Godwin v. Stebbins

Justice Heydenfeldt delivered the opinion of the Court. The appellant’s counsel has waived all objections but two, which he has urged with much ability. The first is, that the declaration alleges that the plaintiffs were lawfully entitled to the possession of the premises sued for, and that this is insufficient, because the statute declares that “the complaint shall contain a statement of the facts constituting the cause of action, in ordinary and concise language.” We decide that the statute is only declaratory of the requisition at common law, and that the averment is of a material fact, and therefore sufficient; and that it would have heen unnecessary and superfluous for the plaintiffs below to have encumbered the record by setting out in his declaration the evidence of his right. The next assignment of error relied on is, that the action was brought without a demand of possession, or notice to quit. According to the evidence, no such thing as a tenancy existed. The defendant below had merely the permission of the plaintiffs, without any consideration, to place upon the lot some building materials, to serve his convenience in some construction he was erecting in the vicinity of the lot in question. From the entire history of the case, as disclosed by the record, we infer that the defendant was a mere naked trespasser; and it would be absurd, in such a case, to require either a demand, or notice to quit. Let the judgment be affirmed.