Carris vs. Ingalls, 12 Wend. 70

By the Court, Nelson, J. It is said the record is defective because neither the summons nor the declaration recites or refers to the statute, (2 R. S. 334, § 1,) upon which this action is founded. It is true, as contended by the counsel for the plaintiff in errorj the action of waste against a tenant for life or years was ®rst given to the owner of the inheritance by the statute of Marlbridge, of which our statute is a copy ; but I do not think it necessarily follows from this that the summons or declaration should refer to it.

Instances are numerous in the books, where actions well known at common law have been applied to new cases by statute, and where, from every day’s practice, we know it is not material to refer in the declaration to the statute.,, It is but the extension of an existing remedy from necessity — a convenience for the security of private rights, where the forms and modes of proceeding have been long settled, and are not required to be essentially varied.

It being a public statute, the courts are bound to take judicial notice of it, the same as they would of a principle of the common law in regard to any particular case. It is well settled, for the above reason, that a public statute need not be recited or referred to in pleading; and all that seems to be material is, that enough be stated to bring the case within it. 6 Bacon’s Abr. tit. Statute, 398.

It is laid down by the same author, and the distinction seems to be sound and well supported, that if a statute gives a new action, it must be recited in the writ or declaration; but it is not necessary to do so if an action at common law be given to a new case. An action of trespass by an executor de bonis asportatis in vita testatoris is given as an illustration of the above distinction, and many others will occur to the recollection of every professional man, without referring to them. Idem, 396. Willes, 310. Cro. Eliz. 236.

An action could not be sustained by an endorsee upon a promissory note, were it not for the statute of Ann; yet it is unnecessary to refer to it in counting upon the note. Chitty on Bills, 352. There may be ground for a distinction in actions wholly penal, though that is not a clear point. The action of waste at common law could only be brought “by him that hath the immediate estate of inheritance.” Co. Litt. 53, a. 3 Bl. Com. 227. See 13 Johns. R. 260, 11 id. 422, 1 Cruise, 70, § 40, 2 Saund. 252, a. n. 7. Our statute, 1 R. S. 750, § 8, 1 R.

L. 527, has altered the law so far as to permit “ a person seised of an estate in remainder dr reversion,” to maintain this action for an injury done to the inheritance, notwithstanding an intervening estate for life or years.

It is also perfectly settled that the plaintiff must set forth in the declaration how and in what manner he is entitled to the inheritance; thus, if he declares upon a lease made to the defendant by himself, he must allege a seisin in fee or in tail in himself; or if upon a lease made by the ancestor, he must state the seisin in fee of the ancestor, the demise to the defendant, and a descent to the plaintiff. Green v. Cole, 2 Saund. 235, 6, n. 2, and cases there cited. We have been referred to the case of Astor v. Whitehall, Cro.

Eliz. 57, to show that the omission to set out the estate of the plaintiff would be cured after verdict. The report of that case is very obscure, and it is difficult to understand precisely the opinion of the judges upon the point, except that nothing was definitively determined. It'would seem that two of the judges were of opinion that no title need be set forth in the declaration, which is against the whole current of authority.

Serjeant Williams . in the above note, says, it was in that case held by two judges, against the opinion of the other two, that the words “to: the disinheriting, ” in the declaration, cured the want of stating the quantity of the estate of which the plaintiff was seis-ed — but he obviously questions the soundness of the opinion ; and even the opinion of those two judges will not help the plaintiff here as these words are not found in the declaration in this case.

In replevin the defendant is bound in his avow-ry, to set forth his title and the estate of which he is seised, to shew the authority under which he claims to exert the extraordinary power of distress, Harrison v. McIntosh, 1 Johns. R. 380, and Bain v. Clark, 10 id. 424, and the omission to do so is not cured by verdict. Idem. This case falls strictly within the principle upon which Bain v. Clark was determined. The title, and the only one that can give to the plaintiff this remedy is wholly defective; and there is no foundation for the presumption that it was proved and established by the verdict of the jury.

It is not a title defectively set forth ; for the plaintiff has not undertaken to set out any title within the meaning of the rule in this action. He has no doubt been misled by the precedents in 2 Chitty, 344, 5, which are appro-prj^e on]y jn an action on the case in the nature of waste, in which it is not necessary to set forth the title of the plaintiff, as-*n act^on °f waste. 2 Saund. 252, c. n. 7. This action is penal in its' operation and effect, and the plaintiff should be 1 held strictly to the principles which govern it.

This point being decisive against the defendant, it is unimportant to example any other questions raised on the argument. Judgment reversed.