
    William H. Backus and Ann, his wife, agt. Thomas B. Stilwell and others.
    A proceeding for the partition of lands, is clearly cm action within the definition contained in the 2d section of the code. Section 103 declares the action to be heal. It seems that the only proper manner of bringing the action now is, by summons and complaint.
    
      Motion at chambers,
    
    
      Oct. 30, 1848.
    action was commenced on the 29th of August last, by the service of a summons and complaint pursuant to the code. The object of the proceedings is a partition of lands. A motion is made by the Defendant Thomas B. Stilwell, to set aside the Plaintiff’s proceedings for irregularity, and the ground upon which the Defendant relies, is that the proceedings should have been instituted in the manner prescribed by the Revised Statutes, and not by summons and complaint.
    Otis Allen, for Defendant Thomas B. Stilwell.
    
    A. D. Robinson, for Plaintiffs.
    
   Harris, Justice.

A proceeding for the partition of lands is clearly an action, within the definition contained in the second section of the code. It is insisted by the counsel for the Defendant that the proceedings for partition being provided for by the third title of chapter five of the third part of the Revised Statutes,” are by the 390th section of the code excepted from its operation, and that, therefore, such proceedings can only be instituted by petition as prescribed in the title of the Revised Statutes referred to. But I think the section of the code upon which the Defendant relies to sustain his position, cannot be so construed; for after excepting from the operation of the code certain proceedings authorized by the Revised Statutes, including partition, the same section proceeds to say “ that when, in the course of any such proceedings, or in consequence thereof, a civil action shall he brought, such action shall be conducted in conformity to this act.” If, therefore, proceedings for partition are within the definition of an action, it follows that such action must be instituted in the manner prescribed by the code. That such was the intention of the commissioners who framed the code appears from the 103d section, which declares the action for the partition of real property to be a local action, and the 109th section also provides that in “an action for the partition of real property,” the service of a copy of the complaint may in certain cases be dispensed with. I cannot doubt that this • action is well brought. Indeed I think it could only be brought in this manner. The motion must therefore be denied.  