Sunderland

The complaint in this case is a bill addressed to the equity side of the court, whilst the facts authorise only a complaint in ejectment. The difficulty is this, that whilst the plaintiff prays for certain equitable relief to which he is not entitled, because there is no need of It, he also asks in effect, though very inartificially, for a judgment which would be executed by a writ of habere facias possessionem. In such a case the defendant could waive a jury, and perhaps, by arguing and submitting the question to the court, he has virtually done so. Such is the inextricable confusion into which a departure from the great landmarks of the English system of special pleading, and the amalgamation of law and chancery, have led us.

In obedience, then, to the spirit and meaning of our practice act, as near as I can ascertain it, I have concluded to treat this as an action of ejectment, in which a jury has been waived, and the case has been submitted to the judgment of the court.

Upon this basis I proceed, and to my mind the evidence establishes the following facts:

On the 4th day of December, 1852, the defendant, Charles Griffith, being indebted to one Caleb Gosling, executed to the…