Baron v. Abeel
New York Supreme Court
THIS was an action of trespass for the mesne profits. The cause was tried at the Washington circuit, before Mr. Justice Thompson, in June, 1808. On the trial, the plaintiff produced the record of a judgment obtained against the casual ejector, in an action of ejectment, by default. The service of the declaration on the defendant, and the value of the land during the time he had been in possession, and the costs in the action of ejectment, were proved.
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THIS was an action of trespass for the mesne profits. The cause was tried at the Washington circuit, before Mr. Justice Thompson, in June, 1808. On the trial, the plaintiff produced the record of a judgment obtained against the casual ejector, in an action of ejectment, by default. The service of the declaration on the defendant, and the value of the land during the time he had been in possession, and the costs in the action of ejectment, were proved. The defendant then offered to prove, that before the commencement of the suit in ejectment, he had surrendered the premises to the plaintiff^…
1Opinion of the CourtVan Ness, J.
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© *483Snake a defence, is bound to appear, and if he…
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