3 Johns. 481 | N.Y. Sup. Ct. | 1808
delivered- the opinion of the court. (Spencer, J. hesitante.) The service of a declaration in ejectment on the tenant in possession is considered as much the commencement of the suit, as the service of a capiasad respondendum in personal actions. The lessor of the plaintiff and the tenant are the real and substantial parties. (Aslin v. Parkin, 2 Burr. 665. Van Alen v. Rogers, 1 Johns. Cases, 288. Goodtitle v. Tombs, 3 Wils. 118.) Upon filing an affidavit of the service of the declaration^ and entering the common rule, the tenant, if he means t©
In the case of Aslin v. Parkin, Lord Mansfield, in delivering the opinion of the court, says, “ there is no distinction between a judgment in ejectment upon a verdict, and a judgment by default. In the first case, the right of the plaintiff is tried and determined; in the last case it is confessed.”
Again, in Goodtitle v. Tombs, where the question was, whether one tenant in common could maintain this action against the other, after a recovery in ejectment by default: Wilmot, Ch. J. said, “ I consider the recovery in ejectment by default, or after verdict, as the same thing,” and Gould, J. says, the action for the mesne profits follows the ejectment as a necessary consequence, and in this case the judgment by default is of the very same effect as if it had been after verdict. The court will intend every thing possible against the defendant.” These cases, especially the latter, are directly in point.
The defence relied upon in this suit would have been a good,bar to the recovery in the action of ejectment; and to permit the defendant to set it up here,,
-A question was made, on the argument, as to the plaintiff’s right to recover the costs under the declaration in this cause ; but as the pleadings are not set forth in the case we are unable to give any opinion respecting itz The defendant must take nothing by his motion.
Judgment for the plaintiff.