned not served, he is required to specify the cause of such return; and an alias or pluries summons may be issued thereupon.97 Declaration.] The declaration should be conformable to the summons, ,98 and should state distinctly the nature of the defendant's tenure, or estate, and the character in which he holds, and charge him accordingly.101 It must also show that the plaintiff is entitled to the inheritance, and how he is so entitled; and must set forth his title specially.99 If he counts upon a lease by himself, he must show his seisin in fee, and demise to the defendant.100 If, upon a lease from his ancestor, he must show seisin or demise to the defendant and descent to himself.1 If he claims by grant of the reversion, he must show it, and in what manner. If he and the defendant are joint tenants; or if he and the wife sue in right of the wife, it must be stated. If he has the reversion, he must say that the defendant holds of him; otherwise, if he in remainder brings waste. If the plaintiffs sue as joint tenants, the declaration must allege them to be such.101 The declaration must particularise the quality and quantity of the waste: as, 96 Ib. 334. s. 6. 97 Rule of Supreme Court, 66. 99 Hob. 84. 2 Saund. 235. n. 100 Ib. Yelv. 140. Ib. Co. Ent. 708. b. 2 Ib. 2 Saund. Rep. 234, 235. n. 3 Ib. Hob. 1. 2. 4 Ib. Hutt. 110. 101 2 Saund. Rep. 235. n. if it is in cutting trees, it must show the number of the trees; 8 But if pear and Rule to appear and plead, and default.] The writ of sum- Rule to ap mons, having been personally served on the defendant, the plead. plaintiff, on filing his declaration, is entitled to enter a rule of course, requiring the defendant to appear and plead thereto within twenty days after the entering of such rule. the service was in any other manner than personally on the defendant, the rule to appear and plead cannot be entered without the special order of the court;10 for which a motion should be made, grounded probably on an affidavit, stating the issuing of the summons, its service, and return. The defendant appears by causing his appearance to be Appearan entered in the book of common rules.11 In case the defendant neglects to appear and plead within Default. the time required by the rule, his default must be entered.12 5 2 Saund. Rep. 236. n. • Ib. 101 2 Saund. Rep. 236. n. 7 2 Saund. Rep. 236. n. For precedents of declarations see 2 Saund. Rep. 234. Brownl. Declar. and Pleadings, Co. Entr. Rast. Entr., Townsend's Tables, Cornwal's Continuation, Touch- 12 Ib. Writ of inquiry, or damages assessed at the circuit. General is sue. Evidence. Special pleas. Writ of inquiry.] If the defendant makes default, in not appearing or not pleading, a writ of inquiry'issues to the sheriff of the county, commanding him to go to the place wasted, and by the verdict of a jury, to inquire of the waste done, and of the damages occasioned thereby; and on the return of such inquest, the plaintiff has judgment." 13 But the statutes also provide, that whenever, by the provisions of law, a writ of inquiry may be issued to assess the damages in an action of waste, instead of issuing such writ, the plaintiff may have such damages assessed at a circuit court, held in the county; and that, for this purpose, the plaintiff may make up a circuit court roll of the pleadings and proceedings, with an entry of an order therein, that such damages be assessed at such circuit court; and that such court shall proceed thereon, pursuant to such order, in the same manner as in other causes sent to that court to be tried; and that the verdict of the jury thereupon, shall be certified and returned in like manner.15 Plea and issue.] The general issue in waste, is nullum fecit vastum, or that the defendant did not make any waste." This plea admits nothing, but puts the whole declaration in issue." Under this plea, the defendant may give in evidence any thing that proves it to be no waste, as that it happened by lightning, tempest, enemies, or the like;18 or that the lessor himself committed the waste. But it is no plea, where the defendant has matter of justification or excuse; therefore, where the defendant cut timber for repairs, and used it accordingly, or for necessary botes, he must plead these matters specially, and cannot give them in evidence under the general issue. 19 But it is not enough to say that the defendant 13 2 R. St. 334. s. 8. 14 2 R. St. 342. s. 20. 18 2 Saund. Rep. 238, where see 17 Ib. Lutw. 1547-5. Co. Entr. 700. a. 708. a. 18 Co. Lit. 283. a. 19 Co. Lit. 283. a. Co. Ent.703. a. Winch. Ent. 1142-1146. 1169. 1182. 2 Lutw. 1546. |