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PART II.

OF CIVIL ACTIONS.

TITLE I. OF THEIR FORM.

II. OF THE TIME OF COMMENCING THEM.
III. OF THE PARTIES.
IV. OF THE PLACE OF TRIAL.

V. OF THE MANNER OF COMMENCING THEM.
VI. OF THE PLEADINGS.'
VII. OF THE PROVISIONAL REMEDIES.
VIII. OF THE TRIAL AND JUDGMENT.
IX. OF THE EXECUTION OF THE JUDGMENT.

X. OF THE Costs.
XI. OF APPEALS.
XII, OF THE MISCELLANEOUS PROCEEDINGS.
XIII. ACTIONS IN PARTICULAR CASES.
XIV. PROVISIONS RELATING TO Existing Suits.
XV. GENERAL PROVISIONS.

Distinction between

forms of

ac

tions and

ished.

TITLE I.

Of the Form of Civil Actions.
SECTION 69. Distinction between actions at law and suits in equity, and

forms of such actions and suits, abolished.
70. Parties to an action, how designated.
71. Actions on judgments, when and how to be brought.

72. Feigned issues abolished, and order for trial substituted.

$ 69. [Sec. 62.) The distinction between actions at law actions at and suits in equity, and the forms of all such actions and equity, and suits, heretofore existing, are abolished; and there shall be such as in this state, hereafter, but one form of action for the ensuits abol- forcement or protection of private rights and the redress Agnended of private wrongs, which shall be denominated'a civil

action.

Although the code has abolished the distinction between legal and equi. table remedies, it has not changed the inherent difference between legal and equitable relief. Fritz agt. Hepburn and others, 5 How. 188; McMaster et

al. agt. Booth, 4 How. 427; Hill vs. McCarthy, 3 Code Rep. 49. Parties to

$ 70. [Sec. 63.] In such action, the party complaining how desigan action shall be known as the plaintiff, and the adverse party as

the defendant.

$71. [Sec. 64.] No action shall be brought upon a judgwhen and ment rendered in any court of this state, except a court of brought. a justice of the peace, between the same parties, without

leave of the court for good cause shown, on notice to the ad

1849

nated.

Actions in

how to be

Amended 1849.

verse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.

A justice's judgment recovered before the code took effect, is not within the prohibition referred to in this section. McGuire vs. Gallagher, 2 Sand. 402.

§ 72. [Sec. 65.] Feigned issues are abolished; and instead Feigned is thereof, in the cases where the power now exists to order a ishaled and feigned issue, or when a question of fact, not put in issue by tuted. the pleadings, is to be tried by a jury, an order for the trial may be made, stating, distinctly and plainly, the question of fact to be tried, and such order shall be the only authority necessary for a trial.

Feigned issues may still be ordered by the court certain cases. Anony. mous, 5 How. 306. See Supreme Court Rules, 71, 73, 74.

sues abol

order
trial substi

a

5

TITLE II.
Of the time of commencing civil actions.
CHAPTER 1. Actions in general.

II. Actions for the recovery of real property.
III, Actions, other than for the recovery of real property.
IV. General provisions.

CHAPTER I.
The time of commencing actions in general.
SECTION 73. Repeal of existing limitations.

74. Time of commencing civil actions. 873. [Sec. 66.] The provisions contained in the chapter Repeal of

existing of the Revised Statutes, entitled “Of actions and the times limitations. of commencing them," are repealed, and the provisions of Amended this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where [NOTES.]

3

1849.

the right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.

The provisions of this section have no application to the 110th (90th) section infra. But if applicable, they do not change its construction, or prevent it from applying to a case where the right of action accrued, and the action was commenced after the code went into operation. Wadsworth vs.

Thomas, 7 Barb. 445. Time for § 74. [Sec. 67.] Civil actions can only be commenced within existing limitation. the periods prescribed in this title, after the cause of action shall

have accrued, except where, in special cases, a different limitation is prescribed by statute, and in the cases mentioned in section seventy-three. But the objection that the action was not commenced within the time limited, can only be taken by an

Amended 1949.

swer.

CHAPTER II.
The time of commencing actions for the recovery of real

property.
SECTION 75. When the people will not sue.

76. When action cannot be brought by grantee from the state.
77. When actions by the people or their grantees to be brought

within twenty years.
78. Seisin within twenty years, when necessary in action for real

property. 79. Seisin within twenty years, when necessary in action or de.

fence founded on title to or rents of real property. 80. Action must be commenced within one year after entry, or

within twenty years after right of entry. 81. Possession when resumed. Occupation deemed under legal

title, unless adverse. 82. Occupation under written instrument or judgment, when

deemed adverse. 83. What constitutes adverse possession, under written instrument

or judgment. 84. Premises actually occupied, under claim of title, deemed to

be held adversely. 85. What constitutes adverse possession under claim of title

not written. 86. Relation of landlord and tenant, as affecting adverse possession. 87. Right of possession not affected by descent cast.

88. Certain disabilities excluded from time to commence actions.

$75. The people of this state will not sue any person When the people will not sue.

for, or in respect to any real property, or the issues or Passed

profits thereof, by reason of the right or title of the people 1849.

to the same unless,

tion cannot

State.

1849.

1. Such right or title shall have accrued within forty years before any action or other proceeding, for the same shall be commenced; or unless,

2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.

In action brought by the people of the state to recover real property, the defendant pleaded the fact that the people, or those from whom they claimed had not received the rents and profits of such real property, or of some part thereof, within the space of forty years, and such pleading held good. The People vs. William Arnold, manuscript opinion of Chief Justice Bronson.

876. No action shall be brought for, or in respect to, When acreal property, by any person claiming by virtue of letters be brought

by grantee patent, or grants from the people of this state, unless the from the same might have been commenced by the people as herein Passed specified, in case such patent or grant had not been issued or made. $77. When letters patent or grants of real property When ac

tion by the shall have been issued or made by the people of this state, people or and the same shall be declared void by the determination test to be

brought of a competent court, rendered upon an allegation of a wenty fraudulent suggestion, or concealment, or forfeiture or mistake, or ignorance of a material fact, or wrongful detaining, 1949. or defective title, in such case, an action for the recovery of the premises so conveyed, may be brought either by the people of this state, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made; but not after that period.

$78. No action for the recovery of real property, or for Seisin the recovery of the possession thereof, shall be maintained twenty unless it appear that the plaintiff, his ancestor, predecessor when nen or grantor, was seised or possessed of the premises in ques- real protion, within twenty years before the commencement of perty. such action.

their gran

years. Passed

.

within

years,

cessary in action

Passed 1949.

Beisin within twenty years, when ne

aetion or defence founded on Litle to or rents of real

property.

Passed 1849.

Action must be

or within twenty years after right of entry. Passed 1849.

sumed.

$ 79. No cause of action or defence to an action found

ed upon the title to real property, or to rents or services cessary in out of the same, shall be effectual, unless it appear that

the person prosecuting the action, or making the defence, or under whose title the action is prosecuted or the defence is made, or the ancestor, predecessor or grantor of such person, was seised or possessed of the premises in question, within twenty years before the committing of the act in respect to which such action is prosecuted or defence made.

§ 80. No entry upon real estate shall be deemed sufced with ficient, or valid as a claim, unless an action be commenced after entry thereupon within one year after the making of such entry,

and within twenty years from the time when the right to make such entry, descended or accrued.

$ 81: In every action for the recovery of real property, When pre. or the possession thereof, the person establishing a legal Occupation title to the premises, shall be presumed to have been posder legal sessed thereof within the time required by law; and the adverse. occupation of such premises by any other person, shall be

deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for twenty years before the commencement of such action.

$ 82. Whenever it shall appear that the occupant, or wontender those under whom he claims, entered into the possession or judg- of premises under claim of title, exclusive of any other demned ad-right, founding such claim upon a written instrument, as

being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim, for twenty years, the premises so included shall be deemed to have been held adversely, except that where the

deemed un

title, unless

.

Passed 1849.

Occupa

instrument

ment, when

verse.

Passed 1849.

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