James Moore Wayne

“ A judgment of nonsuit is only given after the appearance of the defendant, when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he has not followed the remedy which he has chosen to assert his claim as he ought to do. ”

“ And then the testator states his inducement for making the codicil to be Samuel's apparent relinquishment 'of every intention to agricultural pursuits,' and that being absent at sea to qualify himself for a seafaring life, he considers it to be more for his interest and happiness to repeal and revoke 'the part of my will wherein any part of my estate, real or personal, is devised or bequeathed to my son Samuel therein named,' and in lieu thereof to bequeathe to him only the income, interest, or rent of the real or personal estate during his life. ”

“ Then the defendant, Fitz Henry Homer, who is tenant of a part of the land demanded, tendered the general issue on a joinder of the mise, on the mere right of the demandant, as to that of part of the land of which the defendant is tenant; with pleas of general non-tenure as to a part of the demanded premises, and of special non-tenure as to the residue. ”

“ The action is a writ of right. The demandant declares that he has been deforced by the tenant, Fitz Henry Homer, of certain premises claimed by him as his right and inheritance, of which he was seised in fee within twenty years before the commencement of his suit, at the May term of the Circuit Court, A. D. 1851. A motion was made at a subsequent term to quash the writ, upon the ground that the remedy by a writ of right had been abolished by the Revised Statutes of Massachusetts, c. ”

“ Act of 1807, c. 75; Rev. Stat. of Mass. c. 146; Act of February 20th, 1836, repealing expressly previous acts, Rev. Sts. 814, 821; Rev. Sts. of Mass. c. 119; Report of the Commissioners of Revision of Mass. Sts. ”