Crane agt, Sawyer. The proceedings are to be prosecuted by "ACTION," pursuant to the Code. In other words they must be commenced by summons. Accordingly, the summons in this case is made to require the defendant to serve a copy of his answer within forty days after service of the summons; "or to assert his claim to the premises described in the complaint in the time and manner required by law, or in default thereof that the plaintiff would apply to the court for relief." Now, by turning to the provisions in question in the Revised Statutes (2 R. S. 313), we find that the party must serve on the claimant a notice "subscribed with his name and place of residence," containing several facts set forth in the statute. Then follow the proceedings, as prescribed by the act, viz., the rule for the appearance of the claimant, judgment for not appearing, plea of disclaimer. And in the event that the person on whom the notice is served claims title in fee, or for life, in possession, remainder or reversion, he then becomes plaintiff in an action of ejectment, and the proceedings are thence forward conducted according to ordinary practice in actions of ejectment. Now there seems to be insuperable objections to taking these proceedings by action under the Code. 1. Section 127 requires all actions to be commenced by the service of a summons. 2. Section 128 declares that the summons shall require the defendant to appear and serve a copy of his answer, &c., within twenty days after service of the summons. The summons in this case gives forty days instead of twenty; and is moreover in the alternative, requiring the defendant to answer, &c., OR, “to assert his claim to the premises in the time and manner required by law." This is a matter which the statute does not contemplate to be embraced in the summons. 3. This summons is here made to notify the defendant to declare in the ejectment, in the event that he claims title to the premises in question. In other words the complaint which is annexed to the summons and served with it, is to be answered by a complaint of the defendant, who by that means is to become Crane agt. Sawyer. plaintiff, and the present plaintiff, defendant. The proceeding then, by action, will involve two actions in which the parties will change places, and the complainant in this suit will ultimately become defendant in the suit to be commenced. This result shows the absurdity of the proceedings being taken by action, instead of proceeding by notice in the special manner authorized by the Revised Statutes. The summons is prescribed by statute and can not be changed in any important particular without being irregular. Again, in this particular case there is another objection to the proceeding, independent of the views before given. The first requisite in seetion 2 of the provisions of the Revised Statutes, is no where found either in the summons or complaintthe name and place of residence of the party giving the notice, are not given. The 449th section provides a proceeding by action as a cumulative remedy; so the proceeding under the Revised Statutes is preserved by the 471st section of the Code. This section declares that the Code "shall not affect any existing statutory provisions relating to actions not inconsistent with this act." The provisions of the Revised Statutes relate to the action of ejectment and provides how the claimant shall become a plaintiff in such action. The 469th section of the Code is inoperative, for the reason that it provides no mode by which its object can be accomplished consistently with the statutory provisions of the Code as to the commencement of suits. The mode prescribed by statute, to compel a determination of claims to real estate, was a proceeding sui generis, and it answered the purpose of compelling the adverse party to commence a suit in ejectment. But when the framers of the Code undertook to substitute an action in the lieu of a notice, they prescribed an action to be brought against a party to compel him to commence an action against the plaintiff in the first action. We have then a complaint instead of a notice. Now if the defendant desires to contest the title with the claimant, he must serve on the plaintiff, not an answer, but a complaint, in an ejectment cause. Here the plead Thomas agt. Clark and Rogers. ings in the first suit cease, so far as depends on the Code, and this first action, instead of resulting in an answer and reply, which is tried and followed by a verdict and judgment, is merged in an action brought by the defendant, in which the plaintiff in the first action is miraculously changed into a defendant, and the defendant undergoes a like change of character and appears as plaintiff in a new action. It is seen that the first action has, by this process, entirely disappeared. The object of this proceeding can be obtained by a notice under the Revised Statutes; but I trust I need say no more to satisfy any lawyer that it can not be done by action under the Code, unless an action is a very different thing from what it has been understood to be by the profession. Motion granted. SUPREME COURT. THOMAS agt. CLARK AND ROGERS. Costs given under section 315 of the Code upon motions, the amount of which it is necessary to insert in the order, applies only to collateral motions, such as a motion to vacate or set aside some proceeding, or for relief of some kind, and which are not in the direct and regular progress of the suit, and which are always in the discretion of the court. It is never necessary to specify the amount of such costs in the orders upon motions which are made in the regular progress of the suit, such as motions in the nature of judgment as in case of non suit, non pros, for a commission, or to change the venue, &c. In these the statute gives the costs, not the court. Except that in cases where these motions may be denied for some defect of papers or irregularity, then the costs of denial are to be inserted in the order. Ontario Circuit and Special Term, Nov. 1850. Judgment as in case of non suit, for not proceeding to trial at the last Wayne circuit, being ordered, the defendants' counsel asks to have the costs of the motion liquidated and inserted in the order; in other words that the motion be granted with costs. The suit was pending before the first day of July 1848. M. H. SIBLEY, for the Defendants. Thomas agt. Clark and Rogers. WELLES, Justice. It is contended on the part of the defendants that the costs of this motion should be given now and the amount inserted in the order; and it is argued that unless it be done there is no way by which the defendants can obtain them, and that they can not be hereafter taxed with the general costs of the defence unless they are first ordered by the court to be paid and the amount liquidated under section 315 of the Code, which is made applicable to existing suits. It is supposed that the case of Doty vs. Brown (4 How. Pr. R.), decides the question. The question in that case was what costs the respondent was entitled to; that is, under what law he should recover them; whether under title 10 of the Code, or under the law in force before the first code took effect as a law; and Justice MASON held that it was under the latter. The learned justice in the case referred to, remarks that section 315 is the only one in title 10 which is made applicable to existing suits, and concludes very properly that the only law by which the respondent could recover his general costs, was that in force when the first code took effect, inasmuch as the suit was pending at that time. The particular question now raised does not appear to have been before the court in the case cited. My opinion is that section 315 was not intended and does not apply to motions of this description. That it was designed to provide for cases of collateral motions, such as a motion to vacate or set aside some proceeding, or for relief of some kind, and which were not in the direct and regular progress of the suit; and moreover the costs of which if granted, were collectable, formerly by attachment and now by process in the nature of a fieri facias, and without regard to the ultimate determination of the suit (Buzard vs. Gross, 4 How. Pr. R., 23). The practice of settling the amount of costs which a party should recover on motion by the court and inserting such amount in the order commenced with the statute of 1840 (Sess. Laws of 1840, ch. 386, § 15), which required the justices of the Supreme Court by general rule or order to regulate the amount to be allowed upon granting or denying special motions. The late Supreme Court in pursuance of that statute adopted a general Thomas agt. Clark and Rogers. rule by which on special motions upon notice, when costs were allowed to the moving party, the whole amount of such costs should be ten dollars, and to the opposing party, where costs were allowed seven dollars; and in peculiar and important cases the costs allowed to either party might be increased to a sum not exceeding twenty dollars (see Rule 100 of the general rules of the Supreme Court of May 1845). The rule of allowance under the statute was changed by rule 93 of the rules adopted by this court in July 1847. By the Code of 1848, § 270, no costs were allowed on a motion except for resisting in the discretion of the court not exceeding ten dollars. Lastly came the Code of 1849, §315, which provided that costs might be allowed on motions in the discretion of the court, not exceeding ten dollars. In all these cases where costs were to be allowed in a gross sum to be inserted in the rule, they were always in the discretion of the court, and might be allowed or refused; and if allowed, might be collected forthwith without waiting the determination of the suit; and never were considered any portion of the general costs to be taxed in favor of the prevailing party at the close of the suit. I have never understood any of the regulations by statute or general rule as having any relation to those motions which are in the regular prosecution or defence of the suit, such as motions for commissions, to change the venue, for judgment as in case of non suit and the like, unless where they were denied with costs, as was sometimes the case where the moving party was irregular or moved on defective papers. My opinion is that it is not necessary or proper to have the costs of this motion liquidated now, or that the rule should say any thing about costs. The defendants have judgment as in case of non suit; and the law, not the court, gives them the costs. The statute of 1840, above cited, shows what items are recoverable as costs of the motion, which go into the general bill and are there to be taxed. |