The proceeding, though commencing as a special remedy, assumes, in its progress, many of the forms of an action, and the practice in it has been made the subject of recent decision. It is originally commenced by the filing of a claim in the county clerk's office, with notice of such claim to the party liable. So far, the matter is strictly a special remedy, and has no effect, beyond creating a charge on the property affected. If, however, the account be disputed, or payment be delayed, either party may serve on the other a notice, in order to enforce or bring such lien to a close.

From this point, the proceeding assumes the nature of an ordinary action, and must be so conducted. Thus, in Smith v. Maince, 1 C. R. (N. S.) 230, a notice to enforce having been served, it was held that the mere service of such a notice, and appearance of the parties, was not sufficient; and the following order was made: "The mechanic must file his complaint, as in an ordinary action, within ten days herefrom; and the owner will have the usual twenty days to answer. The cause then proceeds like any other action."

In Reynolds v. Hamil, 1 C. R. (N. S.) 230, where the owner, on receiving the original notice of filing the lien, paid the amount, it was held no costs were payable. The mere docketing the lien was not a commencement of a suit. "The commencement of a suit under this act, is the service of the notice provided for in sec. 4, requiring the owner to appear and submit to a settlement. No such notice was served in this case, and no suit was therefore commenced."

In Smith v. Maince, 1 C. R. (N. S.) 283, an answer by the owner, that the work claimed on was performed before the passage of the act of 11th July, 1851, above referred to, was refused to be stricken out as frivolous.

The existence of prior liens, sufficient to absorb the whole of the fund in question, is a sufficient defence under the present, as well as under the former law, if proved; subject, however, to be impeached by the claimant, if he be able to do so.-Lehretter v. Koffman, 1 C. R. (N. S.) 284. In this case, the court of common pleas refused to grant an injunction to stay proceedings in the marine court on this ground, holding that the defence, if established, would be a valid one, and might be substantiated accordingly in the latter tribunal. It was also held that, in certain cases of this description it might be necessary to institute a suit in the tribunal of higher jurisdiction, in the nature

of a bill of interpleader, to adjust the rights of the respective claimants.*

In McSorley v. Hogan, 1 C. R. (N. S.) 285, it was held, that the notice of adjustment, by which the proceedings in the nature of an action are commenced, must distinctly apprise the owner of the fact of the lien, and of the amount for which it was docketed, or the proceedings under it will be irregular.

The above decisions, although not strictly applicable to proceedings under the Code, have been cited as bearing upon a closely analogous question. It is evident, in fact, that, from the moment of the service of the second notice, the remedy in question, when taken under the recent measure, throws off the character of a special proceeding, and becomes, to all practical intents and purposes, an ordinary action under the Code, conducted according to the same forms, and in the same manner.

Returning to the subject of the statutory provisions, saved as above by sec. 471, it may be stated, that the first title of chap. IX. of part III. of the Revised Statutes, also there saved, contains the statute law on the subject of the writs of Habeas Corpus and Certiorari; proceedings governed in all respects by the old practice, and to which the Code has no application. Three recent decisions on the latter subject will be found in 6 How., viz.: The People v. The Overseers of Barton, p. 25; Harris v. Whitney, p. 175 (overruling Peck v. Foot, 4 How. 425); and The People v. Townsend, p. 178. In the latter, it is clearly laid down, that, the proceeding there in question, not being an action in a court of record, no attorney or counsel fees could be allowed.

Independent of the above special proceedings, as saved by the foregoing section, others also still exist, being consistent

It has been recently decided by the Court of Common Pleas, in an unreported case of Cronk v. Whitaker, (decision filed 29th May, 1852,) that payments made by the owner in good faith, according to the terms of his contract, before the notice of claim is filed, are to be allowed to him as a defence in proceedings of this nature; and, by necessary consequence, that if nothing was due from him when such notice was filed, and nothing becomes due thereafter, he can be compelled to pay nothing; and, likewise, that the owner cannot be required to pay money to the claimant before it becomes due to the contractor, which views also involve the necessity of taking into account previous liens, in proceedings under this law. The decision, in a case of Daughty v. Develin, given by the same court in the same term, is referred to in the opinion, as having previously established these proposi tions.

with the Code, and therefore untouched by the general repealing clause in sec. 468, which runs as follows:

§ 468. All statutory provisions inconsistent with this act, are repealed; but this repeal shall not revive a statute law, which may have been repealed or abolished by the provisions hereby repealed. And all rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act. If a case shall arise, in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this act, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.

Of this nature, are the provisions as to the writ of ad quod damnum, contained in art. IV. title II. chap. IX. part III. of the Revised Statutes, 2 R. S. 588 to 590 inclusive. Proceedings in the nature of scire facias and quo warranto, provided for by articles I. and II. of the same title, are, on the contrary, repealed by sec. 428; an action in the ordinary form, being substituted for those provisions, as before noticed.

The actions to be so brought are, however, of a strictly special nature, and it may, therefore, be expedient to insert a notice of their peculiarities, in connection with this portion of the work.

The first proceeding of this nature, is in relation to delinquent corporations, as to which provisions are made by sections 429 to 431 of the Code inclusive.

The next is with respect to the usurpation of office, or the unauthorized exercise of corporate privileges, or the vacating of letters patent unduly obtained.

The provisions on these subjects, and in relation to the judg ment to be given, and the remedies consequent thereon, are contained in the remainder of the chapter of the Code in question, from 432 to 447 inclusive. As proceedings of this nature are of comparatively infrequent occurrence, it has been thought unnecessary to cite these sections in extenso, the more so, as no reported decisions appear upon the subject.

In addition to the regular special proceedings above referred to, various others are adoptable, in relation to public companies, under various incorporation acts, either general or special, passed by the Legislature at different periods. To enter into a detailed consideration of this subject, would be beyond the province of the work. The following recent cases may, however, be alluded to: The New York and Erie Railroad

Company v. Corry, 5 How. 177, in relation to the general railroad act of 2d April, 1850, Laws of 1850, p. 211; The Buffalo and State Line Railroad Company v. Reynolds, 6 How. 96; The New York and Erie Railroad Company v. Coburn, 6 How. 223; and The Troy and Rutland Railroad Company v. Cleveland, 6 How. 238, in relation to the same measure; and Moule v. The Macedon and Bristol Plank Road Company, 6 How. 37, in relation to the act of 9th April, 1851, Laws of 1851, ch. 107.

Various special proceedings in relation to real estate, and which are expressly saved by provisions in the Code for that purpose, will be noticed in the succeeding chapter.

CHAPTER II.

OF SPECIAL PROCEEDINGS IN RELATION TO REAL PROPERTY.

PROCEEDINGS of this nature stand, as regards the Code, in the peculiar position of being, to a certain degree, optional in their form; the party seeking the application of these remedies being, in most cases, at liberty to take the necessary measures for that purpose, either in the form of an ordinary action under the Code, or in that of a special proceeding under the Revised Statutes, and this, at his own election.

This same choice of remedies, however, substantially existed under the former practice, in relation to partition especially, to obtain which, the party possessed the full liberty, at his discretion, either to proceed by way of bill in equity, or to petition the court under the provisions of the Revised Statutes: the former course, when adopted, assuming the shape of an ordinary chancery suit, the latter that of a special statutory proceeding.

The former of these modes of proceeding is now merged in the ordinary action under the Code; the latter, when adopted, still retains its distinguishing characteristics. The law, to be administered under either form, is completely and identically the same, being expressly saved as follows:

§ 455. The general provisions of the Revised Statutes relating

to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.

The statutory provisions last alluded to, are contained in chapter V. part III. of the Revised Statutes, 2 R. S. 303 to 347. That chapter is, as will be seen, divided into eight titles: the first treats of the action of ejectment; the second, of proceedings to compel the determination of claims to real property in certain cases; the third, of partition; the fourth, of the writ of nuisance; the fifth, of waste; the sixth of trespass; the seventh consists of general provisions in relation to the foregoing; and the eighth provides a remedy, for the purpose of discovering the death of persons, on whose lives any particular estate may depend.

The action of waste, and the writ of nuisance, treated of in the fourth and fifth of the above divisions, have both been abolished the former by sec. 450, the latter by sec. 453 of the Code. The substantial remedies of parties in these respects, are, however, preserved, and may be obtained by means of a proceeding for damages; in addition to which, judgment of forfeiture and eviction is obtainable in the case of waste, under sec. 450; and one for the removal of a nuisance, as well as for damages, under sec. 454.

Where judgment of forfeiture and eviction is sought, that judgment cannot be accompanied by equitable relief, under the same proceeding, and in respect of the same transaction. See Linden v. Hepburn, 3 Sandf. S. C. R. 668; 5 How. 188; 3 C. R. 165; in which case, the party was put to his election between the two forms of relief.

The above statutory provisions in relation to ejectment, being chiefly formal, are, with scarce any exception, merged in those of the Code; and relief is only now obtainable in this respect, by means of an ordinary action, carried on in the ordinary forms. Any provisions, however, which extend to the law of cases of this description, without respect to the peculiar form of the proceeding, are still subsisting. Thus, the granting of a new trial in cases of ejectment, which, under sec. 38 of the chapter above referred to, may be demanded as a matter of right by the losing party, at any time within three years after the judgment against him; remains still, as heretofore, a matter of right, and may be still claimed as such.-Cook v. Passage, 4 How. 360; Rogers v. Wing, 5 How. 50.