Cardin v. Standly

By the Court.

Benning, J.

delivering the opinion.

The Act of 1854, “ To protect the owners of lands or tenements against intruders, and to provide a remedy for land owners in certain cases,” makes it the duty of the Sheriff, in such a case as the present, to turn the person in possession “ out of the possession, unless the person so in possession ¡shall, at once, tender to the Sheriff a counter affidavit stating ••that he does, in good faith, claim a legal right to the possession of such land or tenement.” (Acts 1854-’53.)

[1.] Cardin was the person in possession, and the Statute -extends to no other than the person in possession. It is not contended by the Counsel for the plaintiff in error, that Car■din’s affidavit, or that Dunn’s, Cardin’s landlord, was such an •affidavit as is thus required. And certainly neither affidavit •was.

Was Cardin’s affidavit amendable under the Amendment .Act- of 1854 ? We think not. That Act does not extend, 'beyond the subject of amending pleadings. (Acts 1854-’48.)

[2.] The affidavits in cases like the present, are not what constitutes the pleadings. They constitute a foundation on which pleadings may be raised. It is made the duty of the Sheriff to deposit in the Clerk’s office. When he has done, .this, “an issue may be made up and tried by a Jury.” To make up an issue, there must be allegations by the opposite parties. It is these allegations that, if made, will constitute the pleadings between the parties in a proceeding under this Statute.

We think, therefore, that the several decisions of the Court below were right.