Williams agt. Bigelow.

upon his paying the stipulated purchase money according to the terms of the contract. The plaintiff in error to have possession of the premises, and the defendant in error to have the right to rescind the contract upon default of payment. The plaintiff in error made default in his payments, and the defendant in error gave him notice that he should consider the contract at an end.

The affidavit states that the plaintiff in error refuses to pay the purchase money, and remains in possession, or holds over, without the permission, and against the will, of the defendant in error.

On this state of facts there is not even a colorable pretence for treating Williams as the tenant of Bigelow, within the meaning of that term as used in the statute. These summary proceedings are given between those only who stand in the conventional relation of landlord and tenant, and not between those who become such by operation of law, except in the cases specially provided for, and specified in the statute.

That part of the statute under which these proceedings were commenced, "only extends to cases where the relation of landlord and tenant has been created by a lease or demise of the property." (Per BRONSON, J., in Sims agt. Humphrey, 4 Denio, 185; Roach agt. Cosine, 9 Wend. 227; Evertson agt. Sutton, 5 Wend. 281.) In this respect, the affidavit was wholly insufficient to give the justice jurisdiction.

The judgment of the justice should, therefore, be reversed, and restitution should be awarded to the plaintiff in error.

People ex rel. The Argyle, &c., Co. agt. Commissioners of Highways, &c.

SUPREME COURT.

THE PEOPLE ex rel. THE ARGYLE and FORT EDWARD PLANK ROAD COMPANY agt. THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF FORT EDWard.

A return to an alternative writ of mandamus may either deny the facts stated in the writ on which the claim of the relator is founded, or may state other facts in law sufficient to defeat the relator's claim.

An objection that a writ of mandamus is not made returnable at special term, will not be allowed after the return has been made.

A return alleging that the law, under which the relief is claimed in the writ, is unconstitutional and void, is not a fact, but an averment of a principle of law, arising upon the face of the return. It must be stricken out.

Where a portion of a return to an alternative mandamus is alleged to be immaterial or argumentative, the remedy is not by demurrer, but by motion to strike out.

Washington Special Term, Sept., 1854.

MOTION to strike out parts of the return to an alternative mandamus. So much of the return as it is necessary to state, will be found in the opinion of the court.

A. D. WAIT, for relators.

N. G. PARIS, for defendants.

C. L. ALLEN, Justice. I had been led to the conclusion that, under § 471 of the Code, all proceedings in relation to writs of mandamus, and the returns thereto, were excepted from the provisions of § 160 of the Code. But the case of The People agt. Ransom (2 Com. 496) decides, that if the return contains anything more than a full answer to the mandamus, it may be rejected as surplusage, or struck out on motion. The motion under that decision is, therefore, properly made.

If the defendants make a return to the alternative writ, they may either deny the facts stated in the writ on which the claim of the relator is founded, or they may state other facts in law sufficient to defeat the relator's claim. (People agt. Supervisors of Fulton, 16 Barb. 52; 8 How. 358.)

People ex rel. The Argyle, &c., Co. agt. Commissioners of Highways, &c.

Objection was taken, on the argument, to the form of the writ-that it should have been made returnable at a special term of the court. This was so decided in the case of The People agt. Supervisors of Greene, (12 Barbour. 217.) But the defendants have chosen to make a return, and place it on the files of the court, without interposing that objection, or moving to set aside or quash the writ. I think they are too late in making the objection after the return; and that, at all events, an amendment may be made, if desired, making the writ returnable at special term. (Code, § 173.)

1. The first part of the return, which the relators ask to have stricken out, is the allegation that the law under which the relief is claimed is unconstitutional and void. This is not a fact, but an argument, or an averment of a principle of law arising upon the face of the writ, or the return. It is improper, and must be stricken out.

2. I think the second portion of the return, proposed to be stricken out, is immaterial, and part of it is argumentative.

If the relators were entitled to the relief which they claim, at the time the application was made, the defendants could not deprive them of that right by any subsequent act; nor would such subsequent act excuse them from the performance of their duty. It is a question yet to be determined, whether the act of assessing all the property in the proper road districts, as set up in the return, and which the defendants had done in the performance of their duty, did not place it beyond their power to comply with the terms of the application, even if they were bound to accede to them. It must appear that defendants yet have it in their power to perform the duty required of them: for if they have not such power, the court will refuse the writ as vain and fruitless. (The People agt. Supervisors of Greene, 52 Barb. 217; and see 16 Barb. 52; 15 id. 607.)

On these important questions, I pass no opinion at this time. But the portion of the return which I am now examining, will afford the court no aid in arriving at a conclusion upon them. It must be stricken out.

3. For similar reasons the third portion of the return, ob

Patterson agt. Graves.

jected to, must also be stricken out. It is immaterial that the stock is mostly owned by persons residing in Argyle. The detail of a conversation with Pratt, the applicant, is a statement of the evidence which may be relied on in support of some fact, and is improperly put into the return. So the statement of the amount of tolls received, and of the cost of the road, is immaterial.

The latter part seems to be the brief and argument of the defendants, and which will be more properly set out in the points, to be handed to the court hereafter, than in the return.

The motion must be granted; but, as the practice has been somewhat unsettled,-I having decided myself in a recent case, and before I saw the decision in 2 Comstock, that the only remedy was by demurrer, or plea,—I shall let $10 costs of the motion abide the event.

Order accordingly.

SUPREME COURT.

JAMES PATTERSON, respondent, agt. MARTIN L. GRAVES, appellant.

The Code (§ 272) does not require a referee formally to report upon the issues formed by the pleadings. If there are issues upon which there is no evidence, he is not required to notice them. And where an issue is reported upon by necessary implication, from the rest of the report, it will be deemed sufficient He is not to report the evidence, but the facts found from the evidence. But where evidence is introduced upon a material issue, and the facts are not affirmatively found thereon, he is not required to report negatively upon it; it is sufficient that he find affirmatively what facts are proved.

A delay of about seven months, in making a motion to set aside a report of a referee for irregularity, although it was claimed that a substantial right was involved, held, fatal to the motion.

Genesee General Term, September, 1854.

Before MARVIN, P. J., MULLETT and BowEN, Justices. APPEAL by defendant from an order of the special term, denying a motion made by the defendant to set aside the referee's

Pattorson agt. Graves.

report for irregularity, or that the referee amend his report. The irregularity complained of is, that the report does not set forth the material facts found upon the issues passed upon by the referee, or what issues he did pass upon, or what facts he did find, on the evidence taken, on the issues he did pass upon." The facts are sufficiently stated in the opinion.

By the court-BOWEN, Justice. The pleadings in the cause were not furnished to the court on the argument of the motion, and the only information we have, of what the issues were on which the action was tried by the referee, is contained in the affidavit on which the motion was made. From this affidavit it appears that the plaintiff's demand was for the rent of certain lands described in the complaint, accruing from May 28, 1849, to July, 1850, at $40 per annum-the plaintiff suing as the assignee of S. G. Havens, the landlord. That the answer denied the allegations of the complaint, and set up that the defendant occupied the lands in question as the owner thereof until May 2d, 1848, when Mr. Havens purchased them on the foreclosure of a mortgage made by the defendant, and from that time he occupied them as a tenant at will of Mr. Havens, until April 13th, 1849, when he was served with a notice to quit by his landlord, and he then surrendered the possession, and had not occupied the premises after that time. That, February 12th, 1848, one Johnson became the owner of a piece of land adjoining the demised premises, on which there was a dwelling-house, which the defendant occupied; and that, May 1, 1850, the defendant became the owner thereof, by a conveyance from Johnson. "That the only question is, whether the dwelling-house, which said Graves did use and occupy, was on the latter or former premises; and if upon the former, how much of them it covered. That Graves had occupied and used the said dwelling-house as the owner in fee. That the answer further set up payment."