c.7- THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ON THE PRINCIPLES AND PRACTICE OF THE ACTION OF EJECTMENT, AND THE RESULTING ACTION FOR MESNE PROFITS. BY JOHN ADAMS, u 1 OF THK MIDDLE TEMPLE, ESQ. BARRISTER AT LAW 7 Vow the last London Edition. TO WHICH HATE BEEN CAREFULLY NOTED, THE DECISIONS OF THE SUPREME COURT OF NEW-YORK, Front January Term, 1799, to October Term, 1820. WITH RVFEtlENCES TO DECISIONS IN THE COURTS OK MASSACHUSETTS ' AND PENNSYLVANIA, AND THE SUPREME COURT OF THE I'MTED STATES. BY PHILO RUGGLES, ESQ. COUNSELLOR AT LAW. prilLISIlED BY STEPHEN OOULI>, (SIGN OF LORD COKEO Corner of Wall and Broad-Strtett. Wm. G rattan. Printer. 1821. * Southern District of JVeto-lY BE IT Kli.M . That on the tenth day of Matvb, in tlie fol Independence ol tin; United States of America, WILKY 6c 11ALSTK1). of tin- i'-i.-i. lmvr- (!"i'ii-iti-i! iii thi-; Oili- ( , the title of a Book, the right whereof they claim ;i. proprietors, in the words following, to wit: u A Treatise on tlir Principles and Practice of the Action of Kjectment. and tip ing Action for Mt-ne I'rolits. By John Adams, of the Middle Temple, KM). T);n. Law. From tliei.-ist London Edition. To which have been carefully noted, it the Supreme Court of New Vorlt, from January Terra, 1799, to October Term. l':J<>, wilt- references to the decisions in the Courts of Massachusetts and Pennsylvania, and the Su prcmc Court of the United States. By Philo Ruggles, Esq. Counsellor at Law.'' In conformity to the Act of Congress of the United States, entitled, " An Act for Um encouragement of learning, by securing the copies of maps, charts, and books, to the "authors and proprietors of such copies, during the times therein mentioned;" And also, to an Act, entitled, " An Act, supplementary to an Act, entitled, an Act for the encou- ' ragement of learning, by securing the copies of maps, charts, and books, to the authors ..in! pr n;Tiftivrs nf such copies, (luring the times therein mentioned, and extending tin- bcnehts tbvieof to the arts of designing, engraving, and etching historical and other 'prints." Gf. L. THOMPSON, Clerk of the Southern District ul > v. -A . . TO THE RIGHT HONOURABLE EDWARD LORD ELLENBOROUGH, LORD CHIEF JUSTICE OF ENGLAND, &C. &C. &C. THIS TREATISE 18, WITH HIS LORDSHIP'S KIND PERMISSION, MOST RESPECTFULLY INSCRIBED BY HIS OBLIGED AND OBEDIENT SERVANT, THE AUTHOR. 74884G ADVERTISEMENT TO THE SECOND EDITION. IN the present Edition the Author has corrected some errors, and supplied some defects, which re- mained undiscovered until after the original publica- tion of the Treatise ; and has, also, added some new matter, which he trusts will render the Work more complete. The Chapters on Evidence, and on the Action as between Landlord and Tenant, have been enlarged ; and, in the practical part of the Work, se- veral manuscript cases have been introduced. An alteration has also been adopted in the arrangement of the Chapters; and at the suggestion of several professional friends, and by the kind permission of Mr. Tidd, those practical forms, to which the Author referred in the Preface to the first edition, form an Appendix to the present volume. 10, CROWN OFFICE-ROW, TEMPLE. May 1, 1818. TO THE FIRST EDITION. IT has been the Author's chief endeavour, in the following pages, to investigate the principles upon which the remedy by Ejectment is founded; to point out concisely the different changes which the action has undergone ; and to give a full and useful detail of the practical proceedings by which it is, at this time, conducted. To this end the later decisions have been very fully considered ; whilst a slight mention only has been made of the more ancient cases, now, for the most part, indirectly overruled, or altogether in- applicable to the modern practice. Before the time of Lord MANSFIELD, indeed, no regular system seems to have been formed for the government of the action ; and that illustrious judge, considering an Ejectment as a fiction invented for the purposes of individual justice, endeavoured to mould Vlll PREFACE. it into an equitable remedy, and to regulate it by maxims, in some degree independent of the general rules of law, as well as of the practice in other ac- tions. The erroneous principled on which this sys- tem was founded, were pointed out by the late Lord KENYON ; and a material alteration, in the mode of conducting the action, took place from the time of his Lordship's elevation to the Bench. By his sound and luminous decisions, the remedy has been placed upon its true principles ; and he lived to see a system nearly completed, which, uniting the equitable fic- tions of the particular action with the general prin- ciples of law, has preserved unbroken the great boundaries of our legal jurisprudence, and, at the same time, rendered the remedy most useful and comprehensive. The correct principles established by this great lawyer still prevail, having been uni- formly maintained, and ably illustrated, by the more recent decisions of the different courts. The Author has enlarged upon these circumstances, in order to account for the personal judgment he has, iu some instances, found it necessary to exercise with regard to decisions anterior to the time of Lord KEN- YON ; many cases being still extant as authorities, PREFACE. ix which seem wholly inconsistent with the modern principles of the action of ejectment. The application of the remedy, as between land- lord and tenant, forms also a material part of this treatise; and it has there been the Author's endea- vour to give some useful practical directions respect- ing notices to quit, and the manner of proceeding on the forfeiture of a lease, at the same time explain- ing the principles upon which those directions are founded. The evidence necessary to support and defend the action in common cases has also been considered ; and instructions for proceeding according to the an- cient practice have been added, as far as can be ne- cessary at the present time. For practical forms in ejectment, the Reader is re- ferred to those contained in Mr. TIDD'S Appendix to his Practice of the Court of King's Bench : a col- lection, which appears to the Author, too complete to require addition, and too accurate to be suscepti- ble of improvement. 5, SERJEANTS' INN, May l, 1812. PREFACE THE AMERICAN EDITION. As no branch of jurisprudence is more important than that portion of it by which real estate is govern- ed ; so no legal remedy should be more clearly under- stood, than that by which the title to landed property is judicially determined. This remedy is found in the modern action of Ejectment, the essential features of which, as established by the British tribunals, have been adopted by the Courts of New-York, with less variation than in any other state in the Union. There being no work upon the subject exclusively American, a well written English treatise has, there- fore, become indispensable. As a summary of the principles and practice that regulate the British courts, the English edition of the present work will unquestionably be found of great value ; and for con- ciseness and perspicuity it appears, upon a compari- son with the latest and most approved edition of Mr. Runnington's treatise, to merit a decided preference. Still the work to the American practitioner, is in- complete, without a reference to our own adjudged cases, and the rules established in our own courts. The Reports of the Supreme Court of the State of All PREFACE. New- York have been enriched, during the last twen- ty years, by the learning and talents of distinguished jurists, by whose labours the English system of law has been ably illustrated and adapted to the policy and genius of our government and institutions. The volumes containing their valuable decisions are, how- ever, so numerous, that a ready reference to them (and especially at circuits) has become impossible. To remedy this inconvenience, as far as relates to the law of Ejectment, the present notes have been added, in compiling which, reference has also been had to the decisions of the Supreme Courts of Massachu- setts, Pennsylvania, and the United States. The reports have been examined with care and attention, and the principles which they contain have been ar- ranged in the order laid down in the text, and in a manner calculated to render a reference to the origi- nal decisions easy and convenient. The object of the compilation will be fully attained, and the Editor will feel himself amply repaid, if by the notes to this treatise the labours of the practitioner are light- ened, and the researches of the student facilitated. March \5th, 1821. CONTENTS. CHAPTER I. OF THE ORIGIN PROGRESS AND NATURE OF THE ACTION OF EJECTMENT. Definition of the action .... 1 Its origin ... 7 History of its ancient practice . 10 modern practice . .13 CHAPTER H. OF WHAT THINGS AN EJECTMENT WILL LIE, AND HOW THEY ARE TO BE DESCRIBED. Of what things an ejectment will lie . . . 16 How they are to be described . . .20 CHAPTER HI. 6F THE TITLE NECESSARY TO SUPPORT THE ACTION OF EJECTMENT. Of the general requisites of title . . .32 Of discontinuance . . . . .34 Of descent cast . .... 40 Of the statute of limitations . . . .46 Of the persons who by reason of their several titles may maintain ejectment . . .61 Tenant lor years, for life, in tail, in fee . 61 \M < OVfENTS. Page Mortgagee .... 62 Lord of a manor . 63 Copyholder . . . . .65 Lessee of a copyholder . . .67 Widow for her free bench . : .67 Guardian . . . . .68 Infant ...... 69 Assignee of a bankrupt . . .69 Conusee of a statute merchant, or staple . 70 Tenant by elegit . . . .70 Personal representative . . .72 Devisee . . . . .73 Grantee of a rent-charge . . .73 Assignee of the reversion . . .74 Adverse possessor for twenty years . . 76 Corporation . . . . .79 Rector or vicar . . . .80 Trustees ..... 80 Joint-tenant, &c. . . . .88 Lunatic . . . . .88 Person claiming under an award . . 89 CHAPTER IV. OF THE CASES WHICH REQUIRE AN ACTUAL ENTRY UPON THE LAND BEFORE EJECTMENT BROUGHT. In what cases an entry must be made . . .90 By whom the entry must be made . . .96 Mode of making the entry . .97 CHAPTER V. OF THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT. Of the notice to quit, Origin and history of . . . .102 CONTENTS. Xlii Page Of the notice to quit, When necessary, and when not . . .105 By whom, and to whom to be given . . 120 Service of ... .124 Form of ... 124 Period of its expiration .... 128 How waived ... . 139 Of provisoes, &c. in leases for re-entry, Origin and history of ... 145 \Vhatcovenantsarevalid . . . 147 Proceedings on, for rent in arrear . . .148 Covenants, how broken .... 162 Conditions, how dispensed with . . . 171 Who may bring ejectment on . . . 171 How waived ..... 173 teriod of their operation .... 175 CHAPTER VI. OF THE CASES IN WHICH THE ANCIENT PRACTICE IS STILL NECESSARY. On a vacant possession . 177 In an inferior court . . . . 1 77 How to proceed . . 1 78 CHAPTER VII. OF THE DECLARATION IN THE MODERN ACTION OF EJECT- MENT, AND NOTICE TO APPEAR. Of the declaration, How entitled . . . . .180 Venue . . . . . .186 Demise . . . . . .186 Entry . . . 198 Ouster ...... 198 Of amending the declaration .... ?00 X1T CONTENTS. Page Of the notice to appear .... 205 CHAPTER VIII. OF THE SERVICE OF THE DECLARATION, AND PROCEEDINGS TO JUDGMENT AGAINST THE CASUAL EJECTOR, WHEN NO APPEARANCE. Of the service of the declaration .... 209 the affidavit of service . . .216 moving for judgment . . 219 the time for appearance .... 220 filing common bail ..... 223 signingjudgment . ... 224 setting aside judgments .... 226 CHAPTER IX. OF THE APPEARANCE PLEA AND ISSUE. Who may appear ..... 227 Of the consent rule ..... 233 consolidation rule .... 237 How to appear . . . . .238 Of the proceedings after appearance . . . 241 the plea ...... 242 the issue ...... 245 CHAPTER X. OF THE EVIDENCE IN THE ACTION OF EJECTMENT. On the part of the lessor, General points relating to . . . . 248 By Heirs . . . . . .252 Devisees ..... 259 Personal representatives . . .271 Surrenderees of copyhold . . . 272 CONTENTS. Page By Lessees of copyholders . . . 272 Tenants by clajit . . 272 Conusees of statutes merchant and staple . 272 Rectors and vicars . . 273 Guardians , 274 Assignees of bankrupts . . 274 Joint tenants, &c. . . 275 Landlords .... 277 Assignees of reversion . . . 283 Mortgagees .... 283 Lord of a manor . . . 284 On the part of the defendant . . . 285 CHAPTER XL OF THE TRIAL AND SUBSEQUENT PROCEEDINGS. Of the trial ..... 287 judgment .... 294 costs ..... 300 execution .... 305 writ of error . . . .312 bringing a second ejectment . .. .315 CHAPTER XII. OF STAYING THE PROCEEDINGS IN THE ACTION OF EJECTMENT. Until particulars of breaches be given . . 317 security he given for costs . .. . 317 costs of a former ejectment be paid . . 319 When two actions are depending for same premises . 323 Upon Stat. 7 Geo. II. c. 20 . . 324 Stat. 4 Geo. II. c. 23 . . 327 JCV11I CONTENTS. CHAPTER XIII. OF THE ACTION FOR MESNE PROFITS. Page Origin and nature of .... 328 By whom to be brought .... 330 Against whom . . . . .331 ,Of the pleadings . . . . . 332 evidence . 334 damages . ... 338 costs . . . . .339 APPENDIX OF FORMS . . . .341 INDEX 383 TABLE or CASES CITED. A. ABLETT v. Skinner Adams, Fitchet v. v. Goose Addy v. Grix Aislin v. Parkin 189- I Alexander, Doe, d. Schofield t;. 155 *, v. Gibson Allen, Doe, d. Shephard, v. 174 ' - v. Foreman v. Rivington , Harris . Alker, Goodtiile, d. Chester I Alston, Doe, d. Selby o. Andrews, VVhittingham v. Angel, Keene, d. \ngel v. Anon. (3 Leon. 210) (2 Dal. 95) (Skin. 412) (1 Vent. 248) (6 Mod. 222) (1 Mod. 3r>) II Mod. 3/>4) '12 Mod. 313) (12 Mod. 21 ) j:< (1 Wils. 130} Page Page li-8 Anon. (Salk. 257) 202 07 /'C n || c <,>> S) 310 10: ( 1 1? MAAM * OTQ\ 305 (2 Sid 155) 1OA 180 (l Cowp. 128) ouv 318 31 (Dyer H6) 26 329 (M. T. 1817) 207 \ Anstey v. Dowsing, 266 j.97 Archer, Lamb v. 228 318 d ll'tuLf v tf Snftnn 326 , II* 1 1 <1 1 1 K 1 ^ f . . . lla^'J 26 Argoll v. Cheney 13 320 A-h, Felton 327 24 \sliburner, Roe, d. Jackson o. 111 20 Ashworth v. Stanley 22 98 \-kow, Carey v. 270 1 1 Vllierly, Doe. d. Hamilton r. 319 186 Atkin.s r Hat ton 273 836 \tkinMn. (irviyson p. 262 252 Atiorncy (i^neral c. Barnes 26S 213 Audli-v'* ( ';>^ s-7 ,228 F Holhird 97 318 Austinc r. Hood Sit) TABLE OF CASES CITED. Awder v. Nokes Ajlott, Cole v. Page 76 25 B. Badtitle, Goodtitle, d. Price v. 185 , , d. Read v. 21 1 , , d Richmond, Duke of, v. 222 , , d. Roberts v. 213 , d. Wanklen v. 217 , d. Gardner v. 210 240. 242 , Goodriglit d. Ward v. 245 Badger v. Floyd 315 Badraering. Pike v. 26 Bagshaw, d. Ashton v. Toogood 214 Bailey, Tiley r. 303 Baker, Wliitlock v. 2.06 . v. JMellish 86. 247. 277 < v. Roe 17 Baldwin, Goodtitle, d. Parker v. 7 Ball Partridge v. 194 Balwin, Brooke, d. Mence v. 307 v. Wine 26. 80 Bank of England, Glynn v. 273 Barnes v. Peterson Barrett, Smith v. Barber, Doe, d. Crisp v. Barclay, Doe d. Church/ 1 . Bartlet, Howard v. Barry, Morris o. -, Morres v. 22 17 31 322 68 187 295 314 76. 172 316 Barnes v. Bulmer Barton, Threr v. Barefoot v. Fry Barnardiston, Smith, d. Ginger v. 305. 321 Barker, Omichund r. 265 247 245 3J6 Barlow, Highmore v. 181 H;i rues. Attorney General v. 23 llaiiicv. Sim- or v. 76 Barnaby, Turner v. 289- 3n Bass v. Bradford Bath (Esirl of) v. Shenvin Batten, Doe, d. Cheney r. 140. 144 l6l. 3,29 Bawden, Right d. Dean of Wells, v. 118 Baxter, d Abrahall v Brown I'O , Earl d. Goodwin r. 2t'3 Bayliss, Doe, d Morland. v. 211. 218 Beard, Right d. Lewis v. 104. 116 Beaurhamp v. Burt 179 Beauclerk. Kenrirk v. 81, 85 Beck, d. H.twkins v. Welsh 69 Bedfll v Constable 68 Bed well, Thrustout v. 289. 301 304 Belcher, Thunder d. Weaver ?>. ( 2 104. 107. 284 Bell, Doe d. Rigge r. !' 4. 108 134. 164 v. Harwood 251 Bellamy, Doe, d. Burrell v 67- 68. 257 Bentley v. Poole 112 , Throgmorton, d. Fair- fax v. 289 Bennington v . Goodtitle 22 Benion, Legg, d. Scot r. 117. 125 Benson, Pleasant,d. Hayton v. 123 Benn, d- Mortimer v. Denn 322 Bengo, Sleabourne v. 2y6 Bent, Worrall r. 296 Berkley, Peerage Case 256 Berrington, d. Dormer v. Park- hurst 91.99.191 Berney, Stocker v. 76 Bery, Rex v. 186 Bettison, d. Howe v. Bromley 267 Bethill, Floyd . SOB TABLE OF CASES CITED. xxi Page Uevan, Doe, d. Goodbehere v. 16 > Biggs, Doe. d. Leicester v. 81. 84 111 Bimlover v. Sindercombe 21. 24 Bingham. d. Lane v. Gregg 326 Birch v. Wright 106,107. 1 8 144. 2b4. o2y Bird, Doe.d. Hellings v. 5b . Snell 12 Birkbeck r. Hughes 218 Bissel, Morgan, d. Dowdings v. 1 1 J Blades. Harrison v. 256 Blakey, Clayton v. 104. 108. 117 164 Blackman, Goodwin . 196. 198 Blackham, ." mith v. 252 Bliss, Doe,d. Boscawen v. 174 Bluck, Doe, d- Morgan o. 306 Bodily, Grumble v. 324 Bener v. Juner 187 Bond v. Seawell 26 1 Bourne, Hunt . 94, 95 v. Turner 250 Bouehier v. Friend 223 Bradford, Bass v. 2 .5 Braham, Goodtitle,d Revettt?. 29 Breach, Doe, d. Oldershaw v. 171 Brewer, d. Lord Onslow . Eaton 161 , Dor, d. Byne v. 181. 246 Brewster, Hillintrsworth v. 16. 23? , Medliclot v. l>37 Brend, Tunstal v. 185 Britrhtwen, Doe, d. Milner v. 5 } Brittle r. Dade 214 Brice v. Smitli Brickhurst, Kamsbottom v. '2f'2 Brills. Hunter v. 037 Bristow (Mayor of,) Rex v. - 177 Brown's Case 4 . , Doe,d. Warner v. 103, 104. l f> 8 , Holmes, d. Brown /-. , Baxter, d. Abraliall v. 110 Brooke, d. Mence v. Baldwin 307 15roc!ei ick w. Broderick Bromley, Bcttison, d. Howe P. 267 Page Broughton . Langley 81 Br\an, d. Child v \\inwood 63 Brydon, Gates, d. Wicfall v 33. 92 236 Buckley v. BurkU-y '223 Bugby, Crusoe, d. Blencoweo. 163 Btilmer, Barnes r. 314 Burbury ?'. Yeomans 23 Burchrlt v Durdant 81 15m j hers oi Carmarthen, Rex. 292 Burght-rs, Grimstone, d. Lord Gower v. 237 Burnr v Richardson 331 Burt, Beauchamp v. 179 Bury, Phillips u. 24S Butcher, Doe, d. Taggart v. 302. 311 c. Calvert, Doe, d. Ash v. 140. 269 281 v Horsefall 336 Calcraft, Wadman v. 158 Camell v. Clavering 80 Capel r. Saltonstall 204 Carleton, d. Griffin v. Griffin 263 Carlwright, d. Demi, Jacklin r. 128 Carter, Doe, d. Mitchinson v. 1(>6 v. Cromwell 195 Carey v. Askew 270 Casson t). Dade 265 Cator, Goodrijjht, <1. Hare v. 61. 90.92. 100. 146 Challenor v. Thomaj 18 Cbapmaii . Sharpe 68 Chaworlli r. Phillips 76 ( harnock, Roe, d. Henderson v. ('hater v. Hawkins 265 Chalkhill, Kden r. 269 Chaplin, Radcliffe v. 258 Cheney, Argoll v. 13 Checy, Peto v. 181 Chetwynd, Wyndham v. XXM TABLE OF CASES CITED. Page Church, Doe, d. Morgan 0. 128 Clavering, Caraell o. 80 Clarke, Kinaston v. 27-i - v. Phillips 99 - , Doe d. Grundy v. 34. 80. 191 - , Doe d. Lock wood v. 167 Clare, Doe, d. Coore v. Ill Clayton v. Blakey 104. 108. 117 164 Clayton's case 200 Clapham, Holdfast, d. Woollams v. 66. 257 Claxmore v. Serle 290 Cleabourne, Jordan v. 24 Clements, Doe, d. Folkes u. 64 192 Clerke . Rowell , Linsey v. Close's case Clyraer v. Littler Cocks v. Darson Cocke, Sherman v. Cole v. Aylott - , Taylor v. - , Wade v. - , Small, d. Baker v. 291 Colley, Wilkinson v. Comyn v. Kineto - , v. Wheatley - , St. John '. Coningsby, Lord's case Constable,Bedell v. Connor v West Cooke, Higham o. - , Roberts v. Cooper, Doe, d. Tilyard v. Cope, Glovef v. 294 298 330 294 88 177 25 70 68 297 121 17 17 21, 22 29 < 68 21.25 200 320 231 76 Copeland, Doe, d. Palmerstone r. 289 Coplestone v. Piper 2ij Copous,Oakapple, d. Green v. 280 Cordwent, Goodright, d. Charter t>. 140 Cottingham f. King 21,22.196 Cowley, Jemott . 73 Crabb, Smith v. 237 Creach . VVilmot 53 Page Crick, Doe, d. Lord Macartney 0. 123. 125 Cromwell's case 38 Crouch, Doe, d. Jones . 169 Croker, Evans p. 200 Croker, Stephens . 200 Croft v Pawlet 265. 268 Cromwell, Carter v. 195 Crusoe.d. Blenrowen v. Bugby 163 Cuff, Doe. d. White P. 276 Cuthell, Right, d. Fisher v. 120. 279 Cutts, Jenny, d. Preston v. 211. 218,219 Cutting v. Derby 330 D. Darres' case Dade, Brittle v. , Casson o. Dale, Smales v. Hooper . Danvers v. Wellington , Doe, d. Cook v. 23,24 244 265 55. 96 181 23 41.52 270 Dancaster, Lovelock, d. Norris v. 230, 231 Darby, Right, d. F lower . 130, 131. 134 Darson, Cocks . 88 Davids, Goodright. d. Walter v. 173 Davy v. Smith 284 Davenport v. Tyrrell 57 Davis, Goodtille v. 218 , Martin v. 233 v. Moggridge 333 v. Pierce 248 v. Doe 225. 302. 333 338 , Roe, d. West . 149- 154 155, 1.^6. 277- 282 , Doe, d Challnor v. 53 . d. Povey c. Doe 310 Davis, r. Purdy 199 TABLE OF CASES CITED. XXUl Page Dawson. HOP. d. Saul r. 307 Dcardon, Kceue, d. Byron v. .VJ. 82.87- 314 Dean, Fenn. (I. Knit- lit p. 214 Demon, DOP, d. Stewart P. 23 Denn P. Spurrier I !' Denn, d. Brune v. Rawlins 104. 108 118 , d. Burgis v. Purvis 197 , d. Goodwin i\ Spray 2.">8 , d. JackliH v. Cartwright 128 -. d. Lucas v. Fullbrd 318 244 337 299 322 215 Denn, d. Wroot v. Fenn v. White , Far v. , Benn, d. Mortimer P. , Fenn, d. Tyrrell y. Dent, Savage v. 177- 183. 210 Denre v. Doble 320 Derby, Cutting v. 330 Derrett Kemp P. 132,133 Deveretix v Underbill 310 Dillon v. Fraine 85 Dinely, Doe, d. Messiter v. 314 , Hand v. 327 Dobbs v. Passer 225. 239 Dobson, Hob-on,d. Bigland v. 238 Doble, Dence v. 320 Doe, d. Ash, v. Calvert 140. 29. 281 , d Banning, v Griffin 257 , d. Bass, v. Hoe 208 , d. Baddam. r. Roe 21 I , d Bailey, p Roe 212 . d. Bakrr. r Woombwell 281 , d. Barnett v. Keene 65 , d. Bedford, (Duke of,) V. Kightley J27 , d. , v. Kendrirk 135 , d. Bennington, v. Hall 66. 270 , d. Beyer, v Roe 3 1 2 , d. Bird. v. Roe 207 , d Bi , d Foxlow. v Jeffries 204 , d. George, v. Jesson 60. 257 , d. Gibbons, v Pott 33 , d Gill, v. Pearson 97- 17 , d. Ginger, v Roe 236 , d Godsell. t;. Inglis 141 , d. Goodbehere, v. Bevan 166 , d. Graham, v. Scott 87 , d. Grundy, . Clarke 34. 80. 191 , d. Grocers' Company, v. Roe 225 , d. Hallen, v. Ironmonger 81 , d. Hamilton, v. Atherley 3J9 , d. , i'. Hallierley 320 , d. Hanson, v. Smith 2?0 , d. Hardman, v. Pilkington 202 , d. Harvey, v. Roe 214 3 d. Hanvood, v. Lippencott 232 , d Hayne, v. Red fern 80 , d Heapy, v. Howard 139 , d. Heblethwaite, i'. Roe 231 , d. Hellings, v. Bird 5<; , d. Hind/, r. Vince 127. 136 , d. Hindly, v. Rickarby 283 , d. Hitclnngs, v. Lewis 15D, 16 , d. Hodson, v. Staple 32. 87 , d. Holcomb. v. Johnson 135 , d. Hollingsworth, v. Sten- nett 104 117 , d. Holland, v. Worslty 164 , d. Jones, v. Crouch 16[) 9 d. , v. W flde 250 Page Doe, d. Johnson, v. Lord Pem- broke 256 , d. Knight, v. Quigley 104. 117 . d. , 0. Lady Smith 232 . d. Leeson, v Sayer 104. 1 JG , d Ledger, v. Roe 225 , d. Leicester, , Biggs 81. 84. 114 , d. Leppingwell, . Trussell 305 , d. Lintot, v Ford 304 , d. Lockwood, v Clarke 167 , d. Lock, p. Franklin 233 , d. Lulham,t> Fenn 187 , d. Macartney, Lord, v. Crick 123, 124 , d. Martin v. Watts 108 , d. Marsack, r. Read 121 187.275 , d. Mason, v. Mason 258 -i , d. Matthewson, v. Wright- mnn 125, 126 , d Mayhew, v. Erlam 326 , d Mrs-siter, r. Dinely 314 , d Milner, . Brightvven 51 , d. Milnes, v. Lamb 2JJ2 , d. Miller, r. Noden 114 , d. Mitchell, v. Levi U.J , d. Mitchinson, v. Carter 166 , d. Morris, v Rosser 89 , d. Morgan, v Church 128 1 <\. , v . Biuck 306 , d. Morland, v. Baslis x.11 218 , d Morton v. Roe 243 , d. Neale, v. Roe 214 . d Odiarne, v. White- head 36 93 . d ()ldershaw,. Breach 171 , d. O'Connel. . Porch 20 . d Prdmerston, Lord, v. Copeland 289 , d. Parry, '. Hod. Bell 104. 108 134. 164. 274 , d. Rum ford, v. Miller 203 , d. Rnst.p. Roe 244 , d. Lord Say & Sele, v. Guy 73 , d. Schofield, v. Alexan- der 155 , d Shephard, v. Allen 107 1.0 , d. Selby, y. Alston 318 , d. Shore, v. Porter 72. 1 19 192 , d. Smith, v. Smith 271 , d. Smelt, v. Fuchau 282 , d. Spencer, v. Godwin 170 , d. Spicer, v. Lea 126. 133. 136 , d. Stewart, r. Denton 23 , d. Strickland, v. Spence 136 138 , d. Taggart, v. Butcher 302 311 , d. Tarrant, p. Hellier 64. 257. 285 , d. Tilyard, c. Cooper 231 , d. Toilet, . Salter 197 , d. Troughton, v. Roe 225 238 , d. Tubb, v. Roe 325 , d. Vernon,p. Vernon 67. 270 , d. Vine, . Figgins 189 , d. Wad more, Selwyn 135 , d Walker, v. Stephenson 270 319 , d. . r. Groves 113 Page Doe, d. Warry, r. Miller 66 , d. Warner, v. Browne 103. 104 108 117 d. Whatley, v. Telling 191 d. White, v. Cuff 276 d. WhitftVld,*. Roe 154. 21 7 d. Wilson v Roe 212 218 d. Williams, r. Pasquali 119 d. , v. Humphreys 141 d. Wright 0. Roe 215 Davis, d Povey, v. 310 Roe,d.Cholmondley v 292 , d Cook, v 238 -, d. Hambrook, v. 212 -218 , d. Humphries, r. 312 , d Hyde, v. 240 . d Leak, v. 229 , d Stephenson, . 2 1 Tupper, d. Mercer, v. 213 Davies, . 225. 3U2. 333. 3S8 v. Reynolds 315 v. Roe 311 v Spiller 125 Donovan, Doe, d. Pitcher, v. 132 Donford Ellis 329 Dormer v. Fortescue 335 Dose, Lushington, d. Godfrey, v. 314 Douglas v. Shank 198 v 214 Downintrham's case 65 Dowsing, Ansty . 266 Driver, d. Sr ration, . Scratton 202 , d. Oxendon, c. Law- rence 230. 247 Drinkwater, Gulliver v. 333. 338 Drury v. Fitch 88 Duckworth, d. Tubly, r. Tun- stall 158 Dumpor's case 171 o. Syms 172 Dunch, Sprightley, d. Col- lins, v. 214 Durant, Potts r. 278 \.XVI TABLE OF CASES CITED Durdant, Burchett v. Dyson, Jeffries r. E. Page 81 330. 334 Earl v. Lewis 273 , d. Godwin, y. Baxter 283 Eaton, Brewer, d Lord Ons- low, v. Eastcourt v Weeks Eccleston v. Petty Rovton P. 161 65 265 20. 23, 2 26') 27 164 Eden v Chalk 11 Edmunds, Nash v. Edwards, Palmer v. Elden v. Keddell 271 Eliott Stephens v. 6.* Elliot, Roe, d. Truscott v. 96 Ellis, Donford v. 32>' , Roe, d Lee v. 204 v. Smith 261, 262 England, d. Syburn, v. Slade 32. 87. 247 Erith. Inhabitants of, Rex v. 2 6 Eriswell, Inhabitants of, Rex v. 255 Erlara, Doe, d. Mayhew v. 32 Evans . Crocker 200 Evans, Smith v. 26l Evelyn, Stonehouse v. 26 Eves, Rumney v. 25 F. Fabrigas, Mostyn v. 186 Fagg v. Roberts 2y6 Fairclaim, d. Fowler, v. Sham- title 12. 229, 230. 232 , d. Empson,v. Shack- leton 56 Farmer, d. Miles, v. Thrust- out 214 Far . Denn 299 Fawson, Goodright, d. Grif- fen r. 196 Pa& Felton v. Ash Fenn, d. Blanchard, v. Wood 235 , d Buckle, . Roe 214 , d Knight, r. Dean 214 , d Matthews, v. Smart 94. 172 , Rickattson v. Marriott 290. 306 , d. Tyrrell, v. Denn 215 , d. Wright, v. Johnson 259 , Denn, d. Wroot v. 244 -, Doe, d. Lulham v. 187 Fenwick's case 233 v. Grosvenor 232. 324 Ferrers, Roe, d. Pellat . 58 189 53 248 Doe, d. Vine o. Fineux, Hatcher v. Finch, Ivatt v. Fish, Longchamp, d. Good- fellow v. Fisher v Hughes , Kildare ??. 262 296 22 97 88 23.25 Fitrhet v. Adams . Fitch, Drury v. Fitzgerald v. Marshall Fleetwood, Thornby, d. Ha- milton v. 304 Flood, Goodright, d. Welch r. 22 Floyd, Badger v. 315 '- , v. Bethill 308 Focus v. Salisbury 98 Folkard v. Hemet 270 Foot, Thrustout, d. Wilson r. 301 Ford v Lerke 24 v. Gray 55. 96 , Doe, d. Lintot v. 304 Foster, Miller v. 274 Forrester, Goodright, d. Fow- ler v. 94 Forse, Zonch, d Forse v. 73 Forster, Doe, d. Clarges v. 280 Fortescue, Dormer r. 335 Fortune r. Johnson 310 Foreman, Allen v. 180 Foster v. Pitfall 40 Fox v. Swan , Mason r. 162. 173.251 29f- b ruine, Dillon w. 85 Franklin, Doe, d. Lock v. 233 Frazer, M'Keuire 0. 260 Freeman, Holdfast v. 206 Friend, Bouchier v. 22 "< Fryett, d. Harris . Jeffries 174 Fry, Thorpe v. -, Barefoot w. TABLE OF CASES CITED. Page 336 3 Hi 282 318 311 Fuchau, Doe, d Smelt v. Fulford, Denn, d. Lucas . Fi.lyara, Molineaux v. Furley, d. Canterbury, Mayor of, v. Wood 127. 136. 194 Forsden, Moore v. 187. 296 G. Gallimore, Moss v. 33. 106 Galliers, Roe, d. Hunter v. 148. 166 Gardiner v. Norman 179 Garrett v. Lister 271 George, d. Bradley, v. Wis- dom 31S Gibson, Wither v. 146 , Alexander v. 269 Giles, Hill v. 23 Girdlestone v. Porter 331 Glascock, Shires /. 264 Glover v. Cope 76 Glynn v. Bank of England 273 Godwin, Doe, d Spencer . 170 Goodright, d. Balsh, . Rich 234 , d. Charter, p. Cord- went 140 , d. Fowler, r. For- rester 94 , d. Griffin, v. Faw- son 196 , d. Hare, . Cator 6l. 90. 92. 100. 146 , d. Jones, v. Thrust- out 211.318 ,d. Peters, v. Vivian l6s , d. Rawell, . Vice 301. 306 XXVII Page Goodright, d. Russell, v. No- right 225 , d. Smallwood, v. Strother 26. I9f. . d. Stevenson, v. Noright 157 , d. Stevens, v. Moss 255 , d. Ward, v. Bad- title 245 , d. Walter v. Davids 1 73 , d. Welsh, . Flood 22 v. Hart 227, 228. 310 v. Holton 302 v. Moore 327 v. Wood 292 , Moore v. 181 Goodtitle, d. Brembridge, v. Walter 195. 197 , d. Chester, v. Alker 19.27 , d. Estwick, v. Way 110 , d. Gallaway, v. Herbert 1<>4. 117. 180 , d. Gardner, v. Bad- title 240 , d. Jones, v. Jones 32. 87 , d. Lux more, v. Sa- ville 171 , d. Massa, v. Thrust- out 212 , d. Norris, v. Mor- gan 62 , d. Parker, w. Bald- win 78 , d. Pinsent, v. Laro- miman 196 , d. Price, . Badli- tlc 185 , d. Read, r. Badti- tle 211 , d Revett, v. Bra- ham 259 , d Richmond, Duke of, v. Badtitle 222 , d. Roberts r. Bad- title 218 XXV111 TABLE OF CASES CITED. Page Goodtitle. d. Taysnm, r. Pope 32o , d. Wanklen, v. Bad- title 217 r d Wright,? 1 . Otway ?S H. Pgtf Haddock's case 290 H nli-cil v Wedgwood 214 Hall, Keech,cL Y\ arne t>. 33. :J. 107. 284. 331 Hall, Doe, d. Bennirigton . 66. 07,1 v. Badtitle 240 , r Dans ^ift . v. North 329. 333 ... .. . t? Tombs 330 338 v , Walton 22 Bpnninirton ^* 21 v. Hughs 181 Hamond v. Ireland 23 v. Savel 24 Hammond v. Wood 70. 272 Hancock r. Price 22 Hand Dinely 327 Hands v. James 265. 268 Harpur's case 16. 26 Harvey, Roe, d. Haldane v. 29 , Metcalfp. 335 Harrison, Roe, d. Gregson v. Thomas v 314 Goodwin v. Longhurst 65. 67 v Blackman 196. 19* Goodgaine v. Wakefield 200 Goose, Adams v. 199 Gough,d. Calthorpe.w.Gough 2tf6 Gowthwaite, Hassell, d. Hod- son v. 74. 173 Gray, Ford . 55. 96 , Thrustout, d. Turner v. 164. 172, 173 202. 288. 318 Grant, Doe d. Clarke v. 276 Grayson . Atkinson 262 Greenley's case 38 Green v Proude 96 i Green's case 161 Gregory v. Henderson 83 Gregg, Bingham. d. Lane, w. 326 Greensmhh, Harding, d. Baker v. 318 Gree . Rolle 52. 97- 299 Griffin, Carlton, d. Griffin v. 263 , Doe, d. Banning, v. 257 Grimstone, d. Lord Gower, v. Burghers 237 Grix, Addy 0. 26 1 Grills, Hussey v. 259 Groves, Doe, d. Walker v. US Grosvenor, Fenwick . 232. 324 Grumble v. Bodilly 324 Gryle v Gryle 262 Gulliver v. Wagstaft' 217 v. Drinkwater 333. 338 Guy, Doe, d. Lord Say and Sele p. 73 * Rntid 10- - v. Harrison 26l jj Blades 9 56 Harper, Worrall v. 26 , Jordan v. 305 Harris, Withers v. 311 , Rexo. 310 v. Allrn 329 Doe d Puddicombf? v. 281 Harding, d. Baker, r. Green- smith 218 Hart. Goodright v. 228. 310 Harbert, Tredway v. 319 liar wood, Bell p. 25) Hart on v, Harton 82 Harrington . Wise 109 Hassell, d. Hodson, v. Gow- thwaite 74. 173 Hatoher v. Fineux 53 Hatton, Atkins v. 273 Hatherley, Doe, d. Hamil- ton r. 319, 320 Hawkins, Moore v. 246 , Chater . 265 Haydon, d. Carrol, Vicars v. 204 Haulotr Rrr r\ KamfnrA 1 9"> TABLE OF CASES CITED. XXIX l, TV>e, d. Parry . 131 Ha/.l. wood, d. Price, . That- i-lier 20? Ilraton. Little r. 146 Hraiherly, d. VVorthington, v. \\e>lon 187 H,-ath, Short v. 33y Metjan . Johnson 104. 117 Hellier, Doe, d. 1'arrant v. 64 257. 2R5 Hems . Stroud 25. 274 Hemet, Folkard v. 270 Hengest, Jones, d. Thomas v. 290 Henden, Smartley v. 179 Henderson, Gregory v. 8 Hersey, Roe, d. Wrangham . 190 Herbert v. Laughlyn 1U , Goodtille, d. Gallo- way v. 104 117. 189 Hicks, Roe, d. Jeffreys v. 66, 67. 270. 284 , Doe, d. Compere v. 93. 335 High am v. Cooke 200 Higgins v. Highfield 3j2 Higham '. Ridgway . 254 H'mhmore v Barlow 180 Hill v. Giles 2 Milliard v. Jennings 266 Hillitigsworth v. Brewster 16. 233 Hind, Seers v. 172 Hob-oii, d Bigland,?'. Dobson 238 Ho< khead, Plomer . 179 Hodgson, Doe, d. Parry v. 68 Hoet, Joans v. Hodgson, Mason, d. Kendale v. 225.241 Hodges, Wilson v. 253 Holton, Goodright v. 302 Holdmyfast, Newman v. If. 296 Holtord, Lade c. 33 Holmes, Poultneyu. 164 , Young v. 73 , d. Brown, v. Brown 293 Holdfast, d. Hattersly, *. Jack- son 319 Page Holdfast, d. Woollams, . Clapham 60. 257 , Thrustout, d. \V il- liams v. 320 v Freeman 206 t. Morris 333 Hooper v. Dale 181 Hood, Austine . 319 Hopkin's case 179 Horde, Taylor, d. Atkins v. 40 294. 306 Horsfall, Calvert o. 336 Howard v. Bai tlett 68 v. Wemsley 130 , Doe, d. Heapy v. 139 How, Lucas u 75 Hudson. Hunt v. 329 Hughs, Hall r. 181 Hughes, Birkbeck v. 218 , Fisher v. 296 Humphreys, Doe, d. Williams v. 141 Hunt v. Bourne 94, 95 v. Hudson 329 Hunter v. Britts 33f Hurst, Smith, d. Lord Stour- ton v. 212 Hussey . Grills 259 Hutchinson v. Puller 24 Hyde, d. CulliJord, v. Thrust- out 224 I. Inglis, Doe, d. Godsell v. 141 Ireland, Hamond r. 23 , Roe, d. Johnson v. 285 Ironmonger, Doe, d. Hallen . 81 Ivat r. Finch 248 J. Jackson, Odingsall v. 25 , Roe, d. Matthews t>. 126 XXX TABLE OF CASES CITL'U. Page Jackson, Holdfast, d. Hatters- ley v. 319 , Trymner v. 262 James. Hands v. 260. 268 Jeffries, Frvett, d. Harris v. 174 . Doe, d. Foxlow . 204 v. Dyson 330. 334 Jefts. Taylor .- 210 Jemolt v. Cowley 73 Jenkins, d. Harris, v. Prit- chard 92. 252 Jennings, Milliard v. 266 Jenny, d. Preston, v. Cutts 211. 218,219 Jesson, Doe, d. George v. 60. 257 Joans v. Hoel 24 Johnson, Doe, d, Holcombe v. 135 , Fenn, d. Wright v. 259 , Rich, d. Cullen v 285 -, Hegan v. -, Fortune . -, Proctor v. 104. 117 S10 311 176 269 Johns v. Whitley Jolliffe, Lowe y. Jones v. Lord Say and Sele 81 , d. Griffiths, v. Marsh 1 -24. 177. 183 , Doe, d. Duroure v. 59 , Goodtiile, d. Jones v. 32. 87 , d Thomas, v. Hengest 290 Jordan v. Harper 305 v Cleabourne 24 Jory . Orchard 279 Jurdan v. Stone 68 Juner, Boner r. 187 K. Keane, d. Byron, v. Deardon 52. 82. 87. 314 Keddell, Elden . 271 Keech, d. Warne, v. Hall 33 6?. 107. 284. 331 Keeling, Doe, d. Bish . 168 Pagt Keen, Doe, d. Barnett v. 55 , Williams, d. Johnson v. 243 , d. Angel, v. Angel 320 Kemp v. Drirett 132, 133 Kenrick v. Beauclerk 81 Ken.lrick, Doe, d. Bedford v. 135 Kesworth v. Thomas 202 Knightley, Doe, d. Duke of Bedford v. 127 Kildare v. Fisher 22 Kineto, Corny n o. 17 King, Cottingham v. 21. 196 , Doe, d Powell v 277. 282 , Short, d Limes w. 214 , Short v. 319-322 Kingsdale v. Man 309, 310 Kinaston v. Clarke 274 Kirkman v Thomson 39 Knight v Sims 24 , d. Phillips, v. Smith 84 Knipe v. Palmer 88 Kynaston v. Lloyd 39 L. Lade v. Hoi ford 3S Lambley, Doe, d. Eyre v. 280 Lamb v. Archer 228 , Doe, d. Milnes r. 282 Laming, Doe, d. Pitt v. 165. 169 Lammiman, Goodtiile, d. Pinsent v. 196 Langley, Broughton v. 81 Lansdowne. Penphrase v. 263 Laughlyn, Herbert v. 18 Lawrence, Driver, d. Oxen- don v. 230. 247 Law v. Wallis 290 Law, Doe, d. Chadwick v. 319. 323 Lea, Doe, d. Spicet v. 126. 133. 136 Lee v. Libb 261. 263 7'. Morris 79 TABLE OF CASES C1TET). izxi Lee v. Rowkeley, -, Rigley v. Lees, Roe, d Bree v. Leeds ( Duke of,) Pugh v. Legg, d. Scot, v. Benion 122. 125 Page 300 300 129 200 Leighton i>. Leighton Lengridge, Richardson v. Lerke, Ford v. Levi, Doe, d. Mitchell r. Lewis, Earl v. , Doe, d. Hitchings v. 316 103 24 123 273 159, 1..0 261 , 263 298 40 Lemayne v. Stanley Libb, Lea v. 26l. Linsey v. Clerk Lincoln College case Lippencott, Doe, d. Harwood v. 232 Lister, Garret v. 2"l Little v. Heaton 14* Littler, Clymer v. 294 Llewelyn v. Williams 200 Lloyd, Kynaston v. 39 London ( Bishop of,) Rex v. 17 Longchamp, d. Goodfellow, v. Fish 26? Longhurst, Goodwin v. 65. 67 Lonsdale, Roe, d. Raper T. 187 Lord, Roe, d. Thome, c. 253 Loveless u. Ratcliflf S10 Lovelock, d. Norris, v. Dan- caster 230, 2S1 Lowe, Rowe, d. Ebrall r. 86 v. Jollifle 269 Lowthal D. Tomkins 70 Lucas v. How 75 Lushington, d. Godfrey r. Dose 314 Luttrell, Pollard v. 97 Luxton, Doe, d. Blake v. 32 M. Maberly, Thompson v. 128 Machel v. Temple ?65 Macdunoch v. Stafford 20. 22 Mackinder, Pendock, d. Mac- kinder v. 265 MacKenzie v. Frazer 260 Maddon, d. Baker v. White 69. 120 Maddox, Orrell v. 277 Maldon's case 1"9 Mantle v. Wellington Mann, Winkworth v. Kingsdale v 187 108 309. 310 Martyn v. Nichols 24 Marsh, Jones, d. Griffiths v. 124. 177- 183 Marshall, Fitzgerald v. 23. 25 Martin v. Duvfs 233 Marriott, Fenn, d. Rickattson v. 2 ( JO. 306 Massey v Rice 25 Mason, Doe, d. Mason v, 258 - , d Kendale, v. Hodg- son 226. 211 - v. Fox 295 Maynard, Rawson v. 24 Medlioott v Brewster Mellish Sturt v. 60 - , Baker v. R6. 247. 277 Merlott, Tapner, d. Peckham v. 91. 96 Merrell v. Smith Methold v. Noright M<'tralf v. Harvey Miller, Doe, d. Warry v. , Doe, d. Rumford v. r. Foster L>< 1 217 66 203 274 273 187 Milbnrn, Powell v. Millener v. Robinson Minsliull, Roe, d. Crompton v. 144. 161 Mitrhell, Doe, d. Esdaile v. 190 Mojrgrtge v. Davis 833 Molnieaux v. Molineaux 18 v. Fulgam 310 Moore v. Fursden 187. '.'96 v. Hawkins 246 , Goodritjht v. 327 XXXII TABLE OF CASES CITED. Page Morris v. Goodnight 18] Morgan, Goodtitle, d. Norris v. 62 , Dowding v. Bissel 1 12 Morres v. Barry 295 Mortis v. Barry 187 , Holdfast v. 333 Morgan v. Stapely 304 Morewood, Outram v. 248 Moss v. Galliraore 33. 106 Mostyn v. Fabritjas 186 Moss, Goodright, d. Stephens v. 255 Mulliner, Doe, d. Colclough v. o3 Musgrave, d. Hilton, v. Shelly 92 N. Nash v. Edmunds 270 Nralf, Smalley v. 214 Negative, d. Parsons, v. Posi- tive 221 Neving, SouNhy v. 144 Newman v. Holdmyfast 17. 296 , Shiilyr. 132 Newton. Waddy v. 18 N i> hols, Martin v. 24 Noden, Doe, d. Miller v. 114 Noke -o. Windbam 69- 195. 318 Nokes, Awder v. 76 Noright, Goodright, d. Ste- venson v. 157 , , d. Rus- sell, v. 225 , Methold v. 217 Norris, Lee r. 71) Norman, Gardiner v. 179 North, Goodtitle v. 329. 333 O. Oakes, Styles, d. Redhead v. 290 Oakapple, d. Green, v. Copous 280 Gates, d. Wigfall, v. Brydon 33 92. 236 Page Odingsall T. Jackson 25 Old, Doe, d. Bristow v. 175 Old Arlesford, Rex v. 18 Omichund v. Barker 265 Orchard, Jory v. 279 Orrell v. Maddox 277 Oshourn v. Kider 200 Otway, Goodtitle d. Wright, v. 23 Outram v. Morewood 248 Ougly, Peate v. 262 P. Paine, Roe, d. Goatly v. Painter, Sturgeon v. Palmer's case Palmer, Knipe v. , Pigeot v. v. Edwards 169 110 24 83 39 1(54 Palmer, Doe, d Brierly v. 142 Partridge v. Ball 194 Parkin, 'Aialin v. 189-330.336 Papons. Zouch, d Abbott v. (i9 , v. 1 5 Parker, Roe, d Beebee v. 258 Pari. hurst, Berington, d. Dor- mer v. yi. 99. 191 Pasquali. Doe, d. Williams v. 119 Passer, Dol>!>s v. >. 239 Payne, Wood v. ~2. 297 Payne's n>e 79 Pawlet. Croft v. 265. 268 Pearson. Doe, d. Gill v. 97- 187 Peaceable, d Hornblower, v. Read 57. 95. 96 v. Troublesome 207 Peate r. Ougly 262 Pegge, Doe, d. Bristow v. 33 Pemble v. Sterne 20. 24 Pembroke, Lord, Doe, d. Johnson v. 256 Pendrill v. Pendrill 256 Pendock, d Mackinder, v. Mat-kinder 265 Pennant's case 144. l6l. 17."- TABLE OF CASES CITED. XXXIII Page Penphraser. Lord Lansdowne 263 Percival, Tlirustout, d. Dun- ham v Perkins, Doe, d. Burrell v. Peto v. Checy Peterson, Barnes v. Petifer, Ward v. Petty, Eccleston v. Peytoe's case Phillips, Chaworth v. , Clarke v. v. Bury -, Snow, d. Crawley v. 319 95 181 22 19 265 242 76 99 243 273 310 194 Pierson v. Tavenor Piers, Swadling v. Pierce, Roe, d. Dean of Ro- chester v. 121. 125. 194.279 - , Davis v. 248 Piggott v. Palmer 39 Pike v. Badmering 269 Pilkington, Doe, d. Hardman v. 202 Piper, Coplestone . 22 Pitcher, Rogers v. 70 Pitfall, Foster v. 40 Pleasant, d. Hayton,v. Benson 123 Plowman, Doe, d. Bradshaw v. 23 Plomer v. Hockhead 179 Podger's case 94. 96, 97 Poole v. Bentley 112 Pollard v. Luttrell 97 - , Audley v. 97 Pomfret v. Windsor 94 Pope, Goodtitle, d. Taysuin v. 326 Porch, Doe, d. O'Connel v. 205 Porter, Doe, d. Shore u. 72. 11 9. 192 - Girdlestone t . Positive, Negative, d. Par- sons v. Pott, Doe, d. Gibbon v. Potts v. Duraiit Poultney v. Holmes Powell v. Miltmrn Power, ROVST, d. Boyce v. Price, Hancock v. 331 221 33 273 164 273 "9$ 22 Page Price, Right, d. Catorv. 261. 265 Prideaux, Doe, d. Brune v. 108. 118. Pritchard, Jedkins, d. Harris v. 92. 252 Proctor v. Johnson 311 Proudfoot's case 70 Presser, Doe, d. Fishar v. 56 Proude, Green v. 96 Pugh v. Duke of Leeds 200 Puller, Hutchinson v. 24 Pulteney v. Warren 331 Pure, d. Withers, v. Sturdy 157 Purvis, Denn, d. Burghes v. 197 Purdy, Davis v. 1 99 Q. Quigley, Doe, d. Knight v. 117 R. Radcliffe v. Chaplin Raffan, Doe, d. Peacock v. Ramsbottom v. Brickhnrst Rand, Guy v. Ratclifle's case v. Tate , Loveless v. 104 258 134 272 197 68 310 310 Rawsterne, Reading v. 53 Rawlins, Dcnn, d. Brune v. 104. 108.118.273 Rawson v. Maynard 24 Reading r. Rawsterne 55 Reade, Doe, d. Burrough v. 78 , Peaceable, d. Horn- blower v. 57. 93, 96 , Roe, d. Reade v. 32 , Doe, d. Marsack v. 121 187.275 Redfern, Doe, d. Hayne v. 80 Rennett, Rex v. 67 Rex v. Bishop of London 17 XXXIV TABLK OF CASES CITED. Page Rext>. Bery 180 7'. Burgesses of Carmar- then - v. Erilli - v. Eriswell - TJ. Harris - . Mayor of Bristow - v. Old Arlesford - v. Rennet - v. Shelly - u. Stoke - v. Unitt 292 295 255 310 177 18 67 270 19 184 315 202 25 22, 23 Page Roe, d Burlton, v Roe 205 , cl. Cholmondley, v. Doe -, d. Cook, P. Doe Reynolds, Doe, v. Rhodes, Scrape v. Rice, Massey D. Rickhouse, Rochester v. Rich, Goodright, d. Balsh v. 234 , d. Cullen, v. Johnson 285 , Wilson v. , Ryal v. Richardson v. Lengridge , Bunie ??. 179 144 105 331 283 200 254 300 2G1 Riokaiby, Doe, d. Hindly v. Rider, Osborn v. Ridgway, Higham p. Rigley v. Lee Right, d. Cater, v. Price 265. , d. Dean of Wells, < Bawden 11! , d. Fisher, v. Cuthell 121 274 , d. Flower, v. Darby 130, 131. 134 , d. Lewis, v. Beard 104. 116 , Birch v. 106, 107- 128. 144. 284. 329 Rivington, Allen v. 31 Roberts v. Cook 320 , Fagg v. 290 Robinson, Millener v. 187 Rochester p. Rickhouse 23 Roe, d. Baraford, p. Hayley 122 , d. Beebee, p. Parker 258 , d. Bree, v. Lees 129 , d. Brune, v. Rawlins 273 238 , d. Crumpton, p. Minshull 144. 161 , d. Dingley, p. Sales 165 , d. Ebrall, p. Lowe 86 , d. Goatly, p. Paine 169 , d. Gregson,p. Harrison 164. 172, 173 , d. Haldane, p. Harvey 29 ,d. Hambrook, p. Doe 212. 218 , d. Henderson, p. Char- nock 131 , d. Humphreys, p. Doe 312 , d. Hunter, p. Galliers 148. 166 -, d. Hyde, p. Doe 240 -,d. Jackson, p. Ashburner 111 -, d. Jeffreys, p. Hicks 66, 67. 270. 284 -, d. Johnson, P. Ireland 285 -, d. Jordan, p. Ward 102. 108. 134 -, d Kaye, p. Soley 327 -, d. Leak, v. Doe 229 -, d. Lee, p. Ellis 204 -, d. Pellat, p. Ferrars 58 -, d. Raper, p. Lonsdale 187 -, d. Reade, p. Reade 32 -, d. Dean of Rochester, p. Pierce 121.125. 194 -, d. Saul, p. Dawson 307 -, d. Stephenson, P. Doe 201 -, d. Thorne, p. Lord 253 -, d. Truscott, p. Elliott 96 -, d. West, P. Davies 150. 154, 155, 156. 277- 282 -, d. Wrangham, p. Her- sey 190 -p. Wiggs 123,210 - p. Williamson 192 -, Doe, d. Bass p. 208 -, , d. Baddam v. 211 , , d. Bailey p. 212 TABLE OF CASES CITED. xxxv Page Roe, Doe, d. Beyer u. 31J , , d. Bird v. 207 - ... d Clarke r, ?07 s. Pagt Saint John v. Corny n 21, 22 Sales, Roe, d. Dingley v. lG5 Salisbury (Lord's) case 284 5 , d. Cobbey v. 201 , , d. Dry u. 2J4 d Feldon v 320 , , d. Ginger v. 23ti Salter, Doe, d. Toilet v. 197 d Prior r 303 pany v. 225 Salionstall, Capel v. 204 Samuel, Doe, d. Castleton v. 134. 281 Sandwich (Lord's) case 291 Savel's case 24 Hnmnnri T 94 , d. Heblethwaite v. 231 , d. Leak v. 2?9 dl pHtrpr n 29") d Morton v 43 Savage v. Dent 177- 183. 210 Saville, Goodtille, d. Lux- more v. 171 Say and Sele, (Lord), Jones v. 81 Saver, Doe, d. Leeson v. 104. 116 Scott, Doe. d. Graham v. 87 Scrape v. Rhodes 202 Scrutton, Driver, d. Scrutton v. 202 Seagrave, Sullivan r. 24 '' Russell, Webb v. 76. 17 J Rumney v. Eves 257 Ryal P. Rich 144 Shrnvin. Karl of Bath v. 3l6 -, Doe, d. Pitt t . Sl)irl-y T. Newman 132 XXXVI TABLE OF CASES CITED. Page Shires 77. Glasscock 264 Short 77 King 319. 3*2 77. Heath 339 , d. Elmes 77. King 214 Silvester, d. Law,?'. Wilson 81 Sims, Knight 77. 24 Sindercombe, Bindover 77. 21. 24 Skinner 77. Stacey 326 , Ablett 77. 198 Slade's case 72 , England, d. Syburn 77. 32. 87. 247 Slabourne 77. Bengo 296 Smales 77. Dale 55. 96 Smartle 77. Williams 62 Smartley 77. Henden 179 Smart, Wharod 77. 314 , Fenn, d. Matthews v. 94. 172 Smalley v. Neale 214 Small, d. Baker, 77. Cole 291. 297 Smith, d. Ginger, 77. Barnar- diston 305. 321 , d. Lord Stourton, v. Hurst 212 , Doe, d. Hanson 77. 270 , Lady, Doe, d. Knight 77. 232 , Doe, d. Smith v. -271 , Doe, d. Bromfield 77. 111. 119 , Knight, d. Phillips v. 84 , Throgmorton, d. Mil- ler 77. 318 r. Blackham ;.'."> 2 v. Barrett 17 77. Crabb 237 7>. Evans 261 r. Spooner 155 , Brice 7-. 265 , Davy 77. 264 , Ellis r. 261, 262 , Merrell r. 201 , Shapland 17. 81 Snapp, Archer, d. Hankey r. 326 Snell, Birdr. ' 182 Page Snow, d. Crawley, v. Phillips 273 Snowdon, Doe, d. Daggett v. 137 Soley, Roe, d. Kaye v. 327 Soulsby v. Neving 144 Spark, Weeks v. Sparkes's case 65 Sparrow, Wykes v. 24 Spence, Doe, d. Strickland v. 136. 138 Spiller, Doe 77. 125 Spooner, Smith v. 155 Spray, Denn, d. Goodwin t>. 258 Sprightley, d. Collins, v. Dunch 214 Spurrier, Denn v. 129 Stanley, Ashworth v. 22 - , Leymayne 77. 261 Stafford, Macdunoch v. 20. 22 Staple, Doe, d. Hodson v. 33. 87 Stacey, Skinner v. 326 Stapely, Morgan v. 304 Sterne, Pemble v. 20. 24 Stennett, Doe, d. Hollings- worth 77. 104. 117 Steele, Doe, d. Digby v. 141. 271 Stephens 77. Elliot 65 Stephenson, Doe, d. Walker -- 77. Croker Stoke, Rex v. Story, Windsor 77. 270. 319 200 19 57 94. 100 76 262 Stowell T>. Zouch Stockert). Barney Stonehouse v. Evelyn Strother, Goodright, d. Small- wood 77. 26. 1 95 Stone, Jurdan r. 68 Strotton, Sharrington r. 50 Stroud, Hems 77. 25. 274 Sturgeon v. Painter 110 Sturdy, Pure, d. Withers i-. 157 Sturt 77. Mellish 60 Styles, d. Redhead, v. Oakes 290 Sullivan 77. Seagrave 24 Swann, Fox v. 162. 173. 251 Swadling v. Piers 19-4 TABLE OF CASES CITED. XXXVU Page Sykes, d. Murgatroyd . H8 Symonds, White.icre, d. Boult v 143 Syrans, Dumpor r. 172 T. Tailbois, Wimbish v. 45 Tankard, Whaley v. 94 Tapner, d. Peckham, v. Mer- lott 91.96 Tate, Ratcliffe v. 310 Tavenor, Pierson v. 310 Taylor, d. Atkins, v. Horde 40. 294. 306 v. Cole 70 v. Jefts 210 v. Wilbore 298 Telling, Doe, d. Whatley v. 191 Temple, Machel v. 265 Thatcher, Hazlewood, d. Price v. 207 Thompson v. Maberly 128 , Kirkman v. 39 , Barwick, d. Mayor of Richmond v. 247 Thomas, d. Jones, v. Thomas 280 , William, d. Hughes t>. 40 v. Goodtitle 314 , Challenor v. 18 , Kesworth v. 202 Thornby, d. Hamilton, v. Fleetwood 304 Thorpe v. Fry 336 Throgmorton, d. Fairfax, v. Bentley 289 , d. Miller v. Smith 318 Thre'r v. Barton 76. 172 Thredder v. Travis 206 Thrustont, d. Dunham, v. Per- cival 319 " , Farmer, d. Miles T. 214 Page Thrustout, Goodright, d. Wad- dington v. 208 , Goodtitle, d. Mas- sa v. 212 , Goodright, d. Jones v. 211.318 , Hyde, d. Culliford v. 224 , d. Parke, v. Trou- blesome 321. 323 , d. Turner, v. Gray 202. 288. 318 } ,1. Wilson, v. Foot 301 , d. Williams, v. Holdfast 320 , v. Bedwell 289. 301. 304 Thunder, d. Weaver, v. Bel- cher 62. 104. 107. 117. 284 Thyn v. Thyn 16 Tiley v. Bailey 303 Timmins v. Rowlison 103. 125. 144. 329 Tomkins, Lowthal v. 70 Tombs, Goodtitle v. 330. 338 Toogood, Bagshaw, d. Ash- ton v. 214 Toulson, Wheeler v. 19, 20 Travis, Thredder v. 206 Treport's case 186 Tredway v. Harbert 319 Troublesome, Peaceable t>. 207 , Thrustout, d. Parke v. 321. 323 Trussell, Doe, d. Lepping- well v. 305 Trymner v. Jackson 262 Tunstall, Duckworth, d. Tubly v. 158 v. Brend 185 Tupper, d. Mercer, v. Doe 213 Turner, Bourne v. 250 , v. Barnaby 289. 301 Ty ley r. Seed l-l Tyrrell, Davenport v. .17 XXXVIII TABLE OF CASES CITED. u. Underbill, Devereux v. Unitt, Rex v. Upton v. Wells Utterson v. Vernon V. Vernon, Doe, d. Vernon v. Page 310 184 309 333 -, Utterson v. 67. 270 333 Vicars v. Haydon, d. Carrol 204 Vice, Goodright, d. Rowell v. 301. SOS Vivian, Goodright, d. Peters v. 168 Vince, Doe, d. Hinde v. 127- 136 Vowels v. Young 255, 256 w. Wade v. Cole 68 Wadman v. Calcraft 158 Waddy v. Newton 18 Wagstaff, Gulliver v. 217 Wakefield, Goodgain r. 200 Wakeley, Warren, v. 22. 25. 198 Walthew, Ward v. 40 Walton, Goodtitle v. 22 Wallis, Law v. 290 Walter, Goodtitle, d. Bern- bridge, . 195 Wandlass, Doe, d. Forster v. 155. 307 Warneford v. Warneford 261 Warren . Wakeley 22. 25. 198 , Pulteney v. 331 Warden's case 25 Ward v. Petti fer 19 v. Walthew 40 , Roe, d. Jordan v. 102. 108. 134 Watkins, Doe, d. Lord Brad- ford r. 123. 138 Page Watts, Doe, d. Martin v. 108 Watts, Doe, d. Duckett v. 92. 96 Way, Goodtitle, d. Estwickr. 110 Webb v. Russell 76. 172 Wedgwood, Halsal p. 214 Weeks v. Sparkes 255 , Eastcourt v. 65 Wells, Upton v. 309 Wellington, Danvers v. 23 Welsh, Beck, d. Hawkins v. 69 Weller, Doe, d. Collins v. 134 VN erasley, Howard v. 130 Weston, Heatherly, d. Wor- thington v. 187 West, Connor v. 21 . 25 Wharod v. Smart 314 Whaley v. Tankard 94 Wharton, Doe, d. Da Costa v. 32. 62. 66. 72. 272 Whayman, Doe, d. Chaplin v. 120 Wheeler v. Toulson 19, 20 Wheatley, Comyn v. 17 , Wright v. 20 256 337 Whitlocke v. Baker White, Denn v. , M addon, d. Baker v. 69. 120 Whiteaere, d. Boult, v. Sy- monds 143 W hitehead, Doe, d. Odiarne v. 36. 93 Whitley, Johns v. 176 Wiggs, Roer. 123.210 Wilson v. Rich 179 v. Hodges 253 , Silvester, d. Law v. 81 ,, Doe, d. Foley v. 65. 104. 284 Wilkinson, Doe, d. Brown v. 131 v. Colley 121 Wilbore, Taylor r. 298 Wilde, Doe, d. Jones r. 250 Williams, Doe, d. Forster v. 250 , d. Hughes, v. Tho- mas 40 . Smartle 9. 62 TABLE OF CASES CITED. XXXIX Page Williams, d. Johnson, v. Keen 243 , Llewelyn . 200 Wilniot, Creach p. 53 Willingale, Zouch, d. Ward v. 144 Williamson, Roe . 192 Wimbish v. Tailbois 45 Wine, Baldwin v. 26. 80 Windham, Noke v. 69. 195. 318 AN inwood, Bryan, d. Child v. 53 Windsor, Pomfret v. 94 , Storey v. 57 Winkworth v. Mann 198 Wippel, Doe, d. Bryant v. 188 Wisdom, George, d. Bradley 313 109 311 26 146 187 292 70. 272 22 297 Wise, Harrington v. Withers e. Harris Wiltingham v. Andrews Wither v. Gibson Wellington, Mantle v. Wood, Goodnght v. , Hammond v. v. Payne , Furley, d. Mayor of Can- terbury v 127. 136. 194 Wood, Fenn, d. Blanchard v. 235 Page Woodman, Doe, d. Earl of Carlisle v. 124 Wombwell, Doe, d. Baker v. 281 VVorsley, Doe, d. Holland v. 1&4 Worrall v. Harper 26 . v. Bent 296 Wright v. Wheatley 20 Wrightman, Doe, d. Matthew- son v. 125, 126 Wykes v. Sparrow 24 Wyndham v. Chetwynd 26 Y. Yates, Rudston v. Yeomans, Burbury v. Young v. Holmes , Vowels v. z. 69 23 73 255, 256 Zouch, d. Abboft, v. Parsons 69 , d. Forse, v. Forse 70 , Stowell v. 59- 94. 100 ,d. Ward,w. Willingale 144 v. Parsons 196 . TABLE OF THE CASES CITED r.V THE NOTES TO THE AMERICAN EDITION. Abeel o. Radcliff Albee w. Ward Atkyns v. Horde Baggs v. Black Balurdin v. Shore Barber v . Root Baron v. Abeel Barr v. Gratz Bartlett v. Delprat v. Harlow Bateman v. Allen Baxter v. Brown Bedford v. M'Etherron Benson v. Matsdorf Berrington v. Parkhurst Betts v. Badger Blunden v. Baugh Boyd . Graves Brad^li v. Schenck Br?ndtfr . Marshall Brant o. Livennore ?'. Ogden v. Klein Page Page 113 Brant . Dyckman 250 287 Buckminster v. Perry 286 77 Bunker . Cook 42 Burns v. Swift 49 143 Burrell v. Burrell 49 88 Byrne v. Van Hoesen 68 92 209. 335 Catlin v. Jackson 71 260 Clarke . Waite 251 251 Cluggage 0. Duncan 49 88 Cod man v. Winslow 287 77 Coles 0. Coles 88 113 Collins v. Torrey 29 102 Commonwealth v. Dudley 47 336 19 w \J\J 98 Cortelyou v Van Brundt 19- 287 278 42 Deconche v, Savetier 53 48 Demarest v. Wynkoop 59.61 116 Dickinson v. Barber 286 58 Ditzads v. Butler 202 29. 249 Doe v. Hull 291 47 29 v. regge 275 Duffield v. Stiles 335 TABLE OF CASES CITED. zli Ebert v. Wood Erskine w. Townsend Fenn v. Wood Flint v. Sheldon Forster v. Mellen Fowle v. Bigelow Frier u. Jackson Galloway v. Ogle Ganvood v. Dennis Gerrish v. Bearce Goodright v. Forester Goodwin v. Richardson Gould v. Newman Hallett v. Wylie Hatch 0. Hatch Hathorn v. King Hawn v. Norris Heister . Fortner Higginson . Mein Hill v. Payson Hitchcock #. Harrington Hyatt v. Wood Ilderton v. Atkinson Inches v. Leonard Jackson v. Agan Page 48 63 231 288 30 288 245 30 260 288 42 63 43 113 264 286 32 71 58 64. 251 29 31 251 58 163 102.115 30 263. 287 122 202 249. 251 71 202 72 259 255 48. 287 105. 187 163. 254 105 18 F Page Jackson v. Bush 30 v. Bushnell 305 _ p Campbell 49 .. ,. Pnrv 5/10 v Catlin 71 _ v Chase 105 v. Cooley 254 . v. Cooper 299 ..... p Crafts 63 6 1 v. Creal & Kellogg 30. 49. 55 v. Cris 269 v. Croy 58. 72. 287 v. Crysler 91 v. Davenport 245 v. Davis 63. 71. 72 WDplinrPu A'-t 48 71 v. Deleng 89 v. Denniston 88. 236. 267 w* DC Walts 29 v. Deyo 32. 105. 1 15 v. Dickinson 71 v. Dieffendorf 77 . Ditz 202 v. Dubois 63 v. Durlaud 267 WK'nwf r>r O \fr OCT* v. Ayres . Babcock 231. v. Baker v. Bancraft ' v. Bard 58. v. Bartlett 1 v. Belknap ' v. Benedict v. Blanshan v. Boneham v. Bowen v. Bradt v. Brownell 116. v. Bryan . Buel r ner Jcoy v. Frost 251 v. Garnsey 30 - v- Graham 30. 54 v. Green 105 v. Hakes 34. 159 v. Hallenbach 251 v. Halloway 263 v. Harder 30, 31, 32 170 v. Hart 288 . ... tl HncKrniirb TO 9fi? 1 1 > v. Haviland 49. 98. 306 xlii TABLE OF CASES CITED. Page Jackson v. Hazen 31. 17. 299 T Iliiuimn 29 Page Jackson v. Sclover 189 Srntt 7" i* Hocrebooni 288 .... n Smrt 38 58 v. Hudson 32 v. Hull 63 IT Tnv 4R v. Seelye 31 v. Sellick 49 f, Slnffpr 71 r. Killenbach 113 r> Kinrrslev 1] r r 78 v. Sharp 48. 58 n Ki^qplhrnrh 94Q f? Strlnnir 1 RR v. Kniffen 2G2. 269 . . 7! Kntifh O r. Silvernail 164. 166 it Sinsnn 32 r. Lamson 105. 268 __. _ n Tjirrnwnv 5"iO v. Smith 47. 49- 55. 89. 220 v. Stanley 287 WT nu/tnn 9R7 w. Lunn 98 tt Mil'm 9f> 1 v. Stevens 38 .. .._ r Stilf<5 O7 "ll 25 v M'Call ?49. 9?? 231. 239. 303. 312 r u Sfnnn 33fi 11 IM'Fvnv ?31 t'. M'Leod 30. 102 y. Minkler 63 v. Moore 49. 59 ^. Miirnliir 988 v. Striker 71 0. Thomas 58 v. Todd 32. 48. 268 lj JVlvPl'S v Tvlrr 115 . Niven 116 v. O'Douaghy 88 v Ogden 189. 250 ' P'irkpr ^S8 v. Van Bergen 307 WVonrlArhfVflpn T2 v Van Dusen 251. 260 r Van Slvck 3 ,. PJorrp 32 r Vischcr 00 "4 u Potter 2^3 f Vosburgh 9 30 249 ?? Pratt P f>3 7 1 v. Raymond 43 v. Reynolds 30. 202 v. Rich 163. 246 v. Richmond 202 n Rirhtmvpr 77 7& . Waters 47, 48 v. Wheat 48 f Wheeler 119 246 P Whit ford 29 30 r Whitlock 4? Rnhini f9 P Willard 64 v Rogers 42 43 113 17' P Wilscy 105 116 , r Root 51 208 ^^ r \Vil-on 159 y. Rosevelt r. Rowan Il6 r. Rnmsey 250. 269 r. Sample 115. 186 r. Schoonmnker 42. 48. 9 r. Scluitz 165 v. Wood 63 p Woods (57 n 6 ._ . t Woodward 67 ?99 Johnson r. Allen 88 Kellogg r. Beers 64 TABLE OF CASES CITED. xliii Kerable v. Fitch King v. King Lane w. Reynard Leland . Stone Livingston . Tenbroeck Loker v. Haynes Mann v. Mann Mathers v. Akewright M'Clung v. Ross M'Ferran v. Powers Menhall w. Wright Mitchell v. MiU'hell Murray v. Gouverneur Gates u. Brydon Paine v. M'Intier 249. Penrose v. Griffith People v. Leonard v. Bradt . Nelson Perley y. Chandler Peters v. Coudron Peytoe's case Phelps v. Hartwell Phillips w. Covert Poole v. Richardson Poor v. Robinson Porter v. Hill v. Millet Powell v. Waters Powers v. M'Ferran Revere . Leonard Reynolds (ex parte) Right r. Beard Page Page 210 Saltonstall v. White 178 281 Sedgwick v, Hallenbach 29 Sellick v. Adams 89 30 Shepard v. Rogers 88,89 288 Simpson v. Ammons 63 287 Small v. Proctor 43 251 Smartel v. Williams 43 Smith v. Burtis 30. 42. 48. 55 287 V \C\r\Cf 33 32 v. Lorillard 76 88 252 v Yandusen 2*>Q 29 Smithwick r. Jordan **/;/ 43.47 293 Stewart v. Doughty 116 335 v. Kip 252 Storer v. Batson 252 88 v. Freeman 287 287, 288 Thornton v. Dixon 88 275 113 31 Townsend v. Wild 287 189 Truesdale v. Jefleries 77 70 19 Van Alen v. Rogers 189. 281 26o 246 Wallace v. Duffield 53 249 286 Waring v. Warren 249 105 Watson v. Boylston 287 286 . Bailey 249 43 Weston . Hunt 43 88 Wickham v. Conklin 48 29 Williams v. Peyton 377 268 v. Jackson 47 30 Wellington v. Gale 29 Wilson v. Boerem 255 287 Wood v. Wood 178 312 Woodard . Paine 265 105 Woods v. Lane 31.77 ERRATA. Page 47, ui notts, line 23, for " Odgeri" read " Ogden." 64, in note*, line 11, for " Before" read " Under." 166, in no/w, line 6, for " lessor'* consent" reao "./?< offering to Icstor iht right of pre-emption." 189, in notes, line 17, for " Men" read " Alen." TREATISE ON THE CHAPTER L OF THE ORIGIN PROGRESS AND NATURE OF THE ACTIOIS OF EJECTMENT. THE action of ejectment is a fictitious mode of legal proceeding, by which possessory titles to corporeal heredi- taments and tithes, may be tried, and possession obtained, without the process of a real action. The alterations which from time to time have taken place, in the nature and uses of the action of ejectment, form a remarkable and important branch of the changes effected in our general system of remedial law. From being a mere action of trespass to recover the damages sustained by a lessee for years, when ousted of his posses- sion, it has gradually usurped the place of all the ancient remedies for the recovery of possessory rights to real pro- perty, and is at the present time the universal mode of trying possessory titles. The alterations have, however, been effected by the most simple and natural means ; and in tracing the remedy through its several gradations, it will be found continually moulding itself to the condition of the t OF THE ORIGIN OF THE times, and extending its uses and powers, as the progress of civil society rendered necessary or convenient. In the earlier periods of our history, estates for years, according to their present import, were unknown. Under the feudal system, war was the primary object even of legis- lation ; and it is therefore by no means surprising that the interests of the inferior tenantry were in those times dis- regarded, and that the remedies for the recovery of lands were altogether confined to freehold titles, vested in the superior landholders. The lords, indeed, seldom permitted their vassals to en- joy any interest in the lands they occupied, which could render them independent of their will ; and, even when they did grant them a right to the possession for a determi- nate period, as a stimulus to increase their industry, such grants were not considered as transferring to the grantee any title to the land, but merely as agreements or contracts between the lord and his vassal. The old writ of covenant, adapted at that time to the recovery of the term, as well as of damages, was the only remedy to which the tenants were entitled upon these leases. But this writ could only extend to cases in which there was a breach of the original contract, and the tenant was therefore altogether without means of redress, when dispossessed of his land by the act of a stranger, not claiming under the grantor. Great difficulties also attended the pro- ceedings upon the writ of covenant. It only lay between the immediate parties to the grant ; and, as it frequently happened that the tenant was dispossessed by a person claiming under a subsequent feoffment from his grantor, and not by the grantor himself, he was then, notwithstand- ACTION OF EJECTMENT. 3 ing the breach of the original contract, enabled to recover only damages for the injury he had sustained, but had no means of regaining possession of the land from which he had been ousted.(a) So regardless, however, was the law during the first ages after the Conquest, of grants of this nature, that until the time of King Henry III. this writ of covenant remained the sole remedy for the grantee, even upon a breach of the grant. In that reign the first symptoms of a more enlighten- ed policy appeared ; and by the wisdom of the court and council, a full remedy was provided for a termor, who was dispossessed of his land, against all persons whatsoever, claiming under the title of the grantor.(a) The writ invented for this purpose was, according to Bracton,(a) called the writ of quare ejecit infra terminum, and required the defendant to shew, wherefore he deforced the plaintiff of certain lands, which A. had demised to him for a term then unexpired, within which term the said A. sold the lands to the defendant, by reason of which sale the defendant ejected the plaintiff therefrom. The language, indeed, used by Bracton,(a) when speak- ing of this writ, may at first sight induce an opinion, that it was intended as a general remedy against all persons, even strangers, who ejected a lessee ; and this interpretation has been adopted by a learned writer on the English law.(6) On a minute investigation, however, it will appear, that Bracton meant only to include the grantor himself, or per- sons claiming under him. One passage certainly militates against this conclusion, " Si autcm alius quam qui tradidit fjecerit, si hoc fecerit cum AUTORITATE ct VOLUNTATE tra- (a) Bracton, b. 4. f. 220. (6) Reeves Eng. Law, Vol. I. p. 3-1 1 . 4 OF THE ORIGIN OF THE dentis, uterrfue tenelur hoc judltio, umis propter factnm, et alius propter autoritatem. Si autem sine VOLUNTATE, tune tenetur ejector utrique, tarn domino proprietors, quam fir- mario : frrmario per istud breve, domino proprietors per as- sisam norte disseysina, ut units rehabeat tcrminum cum dam- nis, et alius liberum tenementum suum sine damnis." But the difficulty is removed by the next sentence, in which he says, " Si autem dominus proprietatis tenementum ad Jirmam traditum alicui dederit in dominico tenendum, scysi- nam eifacere poterit SALVO FIRMARIO TERMING suo." And it seems, therefore, that in the latter clause of the passage first above cited, particularly from the omission of the word autoritate in it, Bracton only alluded to cases where the grantor had enfeoffed another, without intending thereby to injure his grantee, and such feoffee afterwards entered upon him. This interpretation is also most consistent with the spirit of the times in which Bracton wrote. It was then held that a man could not enter m et armis into his own freehold, and the writ of quare ejecit infra termmuni is not a writ of trespass vi et armis, which, if it had lain against those not having a title to the freehold, it naturally would have been. The old authorities(c) also, when des- (c) Thus, in Hil. Term, 3 Edward I. other writ but his writ of covenant ; " In quare ejecit plaintiff shnll recover and although by the law. a special his term and damages by him sustain- writ of quare. ejecil is ordered against ed by reason of the sale." (Stat. Ab. a stranger, a feoffee, nevertheless the tit. qua. ejec.) In the Reg Brev. (p. lessee is not ousted of his writ of cove- 227.) " Full hoc breve inreutum per nant against the lessor." This latter dtscretum viritm H'hilfielmum de Mer- doctrine is exactly that laid down in ton ul tenninariut recuperet calalla sua Bracton. So, also, per Choke, J. (21 terms FEOFFATUM." In a case in Hil. Edw. IV. 10. 30.) " Quarc ejecit, fyc. Term, 46 Edward III. 4. 12. per Ful- lieth where one is in by title, ejectione thorpe, Justice. " If a stranger oust a Jirnuz where one is by wrong ;" and lessee by reason of nfeoffment, in that per totnin curiam (19 Henry VI. 56. case he is put to his action upon the 19.) " If a man lease for years, and writ of quare ejecil ." and in the game sell to F who ousts the termor, the les- case, per Finchden, J. " In such case, see shall have a quare ejecil, and re* ai the common law, the lessee had no cover his term and damages." ACTION OF EJECTMENT. 5 cribing the nature and effect of this writ, invariably speak of it, as lying in those cases only where the ejector claims title under the grantor. A sale of the lands to the ejector is also stated in the body of the writ. And, indeed, if the interpretation here contended for be incorrect, it seems quite unaccountable, that, more than half a century after the time of Bracton, a new writ, namely, the writ of ejec- tione Jirmce, which only gave the plaintiff damages, and did not restore the term, should have been invented for lessees against strangers, when one so much more beneficial was already in existence. The writ of quart ejecit might be drawn either as a prct- etpe, or*a si tefecerit securwn, and, when first invented, the prcecipe was thought the better mode of proceeding, though in process of time, the latter became more generally used. It is, perhaps, from this circumstance that Fitzherbert(d) has considered the invention of the writ to be posterior to the statute of Westminster the second. (e) The plaintiff, by this writ, as by the old writ of cove- nant, recovered both his term and damages, if the term were unexpired, or his damages only in case of its expira- (rf) The inaccuracy of Fitzherbert, also, the same reasons are given for it* when speaking of this writ, is remark- origin. The inaccuracy is evident also able. He considers its invention as from another circumstance \\.\iiih posterior to the statute of Westminster DE MERTON, called by Fitzherbert 2. (13. Edw. I.) and as intended to re- It'IlUnm fie Moreton, and in the Reg. mecly a partial evil, occasioned by the Brev. H'illiam de .Merlon, (the inven- writ of ejectione firmer . (F. N.B. 458.) tor of the writ,) was Chancellor in Bracton, however, who wrote in the the reign of Henry III. (I)ugdale's reign of Henry HI. speaks of the writ Chron.) and dird in the sixth year of as in use in his time, and as having Edward I. (Matt. \Yestmon. p. 366.) been invented to remedy the income- seven years before the statute of West- niences attendant on the old writ of minster 2. w as enacted, covenant. lu the Reg. Brv. (227.) (e) F. N. B. 438. O OF THE ORIGIN OF THE tion before the judgment ; but the great advantage he derived from it, was the power of proceeding against third persons, as well as against the original grantor. Notwithstanding this favourable alteration, the farmer was still without remedy when dispossessed by a mere stranger, not claiming under his grantor. But an ouster by a stranger could then rarely happen ; and if at any time the vassal was so dispossessed, he would throw himself on the protection of his lessor, abandon his own claim, and leave the lord to recover by a real action both the freehold and possession. In process of time, however, the vassal demanded a re- medy for himself, and in the reign of King Edward II. or in the early part of that of Edward lll.(f) a writ was in- vented, which gave a lessee for years a remedy (though in some respects an imperfect one) against all persons whatsoever, who ousted him of his term ; excepting, in- deed, where the grantor himself ejected his lessee, and subsequently enfeoffed another, in which case, the old writ of quare ejecit was resorted to. This new writ was a writ of trespass in its nature. The process upon it, as upon all other writs of trespass, was by attachment, distress, and process of outlawry. It called upon the defendant to show, wherefore, with force and arms, he entered upon certain lands which had been de- mised to the plaintiff for a term then unexpired, and eject- ed him from the possession thereof; and comprised all cases, with the single exception already mentioned, in (/) The first recorded instance of 44th year of Edward III. (Trin. 44 an action of ejeclione fintuc, is in the Edw. III. 22. 26.) ACTION OF EJECTMENT. 7 which the second lessee, coming into possession by means of a title, could not be said to be a trespasser. Even the grantor was liable to be sued upon this new writ, notwith- standing the old doctrine, that a man could not enter vi ct armis into his own freehold. (g) As, however, the plaintiff did not possess a freehold interest, his title to the lands was only so far acknowledged in this action, as to give him damages for the injury he had sustained, but not to restore to him the possession of his term. It is upon this writ, though apparently so dissimilar from the present practice, that the modern remedy by eject- ment is founded* Whilst the feudal system continued in its vigour, and es- tates for years retained their original character, but little inconvenience resulted to tenants from this imperfect re- medy. When, however, the feudal policy declined, and agriculture became an object of legislative regard, the va- lue and importance of estates of this nature considerably increased, and it was necessary to afford to lessees for years a more effectual protection. It then became the practice for leaseholders, when disturbed in their possessions, to apply to courts of equity for redress, and to prosecute suits against the lessor himself, to obtain a specific per- formance of the grant, or against strangers for perpetual injunctions to quiet the possession ; and these courts would then compel a restitution of the land itself to the party im- mediately injured. (A) The courts of common law soon afterwards adopted this method of rendering substantial justice : not indeed by the (g) F. N. B. 606, (A) Gilb. Eject, p. 2. 8 OF THF. ORIGIN OF THE invention of a new writ, which perhaps would have beei the best and most prudent method, but by adapting the one already in existence to the circumstances of the times ; and introducing, in the prosecution of a writ of ejectment, a species of remedy neither warranted by the original writ, nor demanded by the declaration, namely, a judgment to recover the term, and a writ of possession thereupon. It is singular, that neither the causes which led to this important change, nor the principles upon which it was founded, are recorded in any of the legal authorities of those times. It is difficult, if not impossible, to ascertain with accuracy the precise period when the alteration itself took place ; although it certainly must have been made be- tween the years 1455 and 1499, since, in the former year, it is said by one of the judges, (i) that damages only can be recovered in ejectment ; and an entry of a judgment is still extant, given in the latter of those years, that the plain- tiff in ejectment shall recover both his damages and big term.(A-) It is said, indeed, in argument as early as the year 1458, that the term may be recovered in ejectment, but no reason is assigned for the assertion, nor is any de- cision upon the point on record until the time of the entry already mentioned. (I) But, whatever might be the causes which occasioned this alteration, the effects they produced were highly im- portant. A new efficacy was given to the action of eject- ment, the old real actions fell into disuse, and in the subse- (t) Per Choke, J. Mich. 33 Hen. (0 Brooke's Ab. tit. Quarc ejecil, VI 42. 19. folio 167. (k) Kast. Eut. 253, (a) ACTION OP EJECTMENT. 9 periods of our history, the action of ejectment became the regular mode of proceeding for the trial of possessory titles. That an action of ejectment, by means of this alteration in its judgment, might restore termors to possession who had been actually ejected from their lands, is sufficiently obvious ; but it is not, perhaps, so evident how the same pro- ceeding could be applicable to a disputed title of freehold> or why, as soon after happened, the freeholder should have adopted this novel remedy. No report of the case in which this bold experiment was first made is extant ; but from the innumerable difficulties which attend real actions, it is not surprising that the freeholder should take advan- tage of any fiction which enabled him to avoid them ; and as the Court of Common Pleas possessed an exclusive right of judicature in matters of real property, it is probable that the experiment originated in the Court of King's Bench, as an indirect method of giving to that court a concurrent jurisdiction with the Common Pleas. But, however this may be, the experiment succeeded, and the uses of the action, as well as its nature, were changed. When first the remedy was applied to the trial of disput- ed titles, the proceedings were simple and regular, differ- ing but little from those previously in use, when an eject- ment was brought to recover the damages of an actual trespass. The right to the freehold could only be deter- mined in an indirect manner. It was a term which was to be recovered by the judgment in the action, and it was therefore necessary that a term should be created ; and as the injury complained of in the writ was the loss of the possession, it was also necessary that the person to whom the term was given, should be ejected from the lands. 2 10 OF THE ORIGIN OF THE In order to obtain the first of these requisites, namely, u term, the party claiming title entered upon the disputed premises, accompanied by another person, to whom, whilst on the lands, he sealed and delivered a lease for years. This actual entry was absolutely necessary ; for, according to the old law of maintenance, it was a penal offence to convey a title to another, when the grantor him- self was not in possession. And, indeed, it was at first doubted, whether this nominal possession, taken only for the purpose of trying the title, was sufficient to excuse him from the penalties of that offence. (m) It is from the necessity of this entry, also, that the re- medy by ejectment is confined to cases in which the claim- ant has a right to the possession. When only a right of property, or a right of action, remained to him, the entry would be illegal, and consequently not sufficient to enable the party making it to convey a title to his lessee : and as the principles of the action still remain the same, although its proceedings are changed, the right to make an entry continues to be requisite, though the entry itself is no longer necessary. The lessee of the claimant, having acquired a right to the possession, by means of the lease already mentioned, remained upon the land, and then the person who came next upon the freehold, animo possidendi, of according to the old authorities, even by chance,(n) was accounted an ejector of the lessee, and a trespasser on his possession. A writ of trespass and ejectment was then served upon the ejector by the lessee. The cause regularly proceeded to trial as in the common action of trespass ; and as the K>- (m) 1 Cb. Rep. Appnd. 29 (n) 1 Lil. Prac. Reg. 679. ACTION OF EJECTMENT. 11 see's claim could only be founded upon the title of his lessor, it was necessary to prove the lessor's interest in the land, to enable the plainlih r (the lessee) to obtain a verdict. The claimant's title was thus indirectly determined ; and, al- though the writ of possession must of course have been issued in the plaintiff's name, and not in his own, yet as the plaintiff had prosecuted the suit only as the lessor's friend, he would immediately give up to him the possession of the lands. In the infancy of the experiment, this mode of proceed- ing could be attended with no ill consequences. As the party previously in possession, must, in contemplation of the law, be upon the lands, and certainly animo possidendi, the friend of the claimant was allowed to consider him as an ejector, and make him the defendant in the action. When, however, the remedy became more generally used, this simple method was found to be productive of consider- able evil. It was easy for the claimant to conceal the proceedings from the person in possession, and to procure a second friend to enter upon the lands, and eject his les- see immediately after the execution and delivery of the lease. The lessee would then commence his suit against this ejector, and the party in possession might consequently be ousted of his lands, without any opportunity of defend- ing his title. To check this evil, a rule of court was made, forbidding a plaintiff in ejectment to proceed against such third person, without giving a previous notice of the pro- ceedings to the party in possession ; and it was the prac- tice for such party, on the receipt of this notice, if he had any title to the lands, to apply to the court for permission to defend the action ; which application was uniformly granted, upon his undertaking to indemnify the defendant (the third person) from the expenses of the suit. The 12 OF THE OKIGIN OF THE action, however, proceeded in the name of such defendant, though the person in possession was permitted at the trial to give evidence of his own title. A considerable alteration in the manner of proceeding in the action was occasioned by this rule, although it was only intended to remedy a particular evil. It became the general practice to have the lessee ejected by some third person, since called the casual ejector, and to give the regular notice to the person in possession, instead of mak- ing him, as before, the trespasser and defendant. A rea- sonable time was allowed by the courts, for the person in possession, after the receipt of the notice, to make his ap- plication for leave to defend the action, and, if he neglect- ed to do so, the suit proceeded against the casual ejector, as if no notice had been necessary. The time when this rule was made is unknown, but as the evil it was intended to remove must soon have been discovered, it probably was adopted shortly after the reme- dy grew into general use.(o) It seems, also, to have been the first instance in which the courts interfered in the prac- tice of the action, and is therefore remarkable as the foun- dation of the fictitious system by which it is now conducted. In this state, with the exception of a few practical regu- lations, not necessary to be here noticed, the action of ejectment continued until the time of the Commonwealth. Much trouble and inconvenience, however, attended the observance of the different formalities. If several persons were in possession of the disputed lands, it was necessary to execute separate leases upon the premises of the dif- (o) Fairc-laim, d. Fowler, v. Shamiitle, Burr. 1290 1297- ACTION OF EJECTMENT. IS lerent tenants, and to commence separate actions upon the several leases.(p) Difficulties also attended the making of entries, and the action of ejectment had, by this time, grown into such general use, as to make these inconve- niences sensibly felt. A remedy, however, was discovered for them by Lord Chief Justice Rolle, who presided in the Court of Upper Bench during the Protectorate ; and a method of proceeding in ejectment was invented by him, which at once superseded the ancient practice, and has by degrees become fully adapted to the modern uses of the action, (q) By the new system, all the forms, which we have been describing, are dispensed with. No lease is sealed, no en- try or ouster really made ; the plaintiff and defendant in the suit are merely fictitious names, and in fact all those preli- minaries are now only feigned, which the ancient practice required to be actually complied with. ^ An inquiry into the numerous regulations which have been made for the improvement of the modern practice, must be reserved for a future part of this work ; but it may be useful to give in this place a brief outline of the system, although a detailed account will be hereafter ne- cessary. * -; -m^. ;j woiic! }*i- A., the person claiming title, delivers to #., the person in possession, a declaration in ejectment, in which C. and D., two fictitious persons, are made respectively plaintiff and defendant ; and in which C. states a fictitious demise of the lands in question from A. to himself for a term of (p) Co. Litt. 252. Argoll v. Che- (9) Styles, Prac. Reg. 108. (cd. ney t Palm. 402. 1667.) 14 OF THE ORIGIN OF THE years, and complains of an ouster from them by D. during its continuance. To this declaration is annexed a notice, supposed to be written and signed by D., informing B. of the proceedings, and advising him to apply to the court for permission to be made defendant in his place, as he, having no title, shall leave the suit undefended. Upon the receipt of this declaration, if B. do not apply within a limited time to be made defendant, he is supposed to have no title to the premises ; and upon an affidavit that a declaration has been regularly served upon him, the court will order judg- ment to be entered against D., the casual ejector, and pos- session of the lands will be given to .#., the party claiming title. When, however, B. applies, pursuant to the notice, to defend the action, the courts annex certain conditions to the privilege. Four things are necessary to enable a per- son to support an ejectment, namely, title, lease, entry, and ouster; and as the three latter are only feigned in the modern practice, C. (the plaintiff) would be nonsuited at the trial if he were obliged to prove them. The courts, therefore, compel B. if made defendant, to enter into a rule, generally termed the consent-rule, by which he undertakes, that at the trial he will confess the lease, entry, and ouster, to have been regularly made, and rely solely upon the merits of hirf title ; and, lest at the trial he should break this engagement, another condition is also added, that in such case he shall pay the costs of the suit, and shall allow judgment to be entered against D., the casual ejector. These conditions being complied with, the declaration is altered, by making B. the defendant instead of Z)., and the cause proceeds to trial in the same manner as in other actions. The advantages resulting from this method are obvious : the claimant is exempted from the observance of useless ACTION OF EJECTMENT. 15 forms, and the tenant admits nothing which can prejudice the real merits of the case. It could not, indeed, be expected that a change so exten- sive, should, in the first instance, be entirely free from defects, nor that it would not, like other innovations, occa- sion some inconvenience when first introduced. For a few years after its invention, the courts seem occasionally to have been confused between the ancient and modern sys- tems, and not to have established, so distinctly as might have been desired, the principles which were to regulate the proceedings they had so newly adopted. The action has however, now attained a considerable degree of perfection. Its principles are clearly understood, and its practice is re- duced to a regular and settled system. The legislature has frequently interfered to correct its deficiencies. The courts continue to regard it with great liberality ; and the remedy by ejectment is, at the present time, a most safe and expedi- tious method of trying possessory titles, unembarrassed by the difficulties attendant on real actions, and well adapted to the purposes of substantial justice. 16 CHAPTER II. OF WHAT THINGS AN EJECTMENT WILL LIE, AND HOW THEY ARE TO BE DESCRIBED. BY the common law, an ejectment will not lie for any thing, whereon an entry cannot be made, or of which the sheriff cannot deliver possession; or, in other words, it is only maintainable for corporeal hereditaments. Thus, an ejectment will not lie for a rent, an advowson, a common in gross, or pur cause de vicinage, or any other thing which passes only by grant. Tithes, indeed, though an in- corporeal inheritance, may be recovered by this action, but the right of maintaining an ejectment for them, does not arise from the common law, but is given by the provisions of the statute 32 Hen. VIII. c. 7. It was formerly holden that an ejectment did not lie for a chapel, though a corporeal hereditament, because it was res sacra, and, therefore, not demisable ; but this doctrine js now exploded, though, in point of form, a chapel should still be demanded as a messuage.(r) A church may be also recovered in an ejectment when so demanded ;(s) and it is {r) Harpwr's case, 11 Co. B5, (b). f) Hillingsicorth r. Brewster. Salk. Tfiyn v. Thyn, Styles, 101. Doc. Plac. 26<5. flM. Or WHAT THINGS AN EJECTMENT WILL LIE. 17 In one case said in argument, that after collation, ejectment will lie for a prebcndal stall. (/) A common, appendant or appurtenant, may be recovered in an ejectment, brought for the lands to which it is appen- dant or appurtenant, provided such right of common l>e mentioned in the description of the premises ; because, he who has possession of the land, has alr-o possession of the common, and the sheriff, by giving possession of the one, executes the writ as to the other. But it may be prudent to state in the description, that the common so claimed is a common uppendant or appurtenant, although it has been held after verdict, that an ejectment for lands, and albO for K common of pasture," generally is sutficient.(M) An ejectment will also lie for a boilary of salt, although by the grant of a boilary of salt, the grantee is only entitled to a certain proportion of the number of backets of .-alt water drawn out of a particular salt-water well ; for by the grant of a boilary of salt, the soil shall pass, inasmuch as it ia the whole profit of the soil.(v) Upon the same principle an ejectment may be maintained for a coal mine ; for it is not to be considered as a bare profit apprender, but as comprehending the ground or soil itself, which may be delivered in execution ; and though a man in iv have a right to the mine without any title to the soil, yet the mine being fixed in a certain place, the sheriff has a thing certain before him, of which he can deliver posses* siou.(w) CO The Km? v. The Bithop of ban- (r) Smith v. Barrett, Sid. 161. S. C, don, MViU II. 14. 1 Ler. 114. Co. Lin. 4, (6). (u) /.TArrv. //<,r, Cas. Temp. Hard. () rmy/i v. kint.to, Cm. Jac. 150. 127. JfHnumv.Uoldmjiftu^Stna.64. C'amyn r. H'hcaliy, iNoy, 121. 1 Itf OP WHAT THINGS In the old cases it is holdcn, that an ejectment will not lie for a fishery, because it is only a profit apprender ;(x) but it is said by Ashhurst, J., in the case of The King v. the Inhabitants of Old Arlesford,(y) " there is no doubt but that a fishery is a tenement ; trespass will lie for an injury to it, and it may be recovered in ejectment." But an ejectment will not lie for a water-course, or rivu- let, though its name be mentioned, because it is impossible to give execution of a thing which is transient, and always running.[l] When, however, the ground over which the rivulet runs, is the property of the claimant, the rivulet may be recovered, by laying the action for " so many acres of land covered with water."(r) An ejectment may be maintained for a pool, or pit of water, because those words comprehend both land and water.(a) The owner of the soil may maintain an ejectment for land, which is part of the king's highway ; because, though the public have a right to pass over it, yet the freehold and all the profits belong to the owner. He must, however, (x) Molinenux v. Molintaux, Cro. (y) 1 T. R. 858. Jac. 144. Herbert v. Laughlyn, Cro. () Ckallenor v. Thomas, Yelv. 148. Car. 492. Waddy v. JYewton, 8 Mod. (a) Ibid. Co. Litt. 6, (6). 275277. [1] If a grantor reserve the right of erecting a mill-dam for a certain distance on a creek, "and to occupy and possess the premises," without hin- drance or molestation from the grantee, or his heirs, he has such an inte- rest in the land reserved as will support ejectment. Jackson v. Buel, 9 Johnson, 298. In this case the Court say, "wherever a right of entry exists, and the interest is tangible, so that possession can be delivered, an ejectment will lie." But the grant of a privilege to erect a machine and building on land, without defining the place where they are to be erected, or the quantity of ground which is to be occupied, does not, without actual entry or location, confer such a right, as to support ejectment. Jackson v. May, 16 Johnson, 184. AN EJECTMENT WILL LIE. 19 . recover the land, and the sheriff give possession of it, sub- ject to the public easement.(6) [2] An ejectment will lie pro prima tonsura, that is to say, if a man has a grant of the first grass which grows on the land every year, he may maintain ejectment against him who withholds it from him.(c) So also a demise of the hay-grass and after-math is sufficient to support an ejectment.(J) And the principle seems to be this, that the parties in these cases, being entitled to all the profits of the land for the time being, are entitled also for the same time to the land itself; and no man can enter thereon, whilst they are so en* titled, without being a trespasser. But the ejectment should not be brought for the land generally, but for the first grass or after-math thereof as the case may be ; although where the demise was for so many acres of pasture land, it was held sufficient for the lessor of the plaintiff, in the first in- stance, to show that he was entitled to the prima tonsura thereof, because the first grass being the most signal profit, the freehold of the land shall be esteemed to be in him who has it, until the contrary is shown. (e) A right to the herbage will also be sufficient to support an ejectment, because, he who has a grant of the herbage, has a particular interest in the soil, although by such grant the (6) Goodtitle, d. Clutter, Y. Alktr, (d) Wheeler v. Toulson, Hard. 330. Burr. 133. 146. (e) Rex r. Inhabitant* of Stoke, 2 T. (c) Ward v. Pttifer, Cro. Car. 362. R. 451. [2] The owner of land, over which a highway is laid out, may use the land in any manner, not inconsistent with the public right or easement, and may maintain ejectment for it. Cortelyou r. Van Brundt, 2 Johnson, 357. Jackson r. llathaieari, 15 Johnson, 447. Perley v. Chandler, 6 Man. Rep. 454. Com- monwcaltti v. Pelcrt, 2 Mas*. Rep. 125. 20 OF WHAT THINGS soil itself does not pass. But the ejectment should be for the herbage of the land, and not for the land itself.(/) In like manner an ejectment will lie for the pasture of a hundred sheep. (g) But a right to the pannage is not enough, because pan- nage is only the mast which falls from the trees, and not part of the soil itself.(A) With respect to the manner in which the disputed pre- mises should be described in an ejectment, no determinate rule exists ; nor is it easy to discover from the adjudged Cases, any principle which can guide us on the subject. It is very frequently said, in general terms, that the descrip- tion shall be sufficiently certain ; but the degree of certainty required, particularly in the more ancient cases, seems to depend upon caprice rather than principle. In the earlier stages of the remedy, when ejectments were compared to real actions, and arguments were drawn from analogy with them, a practice which obtained until after the reign of James I., much greater certainty was required than is now necessary ; and it appears, that when the action was first invented, as much certainty was requisite as in a pracipe quod rcddat.(i) The courts, indeed, soon relaxed this severity, and allowed many descriptions to be sufficient in an ejectment, which would have been held too uncertain in a prcecipc ; as, for instance, an ejectment for a hop-yard was held good ; so also for an orchard, though in a praripe it should be demanded as a garden ;(.;) yet, notwithstanding (/) Whttlcr v. Tnitfuon, Hard. 330. (i) Afaedunoch v. Sta/ord, 2. Roll- () /?ony. 2 !)!. 95. Rep. 166. (A) Peniblcv. Sterne, 1 Lev. 212,3. (j) Wright v. Whcatley, Noy, 37. S. 8, C. 1 Sid. 416, C. Cro. Elisr.. 864. Royxlon v. Eedettan, Cro. Jac. 654. S. C. Palm. 337. i AN EJECTMENT WILL LIE. this alteration, it was considered an established principle, until within the last fifty years, that the description must be so certain as to enable the sheriff exactly to know, without any information from the lessor of the plaintiff, of what to deliver possession. (&) Amongst other salutary regulations, however, which the wisdom of modern times has introduced into this action, the abolition of the above-mentioned maxim may be reckoned ; and it is now the practice for the sheriff to deliver possession of the premises recovered, ac- cording to the directions of the claimant, who therein acts at his own peril. (/) Few cases are to be found in the modern books, wherein pointa respecting the certainty of description have arisen, uut the authority of the old e;i-e- i- \cry doubtful. The degree of cert;iinty formerly required was much greater than is now necessary, and it is not improbable that many of the old decisions would be overruled, should they again come under the consideration of the courts. (m) Lands will be sufficiently described by the provincial terms of the counties in which they lie. Thus, an eject- ment may be maintained for " five acres of alder carr" in Norfolk : alder carr, in that county, signifying land covered with alders. So, also, in, Suffolk, for a beast gate ; and in Yorkshire, for cattle gates. (n) The same principle applies to ejectments in Ireland, and terms used in that country will be sufficiently certain, when writs of error are brought therefrom in this kingdom. (k) Bhuhrrr v. M>-r{.rr,imbe, 2 (m) SI. John v. Cumyn, Yclv. 117, Ravin. 147O. ami tin; <-aam v. King, Burr. 623. (/) fottingliatn v. f\ii,y, Him. 623. i>0 linnet v. I'cterioR, Stran. 1063- 630. Connor T. Wat, Burr. 2672. Bennii^tvn T. Goodtitlc, Hi. 1084. 42 OF WHAT THINGS Thus, an ejectment will lie in Ireland, for a township, for a kneave,(o) or quarter of land, or for so many acres of bog or ofmountain,(/j) the word mountain being in that kingdom, rather a description of the quality, than the situation of land, (q) But an ejectment in England for a hundred acres of mountain, or a hundred acres of waste, has been held to be bad for uncertainty, because both waste and mountain comprehend in England many sorts of land.(r) It is no objection to a description that the premises are twice demanded in the same demise. (s) An ejectment will not lie for a tenement, because many incorporeal hereditaments are included in that appella- tion,^) and, therefore, the description is not certain enough ; nor will an ejectment lie for a messuage or tenement, for the signification of the word tenement being more exten- sive than that of the word messuage, it is not sufficiently certain what is intended to be demanded in the ejectment.(M) It is also holden that an ejectment will not lie for a mes- suage and tenement. (v) (o) Cotlingham T King, Burr. 623. (u) Ashwarth v. Stanley, Styl. 364. 630. Wood v. Payne, Cro. Eliz. 186. Ro- (p) Barnes v. Peterson, Stran. 1063. cheater v. Rickhouse, Pop. 203. Bennington v. Goodtitle, Ib. 1084. (r) Doe, d. Brodthau:, v. Plowman, (q) Kildare v. Fisher, Stran. 71. 1 East, 441. and the cases there cited. vide cont. Macdonnogh v. Stafford, In the case of Goodwright,d. Welch, v. Palm. 100. S. C. 2 Roll. Rep. 189. St. Flood, (3 Wils. 23.,) in which a motioii .Mm v. Comyn, Yelv. 117. was made to arrest the judgment, be- (r) Hancock v. Price, Hard. 67. cause the plaintiff had declared of a (s) Warren v. Wakeley, 2 Roll. Rep. messuage or tenement, the Court en- 432. deavoured to get over the objection, (0 Goodlitlc v. Walton, Stran. 834. and took time for consideration, but Goplctlon T. Piper, Ld. Rayra. 191. ultimately thought themselves bound AN EJECTMENT WILL LIE. 23 But an ejectment for a messuage or tenement, with other words expressing its meaning, is good, as a messuage or tenement called the Black Swan ; for the addition reduce* it to the certainty of a dwelling-house. (IP) So also an ejectment for a messuage or burgage, is good ; because both signify the same thing in a borough. (x) An ejectment for four corn mills, without saying of what kind, whether wind-mills, or water-mills, is good ; for the precedents in the register are so.(?/) An ejectment will lie for a stable and cottage,(z) and also for a house ; though in zpracipe it ought to be demand- ed by the name of a messuage.(a) Ejectment of a place called a passage-room is certain by the adjudged cases, and reluctantly plaintiff had declared for a messuage arrested the judgment. Afterwards, and tenement, and the verdict was en- in Doe, d. Stewart, v. Denton, (1 T. R. tered generally ; but the Court permit- 11.,) on a similar application, where ted the lessor (pending a rule Tim to the plaintiff had declared for a messu- arrest the judgment for the uncertain- age and tenement, the Court refused ty) to enter the verdict according to the to grant the rule, II idler, .1. saying, he Judges' notes for the messuage only, remembered a case where a messuage and that without releasing the dama- er tenement had been held sufficiently ges. certain. But this case was afterwards (tc) Burbury v. Yeomaru, 1 Sid overruled, in Doe, A. Bradshaw, v. 295. Ploicman,(1 East, 441.,) "for that it (x) Danvcrt v. Wellington, Hard, passed by surprise, and was not law, 173. Rodiester v. Riekhotue, Pop. 203. being contrary to adjudged cases." (y) Fitzgerald v. Marshall, 1 Mod. The point i therefore now at rest, al- 90. though, from the more recent case of (a) Hill v. Gilet, Cm. Elie. 818. Goodtitle,A. Wrighl, v. Oteay, (8 East, Lady Dacru' case, 1 Lev. 68. Ha- 367.) the defendant is precluded from mond v. Ireland, Sty. 215. deriving any advantage from such er- (a) Royslon v. Ecclttton, Cro. Jc ror in description. In that case, the 654. S. C. Palm. 337. 24 OF WHAT THINGS enough. (/;) So also of a room, and of a chamber in the second story.(c) In like manner it has heen held that an ejectment for " part of a house in A" is sufficiently cer- tain, (d) So also of " a certain place called the v estry."(e) It has formerly been holden that ejectment for a kitchen could not be supported ; because, although the word be well enough understood in common parlance, yet, as any chamber in a house may be applied to that use, the sheriff has not certainty enough to direct him in the execution, and the kitchen may be changed between judgment and execution 5 but this reasoning does not correspond with the maxims of the present day.(/) An ejectment will not lie for a close,(g) nor for the third, or other part of a close, nor for a piece of land, unless the particular contents, or number of acres, be specified. (/<) From the old authorities, it seems also formerly to have been holden, (though the point is certainly somewhat ob- scure,) that the addition of the name of the close, without mention of the number of acres, would be bad ; though such a description, it is conceived, would now be deemed sufficiently certain, (i) In ejectment for land, the particular species should be (b) Bindover v. Sitidercombe, Ld. (A) Palmer's case, Owen, 18. Mar- Kiivui. 1470. tyii \. JVi'c.W*, Cro. Car. 673. Jordan (c) .Inony. 3 Leon. 210. v. Cleabournc, Cro. Eliis.339. Pemble (d) Sullican v. Scagrare, Stran. 695. v. Sterne, 1 Lev. 213. liatrson v. Maynard, Cro. Eliz. 280. (i) Lady Dacres' case, 1 Lev. 68, (e) Hutclnnton v. Puller, 3 Lev. 95. Sard's casi., 1 1 Co. 55. hniglU v. Syms, (/) Ford v. Lerke, Noy, 109. 1 Salk. 254. Rvyttun v. Eccleston, Cro. (#) Snvel't case, 1 1 Co. 55. Hani- Jac. 654. Jurdan v. Cltabourne, Cro, inond v Sard, 1 Rol. Rep. 65. Knight EIi7.,33D. H'ykei v. Sfarrmr, Cro. Jac. v. Syms, Salk. 254. Joatu v. Ilvtl, 435. Cro. Eliz, 235. AN EJECTMENT WILL LIE. 25 mentioned in the description, whether pasture, meadow, &c. because land, in its legal acceptation, signifies only arable land.(;) An ejectment for ten acres of underwood has been held good ;(k) because underwood is so well understood in law, that the sheriff has certainty enough to direct him in the execution. " Fifty acres of gorse and furze"(/) has been held suffi- ciently certain in an ejectment, without specifying the par- ticular qirantity of each : so also " fifty acres of furze and heath," and " fifty acres of moor and marsh."(m) An ejectment for "ten acres of pease" has been held to be certain enough, as signifying the same with ten acres of land covered with pease, (n) It seems that an ejectment may be brought for a manor, or a moiety of a manor, generally, without any description of the number of acres, or species of land contained there- in, and that under such general description the jury may find a verdict for the plaintiff, for a messuage, or for so many acres "parcel of the said manor," and for the defendant, for the residue of the manor ; but it is said in the old cases, not to be safe to bring an ejectment for a manor, without de- scribing the quantity and species of the land.(o) (j) .Vastly v. Rice, Cowp. 346, 349. (m) Connor v. West, Burr. 2672. Sarf/'jcase, 11 Co. 55. (n) Odingsall v. Jackson, 1 Brown, (A) Warren v. Wakeley, 2 Roll. Rep. 149. 482. (o) Warden'* case, Het. 146. Cole (0 Fitzgerald \. Martha!!, 1 Mod. v. Jylott, Litt. Rep. 299, 301. Hems IK). v.Strmtd, Latch, 61. 4 26 OF WHAT THINGS When an ejectment is brought for tithes, (p) the particu- lar species of tithe demanded, should be specified in the de- claration, as of hay, wheat, &c. or the description will be bad for uncertainty 5(7) but it is not also necessary to men- tion the precise quantity of each species, because tithe is in its nature uncertain, the quantity entirely depending on the fruitfulness of the season ; and it is, therefore, enough to say, "of certain tithes of hay, wool, &c."(r) In an old case, where the plaintiff declared on a lease for tithes in R., belonging to the rector of D., and that the de- fendant entered upon him, and took such tithes severed from the nine parts in jR., without saying that the tithes so taken belonged to the rectory of Z)., the description was held ill, because it did not confine the ouster to the tithes laid in the declaration; for the defendant might have ousted the plaintiff of tithes in R., which did not belong to the rec- tory of D.(s) In an ejectment brought in the county of Durham, the plaintiff declared "for coal mines in Gateside," generally, not specifying the particular number ; and it appearing, upon a writ of error, that such was the customary mode of declaring in the county, the judgment for the plaintiff was affirmed, (t) (p) It was once contended, that in Warrall v. Harper, 1 Roll. Rep. 65, 68. an ejectment for tithes, the ejection Dyer 84, 5. should be laid, " of the rectory, or (r) .Qnony. Dyer, 116, (fc). chapel, and of the tithes thereunto ap- () Baldwin v. Wine, \\ . Jones, 321, pertaining," for, that the plaintiff tamen queere, el vide Goodright, d. could not have a writ of habere facias Smallwood, v. Slrolher, Blk. 706. possessiontm of the tilhes only: but (f) W liiltingham v. Andrews, 4 Mod. the objection was overruled. Bald- 143. S. C. 1 Show. 364. S. C. Salk. wfnv. Wine, Cro. Car. 301. 255. S. C. Carth. 277. S. C. Cemb. (?) Harpur's case, 11 Co. 25. (6). 201. AN EJECTMENT WILL LIE. 27 If a person eject another from land, and build thereon, it is sufficient if the owner bring his ejectment for the land, without mentioning the building, except where the building is a messuage, and then perhaps it ought to be particularly named.(w) (tt) Goodtitle, d. Chester, v. jilker, Burr. 133, 144. 28 CHAPTER III. Of THE TITLE NECESSARY TO SUPPORT THE ACTION OF EJECTMENT. THE modern action of ejectment is the most simple and ready mode of trying every species of possessory title ; and nearly all the minute and perplexing distinctions with which our laws of real property abound, are to be found in cases where this form of action has been adopted. A full inquiry into all the points discussed in these cases, would render this treatise far too voluminous for practical pur- poses, and, indeed, would be foreign to its design, which is to treat of the remedy by ejectment, and not of the laws of real property ; whilst, on the other hand, an enumera- tion only of the different titles sufficient to support an eject- ment, would be of little service either to the student or practitioner. It is intended therefore to keep a middle course, first discussing the general principles upon which the remedy is founded, and afterwards stating in succession the various persons, who, from the nature of their several estates, are entitled to maintain the action ; pointing out the leading cases under each separate title, but leaving the more minute distinctions to those publications, which treat expressly of the laws of real property. As the party in the possession of property is presumed to be the owner of the same, until the contrary is proved. OF THE TITLE, &C. 29 it is necessary for a claimant in ejectment to show in him- self a good and sufficient title to the lands, to enable him to recover them from the defendant. He will not be assisted by the weakness of the defendant's claim. The possession of the latter, gives him a right against every man who cannot establish a good title ; and if he can an- swer a prima facie case on the part of the lessor of the plaintiff, by shewing the real title to the land to be in another, it will be sufficient for his defence, without also proving that he holds the lands with the consent, or under the authority of the real owner.(?)[3] And the case will (r) Roe, d. Haldane, v. Harvey, 4 Burr. 2484. [3] This rule, thus broadly laid down, is subject to numerous exceptions. A mortgagor is never suffered to set up the title of a third person against his mortgagee, Doe. v. Pegge, 1 T. R. 768, note So in ejectment by the second mortgagee against the mortgagor, the defendant was not suffered to set up the first mortgage in bar of the second. Ib. 760. S. C. 3 Wheaton's Rep. 225, 226. n. Bull. N. P. 110. And the mortgagor is deemed the legal owner of the land, as to all persons except the mortgagee, and may maintain ejectment. Collins v. Torrey, 7 Johns. Rep. 278. IVillington v. Gale, 7 Mass. Rep. 138. Porter v. Millet, 9 Ma*s. Rep. 101. Hitchrock v. Harrington, 6 Johns. 290. Sedgwick v. Hallen- back, 1 Johns. 376. Jackson v. Pratt, 10 Johns. 381. A persou entering into possession under another, and acknowledging his title, cannot set up an outstanding title in a third person. Jackson v. Stewart, 6 Johns. 34. Jackson v. De Walls, 7 Johns. 157. Menliall v. Wriglit, 3 Mass. Rep. 138. Whether there is a tenancy, or not, is matter of fact, and the defendant may produce parol evidence to disprove the existence of it. Jackson v. Vosburgh, 7 Johns. 186. A lessee will not be permitted to show that the laud leased to him is out of the boundaries of the lessor's premises. Jackson v. Wldtford, 2 Caines' Rep. 215. Brant v. Lirermore, 10 Johns. 358. 2 Camp. 12. Where defendant entered under A. , and afterwards obtained a release from H-, he cannot set up fi.'s title against a person claiming under A. Jackson v. Hinman, 10 Johns. 293. Defendant entering into possession for a year, and holding over, cannot 30 OF THE TITLE NECESSARY IN THE not be varied, although (he lessor can prove that he has previously been himself in possession of the premi- ohjcct to his lessor's title, or show title in a third person. Jackson v. M'Leod, 12 Johns. 182. Defendant entering under one tenant in common, cannot, after partition made, object to the title of the co-tenant. Jackson v. Creal &, Kellogg, 13 Johns. 116. and Smith v. Burlis, 9 Johns. 174. A person coming into possession under ./., cannot set up a title which .1. would not be permitted to set up. Jackson v. Harder, 4 Johns. 202. A tenant cannot resist his Landlord's recovery in ejectment, by virtue of an adverse title acquired during his lease. Lessee of Galloway v. Ogle, 3 Bin- ney, 468. A defendant entering without title, and afterwards agreeing to purchase of the lessor of the plaintiff, was held to have recognized him as landlord, and vras not admitted to dispute his title. Jackson v. Reynolds, 1 Caines' Rep. 444. Jackson v. Whitford, 2 Caines' Rep. 215. Jackson v. Vosburgh, 7 Johns. 188. But where tenant is in possession under an adverse title, and applies to the lessor of the plaintiff to purchase, and requests to be considered as his tenant, he was permitted to show that the application was founded in mistake, or that the fee existed in himself or out of the lessor. Jackson v. Cuerden, 2 Johns. Cas. 353. A person in possession covenants to pay for the land in ejectment by the covenantee, defendant is estopped from setting up an outstanding title, unless he can show deceit in the agreement. Jackson v. *1yres, 14 Johns. 224. In ejectment by the grantee, in a mere voluntary conveyance, the heir of the grantor cannot set up want of consideration in bar of the action, for the deed, fraudulent as to creditors, is good against the grantor. Jackson v. Garnsey, 6 Johns. 189. A purchaser under an execution, is in the place of the defendant, and quasi tenant, and, in ejectment by the landlord, cannot set up title in a third per- son. Jackson v. Graham, 3 Caines' Rep. 188. Nor can the defendant, or a person in under him collusively, set up a title in a third person against the purchaser. Jackson v. Bush, 10 Johns. 223. The rule that a plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's, does not apply against a plaintiff who was fraudulently induced by the defendant to purchase a weak title. Lane \. Reynard, 2 Sergeant &, Rawle, 65. Defendant claiming title under same survey as plaintiff, cannot object to the correctness of the survey. Powers v. M'Ferran, 2 Sergeant &t Rawle, 44. The purchaser of an equity redemption, sold on execution, can aver no title against any other person than the execution debtor, or his immediate as- Morns. Forster v. Melton, 10 Mass. Rep. 421. ACTION OF EJECTMENT. -il ses.[4] Thus, where a lease, made hy a rector, was rendered void by his non-residence, his lessee was not allowed to reco- ver against a stranger, who, without any title whatsoever, ousted him, and got possession. (w) So, also, where a man leased land for years, and his lessee, after having been in pos- session a considerable time, made an under lease, the under lessee, upon an ejectment brought by his immediate lessor, (MJ) Doe, d. Crisp, v. Barber, 2 T. plaintiff has a priority of possession, R. 749. It is said in the case of Jll- aud no title is found for the defendant, * len v. Rivinglon, 2 Saund. 111. that the plaintiff shall have judgment;" " in ejectment, if it appear by the re- but this doctrine seems directly over- cord of a special verdict, that the ruled, by the case here cited. [4J A mere trespasser or intruder, cannot protect himself by setting up an outstanding title in a stranger. Jackson v. Harder, 4 Johns. 202. Where the plaintiff relied upon a mere possessory title, he was not bound in show a possession of twenty years, where the defendant had entered, without claim or color of title. The entry was tortious, and a party shall not derive a right from his own unlawful act. Jackson v. Hasen, 2 Johns. 24. If the lessor shows himself in the peaceable possession of land, and that he was forcibly dispossessed, the defendant will not be permitted to set up title to defeat it. He must restore the party to his possession, wrongfully taken from him, in the first place. People v. Leonard, 11 Johns. 5(9. But in the case of Jackson v. Scclye, (16 Johns. 2.00) Spencer, Ch. J. sni .,, individually, I am of opinion, that a forcible entry on the premises will not " estop the defendant from asserting an independent right to retain the pos- session. The action of ejectment includes a trespass, and is founded oil " the notion that the defendant 1ms forcibly entered upon the possession of " the nominal plaintiff. It may safely be asserted, that am defence, which, " as it respects the right to the premises, would protect the defendant from " the recovery of damages in an action of trespass quart clausum fi'tgif, " will, d fortiori, protect a defendant in ejectment." In the case of Hyatt \. Wood, (4 Johns Rep. 150) it was decided, that if one having a possessory title to land, enters forcibly, and turns out a person who ha.s a naked posses- sion only, the latter could not maintain trespass, although the person enter ing forcibly might be indicted for a breach of the peace. A naked possession is sufficient title on which to recover against a mere --I.T, who can show no better title. Wood* v. Lane, 2 Serg. &t Rawle, 53. 32 OF THE TITLE NECESSARY IN THE was allowed to shew that the lease from the original lessor had expired, and thereby nonsuited the plaintiff, (x) [5] In order to enable a claimant to support an action of ejectment, he must be clothed with the legal title to the lands. (y) No equitable title will avail. And this princi- ple is so fixed and immutable, that a trustee may maintain ejectment against his own cestui que trust >(2)[6] and an unsatisfied term outstanding in trustees will bar the re- covery of the heir at law, even though he claim only sub- ject to the charge. (a) In the time of Lord Mansfield, (z) England, d. Syburn, v. Slade, Luxlon, 6 T. R. 289. 4 T. R. 682. (z) Roe, d. Reade, v. Read, 8 T. R. (?/) Goodtitle, d. Jones, v. Jones, 7 118, 123. T. R. 43, 47. Doe, d. Da Costa, v. (a) Doe, d. Hodson, v. Staple, 2 T. Wharton, 8 T. R. 2. Doe, d. Blake, v. R. 684. [5] But if defendant proves a title out of the legsor of the plaintiff, it must be a good and subsisting title, and if the plaintiff shows a good title, the pre- sumption of the extinguishment of the outstanding title will be liberally in- dulged. Jackson v. Hudson, 3 Johns. Rep. 375. Jackson v. Todd, 6 Johns. 267. Where more than 20 years have run against an outstanding title, it cannot be set up as a bar. Jackson v. Harder, 4 Johns. 202. So, where a defendant produces a lease for 1000 years to another, he must how possession under the lease within twenty years. Bull. N. P. 1 10. [6] This principle has been recognized by the Supreme Court of New-York, in the case of Jackson v. Deyo, 3 Johns. Rep. 423. The only way in which an equitable title can be assisted at law, is, by allowing the presumption in certain cases to prevail, that there has been a conveyance of the legal estate. Jackson v. Pierce, 2 Johns. Rep, 221. But when the case precludes any such presumption, the legal title is pe- remptory, and must prevail, and especially if the equitable title be dubious. Jackson v. Sisson, 2 Johns. Cases, 321. Jackson v. Van Slyck, 8 Johns. 487. In Pennsylvania, where there is no Court of Chancery, the courts at law stay the execution, where defendant has an equitable title to the lands. Lessee of Malhtrs v Mewri^M, 2 Binney, 93. In that State the vendee of lands may recover them by ejectment, under articles of agreement for the sale, upon tendering the purchase money, and their courts at law enforce articles of agreement for the sale of lands, by ejectment, in all cases where a Court of Chaucery would decree a specific performance. Haven v. JVinrw, 4 Binney, 77. ACTION OF EJECTMENT. 33 indeed, the Court of King's Bench seemed inclined to adopt ,i different principle, and to exercise a species of equitable jurisdiction in this action. Thus, a mortgagee was per- mitted to maintain ejectment against a tenant, claiming mxlrr a lease granted prior to the mortgage, provided he gave notice to the tenant, that he did not intend to disturb the possession, but only to get into the receipt of the rents and profits of the estate ;(&) the legal estate of a trustee was not allowed to be set up against the cestid que trust ;(c) and a reversioner was allowed to recover his reversionary interest, subject to a lease and immediate right of posses- sion in another.( d) These cases, however, have long been overruled, and the clearness and certainty of the principle since adopted amply compensate for the partial incon- venience it may at times occasion. The claimant must also have a right to the possession ; that is to say, he must have a right of entry upon the lands at the time of the demise in the declaration. And what- ever takes awaj this right of entry or possession, and turns the same into a right of action, will also deprive the claim- ant of his remedy by ejectment, although the legal title still remains in him. But if he be entitled to the possession at the time the demise is laid, it will be sufficient, although such right of possession be divested before trial ; for the action of ejectment is intended to give the party compensa- tion for the trespass, as well as to enable him to recover possession of the land ; and he has a right to proceed for (6) Ktech, A. Warne, v. Hall, Doug. Doe, d. Gibbon, v. Poll, Doug. 710 21. Mots Y. Gallimore, Doug. 279. 721, rt vide Oaten, d. Wig fall, v. Bry- B. N. P. 96. don, Burr. 1896. 1901. (c) Lade T. Holford, B. N. P. 110. (d) Per Butler, J. in Doe, d. Brit- 9. C. Burr. 1416. S. C. Blk. 428. tow, v. Pegge, 1 T. R. 759. (in notit.) Doe, d. Hodxon, v. Staple, 2 T. R. 684. 5 J't OF THE TITLE NKCKS5ARY IN THE such trespass, although his right to the possession should cxjase.(c)[7] The origin of the principle, that the lessor must have a right of entry, has already been considered. (f) and \ve must now notice the several ways hy which this right of entry or possession may be destroyed. The consideration of the effects of fines levied with proclamations, and of the right of entry, as between landlord and tenant, for con- dition broken, will be reserved for the two following chap- ters : those acts only are here to be considered, which take away the right of entry from the claimant, but leave in him, notwithstanding, the right of property or of action. In this point of view, a right of entry may be destroyed in three several ways. First, by Discontinuance ; secondly, by Descent ; and, thirdly, by the Statute of Limitations. I. BY DISCONTINUANCE. A discontinuance of an estate signifies such an alienation made or suffered, by any person seised of an estate-tail, or in autre droit, in things which lie in livery, as takes away the entry of the person entitled after the death of the alienor. " This injury happens when he who hath an estate-tail, maketh a larger estate of the land than by law he is en- (e) Dot, d. Grundy, v. Clarke, 14 (/) J1de ante, 10. East, 488. [7] Ejectment being: merely a possessory remedy, will not lie in favor of a prr>n already in possession ; and, therefore, a landlord having obtained ion, cannot hrinsr ejectment, in order to bar the right of his absconding lessee. Jackson v. Uakts, 2 Games' Hep. '&. ACTION OK KJECTMENT. 35 titled to do : in which case the estate is good, so far as his po\ver extends who made it, but no farther. As if a tenant in tail makes a feoffment in fee-simple, or for the life of the feoffee, or in tail ; all which are bejond his power to make, for that, by the common law, extends no farther than to make a lease for his own life : here the entry of the feoffee is lawful during the life of his feoffor ; but if he retains the possession after the death of the feoffor, it is an inju- ry, which is termed a discontinuance ; the ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discon- tinued. For, in this case, on the death of the alicnors, neither the heir in tail, nor they in remainder or reversion, expectant on the determination of the estate-tail, can enter on and possess the lands so alienated ; because, the original entry of the feoffee being lawful, and an apparent right of j)ii--.--Jsion being thereby gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant, (g) By the common law, an estate-fail may be discontinued five ways : first, by confirmation with warranty; secondly, by feoffment; thirdly, by fine; fourthly, by common re- covery ; fifthly, by release. [8] An estate-tail cannot, however, be discontinued, except where he, who makes the discontinuance, was once seised by force of the in-tail, that is, seised of the freehold and (g) 3 Blk. Com. 171, 6. [8] By a statute of New-York. (1 Rev. Laws, 52.) trnaiu ic> in-tail arr abo- lifthcd ; and Arsons who, if the act were not pa cu- ter on the lands in question ; and, therefore, the wife, or her heirs, may now, in such cases, support ejectment. A feoffment by husband and wife is within this statute ; because, in substance, it is the act of the husband only ; but a tiiie levied by the husband and wife is uot.(m)[9] When, also, the husband and wife are jointly seised to them and their heirs, or the heirs of their two bodies, of an estate made during the coverture, and the husband makes a fcoflf- ment in fee, and dies, the wife may enter under the pro- visions of this statute, although it was the inheritance of them both.() By the statute of 1 1 Hen. VII. c. 20. it is also provided, (m) 1 Inst 326, (a). CromwcWt (n) 1 Tnst. 326, (a). Grcenley's case, case, 2 Co. 77, (6). 8 Co. 142, (6). [9] By a statute of New- York, (1 Rev. Laws, 369.) a feme-covert may con- vey lands by deed, by acknowledging its execution, on being: examined by a judge, fac. privately, and apart from her husband. A grant in fee, by husband and wife, of the wife's lands, not acknowledged by the wife, passes only the husband's interest, and the estate, after his death, reverts to his wife or her hf-irs. Jackson \. Hears, 10 Johns. 435. And her subsequent acknowledgment docs not relate back to the time of Uit execution of the deed. Jackson v Stevens, 16 Johns. 110. Where husband and wife execute a deed of wife's lands, which was not then acknowledged, and they afterwards execute and acknowledge another deed of the sa;ne land, to a second person, and the wife afterwards acknowledges th first deed, the title to the land is rested in the second grantee. /6W. ACTION OF EJECTMENT. 39 that "if a woman has any estate-tail jointly with her hus- band, or only to herself, or i< her use, in any lands or here- ditaments of the inheritance or purchase of her hushand, or given to the husband and wife in tail, by any of the an- coiors of the husband, or by any other person su-ised to the use of the husband, or his ancestors, and shall hereafter, Ix -inn sole, or with any other after-taken husband, discon- tinue, &c. the same, every such discontinuance shall be void, and it shall be lawful for every person to whom the interest, title, or inheritance, after the decease of the said woman, should appertain, to enter," &c. This statute is, for the most part, confined to convey- ances by the husband, or his ancestor, for the advancement of the wife.(o) Hence, if land be settled by the ancestor of the wife, in consideration of the marriage, it is not with- in this act ; for it shall be intended that the advancement of the wife was the principal caifse of the gift.(/>) But, where the conveyance is by a stranger, in consideration of the wife's fortune paid by her father to the vendor, and other money paid by the husband, it is within the act. (7) So, if the conveyance be by the husband, or his ancestor, in consideration of marriage, although it be joined with a mo- ney consideration, yet it is within the statute. (r) But no estate is within the meaning of this statute, unless it be for the jointure of the wife. Hence, although an estate de- vised by the husband to the wife in tail, with remainder ov-r to a stranger in fee, be within the words, yet it is not within the meaning of the statute ; for it shall not be in- tended to be for a jointure, where no inheritance is reserv- ed to the husband or his heirs, and the meaning of the sta- (o) fouler v. Pitfall, Cro. Eliz. 2. S. (q) Piygot v. Pitlntfr, Moor, C. 1 Li-ori. 261. (r) Xirkman v. Thornton, Cr. Jac. (y>) Kynaston v. Lloyd, Cro. Jac. 624. 474. 40 OF THE TITLE NECESSARY IN THE tute is, that the wife shall not prevent the lands descending to the heirs of the husband. ($) If the issue in special-tail, with reversion in fee expec- tant, levy a fine, and afterwards his mother, hcing tenant in tail within this act, make a lease for three lives (not war- ranted by the statute 32 lien. VIII. c. 28.) living the is-n.; ; the conusee may enter.(f) But if the reversion in fee had been in another, the conusee could not enter, because he would have nothing but by estoppel ; nor the heir, because he had concluded himself by the fine ;(w) nor the issue.(-u) Formerly an alienation made by a sole corporation, as a bishop, or a dean, without the consent of the chapter, was a discontinuance ; but since the disabling statutes,(zo) which declare such alienations absolutely void, ab initio, no dis- continuance can by such means be effected.(x) 2. BY DESCENT. (y) " Descents, which take away entries, are, when any one, seised by any means whatsoever of the inheritance of a corporeal hereditament, dies, whereby the same descends (*) Foster T. Pitfall, Cro. Elir. 2. S. always lay his demise in the time of C. 1 Leon. 261. the ancestor, and elect not to be Uis- (/) Brown's case, 3 Co. 60, (6). seised ; but a general account of the (u) Ward* Walthev> t Cro Jac. 178. doctrine of descent cast is given here, (c) Lincoln Coll. case, 3 Co. 01, (o). in order to render this part of the (w) 1 El. c. 19. 13 Elia. c. 10. subject complete. Vide Taylor, d. j9t- (x) F. N. B. 194. kins, v. Horde, (Burr. 60.) where the (y) It is scarcely possible to sug- history and principles of the doctrine gest a case, in which the doctrine of of descent cast are most ably investi- descent cast can be now so applied, gated by Lord Mansfield. Vide also as to prevent a claimant from main- William, d. Hughes, r. Thomas, (12 taining ejectment, as, from the prin- East, 141.) ciples of disseisin at election, be may ACTION OP EJECTMENT. 41 to his heir: in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken away ; and he cannot recover possession against the heir by this summary method, but. is driven to his action to gain a legal seisin of the estate. And this, first, because the heir comes to the estate by act of law, and not by his own act ; the law, therefore, protects his title, and will not suffer his possession to be divested, till the claimant hath proved a better right. Secondly, be- c;ui>e the heir may not suddenly know the true state of his title ; and, therefore, the law, which is ever indulgent to heirs, takes away the entry of such claimant as neglected to enter on the ancestor, who was well able to defend his title ; and leaves the claimant only the remedy of an ac- tion against the heir. Thirdly, this was admirably adapt- ed to the military spirit of the feudal tenures, and tended to make the feudatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands whereof he died seised. And, lastly, it is agreeable to the dictates of reason, and general principles of law."(z) This doctrine of descent cast does not apply, if the claimant be under any legal disabilities during the life of the ancestor, cither of infancy, coverture, imprisonment, insanity, or being out of the realm ; because, in all these cases there is no neglect or laches in the claimant, and, therefore, no descent shall bar or take away his entry. (a) Nor does it affect copyhold, or customary estates, where the freehold is in the lord ;(6) nor cases where the party has not any remedy but by entry, as a de\ isee.(c) (:) 3 Blk. Com. 17. (6) Doe, A. Couk, v. Dnnrerj, 1 Kast. 'n} Lilt. 1. 3. . ri 299. (r) C... Lilt. -2 10, (6). 6 42 OF THE TITLE NECESSARY IN THE The right of entry may be tolled, or taken away, by a descent cast, in cases of abatement, intrusion, und dis- seisin. [1] [1] " The distinction between a disseisin, by election, as contradislin- " guished from a disseisin, in fact, was taken for the benefit of the owner of " the land, and to extend to him the easy and desirable remedy of assise of " novel disseisin, instead of the more tedious remedy by a writ of entry. " \Yhcnever ;c distinctions between " disseisins m fact, and disseisins by election, were enforced in the very " distinguished case of jUkyas v. Horde, (1 Burr. f>>.) and they have been his- " torically and ingeniously illustrated by Mr Butler, in a note to Coke Little* << ton, 330, b. note 285." Per Kent, J. Jackson v. Rogers, 1 Johns Cas. 36. An actual disseisin is necessary in order to cast a descent. The rightful owner must have been tortionsly ousted, either by violence, or by some act that the law regards as equivalent in its eflccts. Disseisin is an estate gained by wrong and injury, and therein differs from dispossession, which may be by right or wrong A peaceable entry on land, apparently vacant, furnishes, per se, no presumption of wrong. An entry, not appearing to be hostile, is to be considered an entry under the title of the true owner. Where the heir re- lies on a descent cast, he must s-how the entry of his ancestor to have been tortious, and net co-iigeable. Smiih v. Curtis, 6 Johns. 198 also, vide Jack- son v. Sctinonmaker, 4 Johns 390. and authorities cited. The surrender of the lands of an infant (sed fju&re) to a third person, by his guardian, is a disseisin, and the infant is bound to bring his action with- iu ten years after coining of age. Jackson v. Jl'hitlock, 1 Johns. Cas. 213. A lease for years, by a tenant at will, is no disseisin, unless the true owner elect to make it so; nor does it destroy his capacity to devUe. Blunden r. Hun gh, (.'ro. Car. 30:2. A disseisin renders the disseisee incapable of devising ; for a devisor must die seised, and the disseisee lias only a right of entry, which is not devisable^ Powell on Devi-es, 1S4. Roberts on V.'ills, 21)7. Bunker v. Cook, 11 Mod. 128 Coodrighl v. Foresier, 8 East, 566. Cruise's Digest, 28, 29. Title Devise, < hap. 3. sec. 25. and 28. But if drvisor re-enter, the devise becomes valid, he then being considered '<* in possession, by relation, from the time his title accrued. Ibid. If a testator, being disseised, devise his interest to the dissrisor, it operates ACTION OF EJECTMENT. 3 Hy the common law, if an abater, or intruder, or dis- s\-i>or, died in peaceable possession, the d \-rrul to the heir gave to him a right of possession, and look away from the true owner his right of entry, although such death hap- pened immediately after the wrongful acquisition of the lands ; but by the statute of 32 Hen. VIII. c. 33. it is pro- vided, that " the dying seised of any disseisor of and in any lands, &c. having no title therein, shall not be deemed a descent, to take away the entry of the person, or his heir, who had the lawful title of entry at the time of the descent, as a release, but he cannot devise the lands to any other person. Poor v. Ro- binson, 10 Mass. Rep. 131. A devi.se is an intimation of an election not to be disseised. Jackson v. Ro- gers, I Johns. Cas. 33. \ 3. The descent of a tenant at sufferance will not toll an entry. Jackson v. Raymond, I Johns. Cas. 88. The holding over of a tenant for years is no disseisin, except by election, and the bringing an ejectment is not an election to be disseised. Ibid. In Smartel v. It'illiams, (Salk. 246.) Holt held, that where mortgagee as- signed, the mortgagor, by the covenant to enjoy till default of payment, is te- nant at will, the assignment made him tenant at sufferance, but his continuance in possession could never make a disseisin, nor divest the term ; otherwise, had the mortgagor died, and his heir entered ; for the heir was never tenant at will, and his first entry was tortious ; but had the mortgagee entered on the mortgagor, and the mortgagor had re-entered, the re-entry would be tortious. The same point is ruled in Gould v. A'acman, f> Mass. Rep. 239. A corporation cannot acquire a freehold by a disseisin committed by itself. Wetton v. Hunt, 2 Mas. Hop. r*\2. Where a disscisor employed an agent to procure a deed from the owner of the land, and the agent took the deed in his own name, the dissc i>in was not thereby purged, and nothing passed by the deed. Smnll r Proctor, 16 Mass. Rep. 495. Where a conveyance of land was obtained by fraud, it did not operate .-u< h ;i di-M-isin as to disable the grantor to de\ i*c the land conveyed by such deed. Smithicick v. Jordan, 15 Mas*. Rep. 113. 44 OF THE T1TI.K NKCKSSAKY IN THE Unless the disseisor has had peaceable possession for five years next after the disseisin, without entry or continual claim by the person entitled." This statute, however, being a penal one, is construed strictly, and does not ex- tend to the feoffee, or donee of the disseisor, mediate or immediate, and, therefore, the descent in such cases re- mains as at the common law.(rf) It is also said, that abaters and intruders are not within the statute: but the successors of bodies politic and corporate in cases of dis- seisin are within its remedy, although the statute speak of him, that at the time of such descent had title of entry, or his heirs ; for the statute clearly extends to the predecessor, being disseised, and, consequently, without naming his suc- cessor, extendcth to him, for he is the person that, at the time of such descent, had title of entry.(e) If there be tenant for life, the reversion in fee, and tenant for life be disseised, and die, and the dieseisor after- wards die within five years, the reversioner is within the benefit of the statute, and his entry is not taken away ; for, after the death of the tenant for life, it is a continuation of the same disseisin to the reversioner. But if the disseisor had died seised, and the tenant for life had afterwards died, there the descent would have taken away the entry of the reversioner, because there was no continuation of the same disseisin upon the reversioner. The act only continues a right of entry in the disseisee, where a right of entry was once in him ,' but in the last case a right of entry never was in the reversioner, and consequently never having had the right of possession, he is not a disseisee within the statute, to punish the possession of the heir as an actual ouster. (<*) Co. Lht. 266. (c) Co Litt.238. W'wMsh\.Tail- bois, Plow. 38. 47. ACTION OP EJECTMENT. 45 since the reversioner was never actually ousted either by the original disseisor, or his heir.(e) It is immaterial whether the descent be in the collateral line or lineal ;(/) but a dying seised of an estate for life, or of a reversion, or remainder, will not take away an enti because, for this purpose, it is essentially necessary that the disseisor should die seised both of the fee or fee-tail and freehold. If, therefore, the disseisor make a lease for his own life, or the life of another, and die seised of the reversion, this descent will not take away the entry, be- cause, although he had the fee, he had not the freehold at tlu- time of his death ; but if he make a lease for years and die seised of the reversion, the entry will be taken away, for the fee and freehold are both in him. The law is the same in the case of a remainder, and when the land is extended upon a statute, judgment, or recognizance. (A) It is also necessary, that the descent of the fee and free- hold be immediate to bar the entry. Hence, if feme di>risorc-> take husband, and have issue, and after- wards the husband die, such descent will not take away the entry of the disseisee ; because the heir comes not to the fee and freehold at once, the latter having been suspended until the death of the father, who was tenant by the courtesy. (i) To constitute a descent, therefore, which shall take away an entry, it appears, that there must be a dying seised in demesne of a corporeal inheritance, either in fee or fee-tail, that the rightful owner be under no legal dis- ability in the time of the ancestor, and also in those cases (e) Co. LiU. 238. Wimbisk r. Tail- (n) Litt. s. 387, 388. /wu, Plow. 38. 47. (/i) Co Lilt. 239, (l>) (/) Co. Liu. 339, (6). (i) Liu. s :v.i J 16 OF THE TITLE NECESSAUY IN THL to which the statute of 32 Hen. VIII. c. 33. extend?, thai the disseisor have five years quiet possession of the lands. 3. BY THE STATUTE OP LIMITATIONS. By the statute of 21 Jac. I. c. 16. s. 1. it is enacted, that " no person shall make any entry upon any lands, &c. but within twenty years next after his right or title shall first descend, or accrue, and, in default thereof, such person so not entering, and his heir, shall be utterly disabled from such entry." Section the second enacts, " that if any per- son having a right or title of entry, shall be, at the time of the said right or title first descended, accrued, come, or fallen, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond seas, then such per- son, and his heir, may, notwithstanding the said twenty years be expired, bring his action, or make his entry, as he might have done before this act, so as such person, or his heir, shall, within ten years next after his and their full age, discoverture, coming of sound mind, enlargement out of pri- son, or coming into this realm, or death, take benefit of, and sue forth the same, and at no period after the said ten years." From the ancient doctrine ofnullum tcmpus occurrit regi. the King is not bound by this statute,^' )[2] nor are ecclesi- (j) By stat. 9. Gco III. c. 16. the or claim, and consequently an adverse King is disabled from claiming- title, possession of lauds for sixty years (except to liberties and franchises,) will now be a good title, even aguin-f unless the same shall acrnie within the the Crown, space of sixty years next before suit [2] Bv statute of New-York, (1 Rev. Laws, 194.) no suit can be brought by the people of that state tor lamb, but within forty years after their title accrued, unless the people, or those chiming under them, shall have received the rents and profits thereof, within the Paul spare of forty yearn. ACTION OF EJECTMENT. 47 astical persons within it, because it would be an indirect means of evading the statutes made to prohibit their aliena- tions ; but, with these exceptions, the statute applies to all persons, capable of a right to enter ; and, therefore, if it appear that there has been a possession by the defendant, or those under whom he holds, for the last twenty years, ad- verse to the title of the claimant, and that the claimant has not been prevented from prosecuting his claim earlier, by reason of some of the disabilities allowed by the statute, he will be barred of his remedy by ejectment.[3] It is not easy to define what will constitute an adverse holding of this naturc 3 [4] but it may be safely laid down [3] If a person out of possession of land, held adversely, convey the same to another, the deed is void at the common law, and by the act against chanv jicrtv and maintenance, and the title still remains in the grantor, and he may maintain ejectment. Williams v. Jackson, 5 Johns. 489. and where demises wore laid, both from the grantee and grantor, plaintiff was allowed to recover on the demise of the grantor. Ibid. The same principle has been recognized by the courts in Massachusetts. 6 Mass. Hep. 2.'J3. 3 ib. 573. 6 ib. 239. 6 ib. 418. 11 ib. 222. 7 ib. 76. 10 ib. 60. 11 ib. 549. 9 ib. 514. 11 ib. 298. But the possession of a third person is not of itself conclusive against a con- veyance by the grantor, but it must be shown to be adverse. Commonwealth- v. Dudley, 10 Mass. Rep. 403. Where a conveyance of land was obtained by fraud, it did not operate such a disseisin as to disable the grantor to devise the land so conveyed. Smith- icirk v. Jordan, 15 Mass. Rep. 113. It is an established rule, that a party in possession, claiming title, may pur- chase in an outstanding title to protect his possession. Jackson v. Smith, 13 Johns. 2LD. [4] To make out an adverse possession, strict proof must be made, net only that the lirst possession wai taken under a claim hostile to the real owner, but that such hostility has existed on the part of the succeeding tenants. It is also requisite that such possession should be niaiUed by definite boundaries. Brandt v. Odgcn, 1 Johns. 158. Jackson v. Waters, 12 Johns. 368. Adverse possession is not to be made out by inference, but by clear and po- sitive proof, and every presumption is in favour of possession in subordination. IS OF THE TITLE NECESSARY IN THE that an adverse possession will be negatived, when the par- ties claim under the same title, when the possession of one to the title of the true owner. Ibid. And Jackson v. Sharp, 9 Johns. 167. /} iilJiftm v. Conklin, 8 Johns. 227. To constitute un adverse possession, it is not necessary that there should be a rightful title ; it must, however, be a possession under claim or colour of title, and exclusive of any other right. Smith v. Burtis, 9 Johns. 180. Jack- son v. Ella, 13 Johns. 1 18. But where defendant hold.- by adverse possession under a deed, and shows that he took possession under it, he is not bound to produce the deed at the trial, though called for by the plaintiff. Jackson v. Wheat, J8 Johns. 44. A claim, or colour of title, sufficient to destroy all presumption that the de- fendant was in possession under the plaintiff, or held in obedience to his right, is adverse. But occupation by a mere intruder, will not constitute an adverse possession, nor prevent an alienation by the real owner. Jackson v. Todd, 2 Caiues' Rep. 185. A grant from the French government is considered as a nullity, and a pos- session taken under such a grant was held not to be adverse. Jackson v. Waters, 12 Johns. 367. Where a person enters without title, and tenants attorn, it is not a disseisin, and the attornment is o''d, and such entry and attorninent will not be consi- dered as the commencement of an adverse possession. Jackson v. Delancey, 13 Johns. 553. Whenever the defence of adverse possession is set up, the idea of right is excluded, the fact of possession, and the quo animo it was commenced or con- tinued, are the only tests. Smith v. Burtis, 9 Johns. 180. Adverse possession is a question exclusively for the jury ; and the judge having directed as to that fact, a new trial was granted. Jackson v. Joy, 9 Johns. Ki-2. Where a boundary line in a partition deed was in dispute, defendant may protect himself, by showing possession under the line for thirty-eight years. But he protects himself only by his adverse possession, and cannot show a mistake in the deed by parol. Jackson v Boicen, 1 Caines' Rep. 358. A parol agreement for partition, and a corresponding possession (or twenty years, is conclusive in ejectment. Boyd v. Graves, 4 \\heaton, 613. Ebert v. Wood, \ Biiuiey, 216. A possession fence made by felling trees, and lapping them one upon an- other around a lot, will not suffice to make out an adverse possession, when that is the only defence, and to countervail a legal title ; but there must be a substantial enclosure, and real occupancy, a possessio pedis, definite, positive, and notorious. Jackson v. Schoonmaker, 2 Johns. 230. It stem* to have been decided by the Supreme Court of Pennsylvania, in ACTION OF EJECTMCN S. 49 party is consistent with the title of the other, when the party claiming title has never in contemplation of law been out of possession, and when the possessor has acknowledg- ed a title in the claimant. the case of Burns v. Sic(/Y, (2 Sergeant &. Rawle, 439.) that an adverse pos- session of part ot disputed premises, is au adverse possession of the whole. A possession of a lot of land, commencing', adversely, twenty-five years go, by a clearing of four or five acres, without showing on what part such ek-iiiinc; was inaile, and a regular deduction of title, and a priority and con- tinuity of possession down to the defendant, is not such an adverse posses- sion as will bar the plaintiff Jackson v. Campbell, 10 Johns. 475. If defendant, iti ejectment, set up the act of limitations, he must stand on bi> o.vn pt'.'.scsMon, and cannot call in the possession of one whose title the plaintiff has purchased to assist him. C/uggage v. Duncan, 1 Sergeant & Raxvlc, 111. If a person, recovering in ejectment, neglects to enforce his recovery within the time laid in his dcmiM:, his right of entry is gone, and his recovery will not avail, to take the case out of the statute of limitations. Jackwii v. llavi- liuul, 13 Johns. 229. A. enters into possession, under a lease in fee, in 1775, and gives the land to B. by parol, who continues in possession (except during the war, a year or two i until 1798, and conveys to ('., who conveys to D. ; it was held a suffi- cient adverse possession, to bar an ejectiil years would have barred the heir-at-law of the wife ; but as it appeared that there was a custom in the manor for the husband to hold the lands for his life, in the nature of a tenant by the courtesy, and this without any admittance after the death of the wife, the possession of the copyhold by the husband was referred to this title, and not to the ad- mission under the settlement ; and such possession being consistent with the title of the heir at law, he was allowed to maintain ejectment against the devisee of the husband, within twenty years after the husband's death, though more than twenty years after the death of the wife.(m) And although one third part of the premises had been settled, many years before the marriage, upon a third per- son for life, and the steward of the manor, appointed by the heir-at-law and her husband, had constantly debited himself with the receipt of two-thirds of the rent for the husband, on account of his wife, and the remaining one- third for the annuitant ; yet, as no surrender had been made to the trustees of the annuitant, it was held, that such pay- ment to him must be taken to be with the consent of the person entitled by law to the whole premises, so as to do away the notion of adverse possession by the husband of that third, distinct from his possession of the other two- thirds, as tenant by the courtesy after the wife's death. So, also, where a copyholder, with the licence of the lord, leased the copyhold lands for forty years, with a proviso for re-entry, if the rent should be in arrear, and made a will, devising such copyhold lands to A., and died, twenty years of the lease being then unexpired, and the heir-at-law re- ceived the rent from the lessee, from the time of the death (m) Doc, il. MHncr, v. Brigliltccn, 10 Knsl, 688. 52 OF THE TITLE NECESSARY IN THE of the copyholder until the expiration of the lease, and for ten years afterwards, when the devisee brought an action of ejectment ; it was holden, that the devisee was not barred of this remedy by the statute of limitations, although more than twenty years had elapsed from the time of the death of the testator, and the forfeiture of the lease, by non-pay- ment of rent to the devisee; for, until the termination of the lease, the devisee had no right to enter, except for the forfeiture ; and although he might have entered by reason of the forfeiture, yet he was not bound to do so. (74) So, also, where the rents, issues, and profits of a trust es- tate were received by a ccstui que trust for more than twenty years after the creation of the trust, without any inter- ference of the trustees, such possession, &c. being consistent with, and secured to, the cestui que, trust, by the terms of the trust-deed, the receipt was held not to be adverse to the title of the trustees, so as to bar their ejectment against the grantees of the cestui que trust, brought after the twenty years.(o) And, indeed, as the cestui que trust is a tenant at will (p) to the trustees, and his possession is the possession of the trustees, the statute will never operate between trustee and cestui que trust, except in very particular cases ; although it seems, that if a cestui que trust sell or devise the estate, and the vendee or devisee obtain possession of the title deeds, and enter, and do no act recognizing the trus- tee's title, the statute will operate from the time of such entry.(?)[5] (n) Doe, d. Cook, r. Danvers, ^ East, (p) Gree v. Rolle, Ld. Raym. 716. 299 (q) Vide Sugden's Vendors and PUT- (o) Keane, d. Lord Byron, v. Dear- chasers, 2 Edit. 241. don, 8 East, 248. f6] As long as a trost subsists, the right of a ctt/ut ijue tnist cannot be bar- ACTION OF EJECTMENT. 58 In like manner the payment of interest upon n mortgage will prevent the statute from running against the mort- gagee, although he may not have been in possession of the lands for upwards of twenty years, because such possession is consistent with the original agreement of the parties.(r) .It seems as yet a very unsettled point, whether an en- croachment upon the waste adjoining to the demised pre- mises, by a lessee, and uninterrupted possession thereof by him for twenty years, shall give to the lessee a possessory right thereto, or whether he shall be deemed to have en- closed the waste, in right of the demised premises, for the benefit of the lessor after the expiration of the term. Lord Kenyon, C. J., .Lee, C. J., and TJiompson, B., have held that the encroachment belongs to the lessee, whilst, on the other hand, Heath, J., Buller, J., Perryn, B., and Graham, B.. have held that the landlord is entitled to it.(s) But, at all events, it seems clear, that such possession will be adverse to the rights of the commoners, and, indeed, to the lord himself, excepting as landlord at the expiration of the lease.(<) (r) Hatcher v. Ftneitr, Lord Raym. nor, v. Dane*, 1 Esp. 461. Bryan, 4. 740. Child, v. H'inwood, 1 Taunt. 208. () Doe, d. Colclough, r. Mullincr, (t) Creadi v. Wilmot, 2 Taunt. 160, 1 Esp. 460. Creach v. Wilmot, 2 (tnno/u.) Taunt. 160, (in notis.) Doe, d. ChaU- red by the length of time, during which he has been out of possession. 3 Johns. Ch.ui. Rep. 216. Decouehe v. Saretier. Trusts are not strictly within the statute of limitation!), but equity has wisely adopted the principle of the act. IFo//ace v. Dujfidd, 2 Serjeant L Rawle's Reports, 527. Possession of the eestui qut tnut, is not adverse to the title of the trustee. Smi//i v. King, 16 East, 283. 54 OF THE TITLE NECESSARY IN THE It should, however, be observed, that although twenty years peaceable possession will undoubtedly be a good title against the lord, qua lord, if the possession were, in the first instance, taken in defiance of him, and no acknowledgment at any time afterwards made, yet, that if the possession be at first by the lord's permission, or the party subsequently make an acknowledgment that the lands were originally go taken, the statute will never run against the lord ; for the possession of a tenant at will, for ever so many years, is no disseisin.(w)[6] Thirdly, an adverse possession will be negatived when the party claiming title has never, in contemplation of law. been out of possession. Thus, when A. devised lands to 12., and his heirs, and died, and B. died, and the heir of B., and a stranger en- tered and took the profits for twenty years, upon ejectment brought by the devisee of the heir of D. against the stranger, it was held that this perception of the rents and profits by the stranger was not adverse to the devisee's title ; because, when two men are in possession, the law adjudges it to be the possession of him who hath the right : the lessor of the plaintiff, and the defendant, were not tenants in common, for the defendant was a mere stranger ; and, though he took () B. N. P. 104. [6] A purchaser at sheriff's sale, becomes quasi tenant, and is not presumed to hold adversely. Jackson v Graham, 3 Caines' Rep. 188. The possession of a defendant after a sale, undr an execution, can in no sense be deemed adverse to the purchaser, for he is quasi tenant at will, un- til an actual disseisin , or disclaimer, ou bis part. Jackson v. Sternbergh, 1 Johns. Cas. 163. ACTION OF EJECTMENT. 55 a moiety of the profits, that would not make him a tenant in common ; for a man cannot disseise another of an undi- vided moiety, as he may of such a number of acres.('p) From the principle that the possession of one joint tenant, parcener, or tenant in common, is prima facie the possession of his companion also,(z) it follows, that the possession of the one can never be considered as adverse to the title of the other, unless it be attended by circumstances demon- strative of an adverse intent ; or, in other words, whenever one joint tenant, tenant in common, or parcener, is in pos- session, his fellow is, in contemplation of law, in possession also ; and it is necessary to prove an actiial ouster, to rebut this presumption.[7] Some ambiguity, indeed, seems formerly to have prevail- (r) Reading v. Rawsterne, Ld. Raym. v. Dale, Hob. 120. Doe, d. Barnel, 829. v. Keen, 7 T. R 386. (it) ford v. Gray, Salk. 286. Smalu [7] Where A. was tenant in common of a lot, with eight others, and con- veyed the whole lot to B., (stating himself to be the owner of the whole,) and B. conveyed the whole lot to C., who entered into possession, it was held, that the doctrine relative to the possession of tenants in common did not apply, and that the possession of C. was adverse as to the whole lot ; that deeds, exe- cuted by the eight co-tenants to D., subsequent to the conveyance to C., were inoperative and void ; and that releases, by the eight co-tenants to A , subse- qnent to their deeds to D., enured to the benefit of C. Jackson v. Smith, 13 Johns. 4116. A person who has entered, by permission of one tenant in common, can- not (a partition having been made) set up a title adverse to the other co-tenant. Jackson v. Creed and Kellogg, 13 Johns. 116. Where adverse possession is relied on, plaintiff may show that defendant entered, claiming to be tenant in common with the plaintiff', without being obliged to admit the fart, that defendant was, iu tact, a tenant in common with plaintiff. Smith T. Bvrtis, 9 Johni. 174. /k> OF THE TITLE MCCESSARY IN THE od, as to the meaning of the word actual ouster, as though it i^Miiied some act accompanied by real force ;\x) but it is now clear, that an actual ouster may be inferred from cir- cumstances, which circumstances are matter of evidence to be left to the jury. Thus, thirty-six years sole and uninter- rupted possession by one tenant in common, without any ac- eount to, demand made, or claim set up by, his companion, was held to be sufficient ground for the jury to presume an actual ouster of the co-tenant, and they did so presume. (y) So, also, if upon demand by the co-tenant of his moiety, the other refuse to pay, and deny his title, saying he claims the whole, and will not pay, and continue in possession, such possession is adverse, and ouster enough. (z) And, in like manner, where there were two joint tenants of a lease for years, and one bade the other go out of the house, and he went out accordingly, this was held to be an actual ouster.(a) Upon the same principle, although the entry of one is, generally speaking, the entry of both, yet if he enter claim- ing the whole to himself, it will be an entry adverse to his companion. (6) But where there was no circumstance to induce a supposition of an actual ouster, but a bare per- ception of the profits by one tenant in common for twenty- six years, the possession was held not to be adverse. (r) And where a tenant in common levied a fine of the whole premises, and afterwards took all the rents and profits for (x) Fairdaim, d. Fotc/er, v. Shack- 217. Doe, d. Hdlings, v. Bird, 11 fcton, Burr. 2604. East, 49. (y) Doe, d. Fiihar, T. Proaer, Cowp. (a) Vin. Ab. v. 14. 512. 217. (6) Vin. Ab. 14. 612. (3) Doe, d. Fishar, v. Prosxr, Cowp. (r) Fairrtmm, d. Fmeler, \. Shad-- Itton, 5 Burr. 2604. ACTION OF EJECTMENT. 57 lour or five years, but it did not appear that he held adverse- ly at the time of levying the line, it was held that such line and receipt were not sufficient evidence of an ouster of his companion. (r/) If, however, in cases of joint tenancy, &c. there be suf- ficient evidence of an actual ouster, the statute will run "as in other cases. Upon the principles here established, the possession of one heir in gavelkind is not the possession of the other, if he enter with an adverse intent to oust the other.(e) Fourthly, when the possessor has acknowledged a title in the claimant. Thus, where a lease for a long term had been granted, by the lord of the manor, to the rector, in which the lessee co- venanted for himself, his executors, and assigns, to pay, during the continuance of the term, a certain annual rent, and also all the tithe straw of wheat and rye within the pa- rish, and the lessee and his assigns (the succeeding rectors) continued in possession for twenty years and upwards after the expiration of the term, without payment of rent, but during that twenty years suffered the heir of the lessor to take the tithe of the wheat and rye straw ; it was held, that such sufferance was evidence of an agreement between the lessor and lessee, or their heirs and assigns respectively, that the lessee, or his assigns, should continue his posses- sion, if the lessor, and his heirs, were permitted to receive (J) Peaceable, d. Hornblowcr, v. ry v. Windsor, 2 Atk. 630, 632. Read, 1 East, 6<>8, 574. .Serf rtrfe Mo- (e) Davenport v. Tyrrell, Black. 675. 8 58 OF THE TITLE NECESSARY IN THE the tithe as hefore, and that, consequently, there was no ad- verse holding in the assignee of the lessee.(/)[8] (/) Roe, d. Pellat, v. Ferrars, 1 Bos. and Pull. 542. [8] The repeated application of the defendant to the plaintiff, to purchase the premises, affords a strong presumption that he caine in possession under the plaintiff. Jackson \. Cray, 12 Johns. 427. Where the defendant's entry was without any claim or colour of title, hig pos- session will he adjudged to be in subservience to the legal owner. The statute will not begin to run until his possession is avowedly adverse. Jackson v. Par- ker, 3 Johns. Cas. 124. Jackson v. Sharp, 9 Johns. 163. When such person acquires what he considers a good title, and no privity exists between him and the real owner, from that moment his possession be- comes adverse. Jackson v. Thomas, 16 Johns. 293, 301. A person entering under a lease for three years, and holding over for more than forty years, does not, thereby, gain a possession adverse to his lessor ; and a person coming in under the lessee, will be considered as holding under the same title. Brandter v. Marshall, 1 Caines' Rep. 394. Where A. went into possession of land, under an agreement made with B., for the purchase, and C. afterwards took possession, und^r an agreement with A., for the purchase, the possession of C. was held not to be adverse to the title of B. Jackson v. Bard, 4 Johns. 230. A. entered into possession of lands without title, and afterwards entered into a contract with T., who covenanted to give him a deed ; A. assigned the con- tract to S., who took possession, and received a deed from T., aiid afterwards a deed from B., the true owner and patentee. It was held, that the original possession of A., being without title, was to be deemed the possession of B., the patentee, and that the possession of S., under the covenant from A. to S., was not adverse. Jackson v. Sharp, 9 Johns. 163. A. enters on land in 1770, and in 1786 receives a deed from his father and mother, which was not acknowledged by the mother, to whom the title be- longed by inheritance; it was held, that the acceptance of the deed was suf- ficient to repel parol evidence, that A. entered adversely to his mother's title, and that had the possession previously been adverse, it ceased to be so on ac- cepting the deed. Jackson v. Sears, 10 Johns. 435. Possession of the mortgagor is not adverse to the mortgagee. Higginton v. Mein, 4 Cranch, 415. But where more than forty years had elapsed after the execution of a mort- gage, and neither the original deed, nor the collateral security, were produced, these circumstances afforded a sufficient presumption that the money had been paid. Inches v. Leonard, 12 Mass. Rep. 379. ACTION OF EJECTMENT. 59 To enable a party to take advantage of the extension of time granted by the second section of this statute, it is ne- cessary that the disability to enter should exist at the time when his title accrued ; for if he had the power to enter, but for an instant, no subsequent disability will be sufficient to arrest the operation of the statute. [9] And the princi- ple is the same where a disability, existing at the time of the commencement of the title, is afterwards removed, and a subsequent disability ensues ; the statute continuing to run, notwithstanding the second disability. It was once, indeed, endeavoured to distinguish between cases of volun- tary and involuntary disability in this respect, and to main- tain that an involuntary disability, as insanity, occurring after the statute had begun to run, would suspend its pro- gress, but the argument was overruled, upon the principle that a different construction had always been given to all the statutes of limitations, and that such nice distinctions would be productive of mischief. (g) It was said, by Lord Chancellor Hardwicke, that if a man, both of non-sane memory and out of the kingdom, come into the kingdom, and then go out of the kingdom, his non- sane memory continuing, his privilege, as to being out of (g) Doe, d. Duroure, v. Jones, 4 T. Plow. 366. R. 300 ; et tide Stowell v. Ld. Zoueh, [9] So, where a tide accrued to an infant female, who afterward* married, he must commence her ejectment within ten years after coming of age, pro- Tided twenty years have elapsed since the death of the person last seised. Demurest v. Wynkoop, 3 Johns. Chanc. Rep. 129. If adverse possession begins to run during the life of the ancestor, the in- fant heir it not protected by disability. Jackson v. Moore, 13 Johns. 513. Jackton v. Robins, 15 Johns. 169. 60 OF THE TITLE NECESSARY IN THE the kingdom, is gone ; and his privilege, as to non-sane memory, will begin from the time he returns to his senses.(A) When the ancestor, to whom the right first accrues, dies under a disability, which suspends the operation of the sta- tute, his heir must make his entry within ten years next af- ter his ancestor's death, provided more than twenty years have elapsed from the time of the commencement of the ancestor's title, to the time of the expiration of the ten years, (t) It was once, indeed, contended that the meaning of this second section of the statute was, to allow every person at least twenty years after their title accrued, if there were a continuing disability from the death of the ancestor last seised, and ten years more to the heir of the person dying under a disability, which ten years were in addition to the twenty years allowed by the first clause. But it was justly observed by the court, that if this construction obtained, there was no calculating how far the statute might be car- ried by parents and children dying under age, or continu- ing under other disabilities in succession ; that the word death, in the second clause, meant and referred to the death of the person to whom the right first accrued, and was pro- bably introduced in order to obviate the difficulty which had arisen in the case of Stowell v. Lord Zouch,(j) upon the construction of the statute of fines, from the omission of that word ; and, that the statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have ten (ft) Sturt v. MelliA, 2 Alk. 610, 614. (/) Plow. 366. ft) Doe, d. George, v. Jeaon, 6 East, 80. ACTION OF EJECTMENT. 61 years from the death of his ancestor, to whom the right first accrued during the period of disability, and who died under such disability, notwithstanding the twenty years, from the first accruing of the title to the ancestor, should have before expired.()[l] Having thus discussed the general principles of the action, that a claimant in ejectment must have both the legal and possessory title, the particular persons, who, by reason of their estate and interest in the lands, are entitled to this action, must next be considered ; remembering al- ways, that a right of entry or possession is supposed to ac- company their legal title. 1. TENANT FOR YEARS FOR LIFE IN TAIL OR IN FEE. It has been said by a learned writer, that a tenant for years cannot before entry maintain an action of trespass, or ejectment ; because those acts complain of a violation of the possession, and therefore cannot be maintained by any per- son who has not had an actual possession ;(/) but this rea- soning does not seem applicable to the modern principles of the remedy by ejectment. (m) (i) Doe, d. George, v. Jcsson, 6 (m) Goodrighl, d. Hare, v. Calor, East, 80, Doug. 477. 486. (0 1 Cru. Dig. 248. et vide 4 Bac. Ab. 183. [1] This question is most ably discussed, and the English and American decisions reviewed, by Chancellor Kent, in Demarest v. Wynkoop, 3 Johns. Chanc. Rep. 129. In that case it was decided, that the construction of the statute was the ) If the mortgagee assign the mortgage, and the assignee assign to another, the last assignee may maintain eject- ment for the mortgaged premises. (q) If there be two several mortgagees of the same lands, the mortgagee who has the legal estate will be entitled to recover in an ejectment against the other mortgagee, al- though his mortgage be posterior in point of time. As, where a term had been created to attend the inheritance, and the lands were afterwards mortgaged to A., who took no assignment of the term, but had possession of the other title-deeds, and the same lands were subsequently mort- gaged to J5., who took an assignment of the term, it wag held that B. might recover the possession against .tf. (n) Doe, d. Da Cotta, v. JVharton, (p) Thunder, d^Weaver, v. Belcher, 8T. R. 2. 3 East, 449. * (o) Keech, d. Warne, v. Hall, Doug. (?) Smartte, v. Williams, Salk. 245. 21. (r) Goodlitle, d JVorru, v. Morgan, 1 T. R.755. [2] A mortgage not registered has a preference over a subsequent judg- mont docketed, for the statute provides only for subsequent mortgages, and ACTION OF EJECTMENT. 63 3. LORD OP A MANOR. When the tenant of copyhold premises has committed an act by which he forfeits his lands, he who is lord at the time /until f:;liati<'s case, Owen, 17. (.T) Stephen*, T. Eliot, Cro. Eliz. Ecutcourt v. Wetki, 1 Lut. 7S# 803 9 66 OP THE TITLE NECESSARY IN THE As the surrcndcr(y) and admittance to copyhold lands make but one conveyance,^) the legal title does not vest in the surrenderee until after admittance : but, when the admittance has been made, the title relates back to the time of the surrender, against all persons but the lord ; and, therefore, a surrenderee may recover in ejectment against his surrenderor, or a stranger, upon a demise laid between the times of admittance and surrender, provided the ad- mittance be made before the time of the trial.(a) Ashurst, J. in delivering the judgment of the Court in this case, was of opinion that the surrenderee might main- tain ejectment against his surrenderor on such a demise, although not admitted before the trial, because the surren- deror is but a trustee, to his surrenderee ; but it should seem, since the legal estate remains in the surrenderor until the time of admittance, that this doctrine is not applicable to the present principles of the action.(^) (y) In the case of Doe, d. Worry, tance inserted in the Society's books, v. Miller, (1 T. R. 393.) it was endea- It is, therefore, evident, that, after voured to assimilate to copyhold the first surrender, the leral estate principles, the practice of the Socie- always remains in the Treasurer and ty of New Inn, in granting out their Ancients, as trustees fr the subse- chambers for lives. It is customary quent transferrees respectively, and with that society, in such grants, to that the terms sitiretidtr and adtnit- insert a clause, that the tenant shall tance bear not the siightcst resem- not sell or assign, without the license blance in their meaning, to the of the society, and for the grantees, surrender, and admittance to copy- when they wish to transfer their in- hold premises. terest, to surrender the chambers (s) Roe, d. Jejfercys, v. Hicks, 2 (upon a proper deed stamp) to the Wils. 13. 15. Treasurer and Ancients, to the intent (a) Holdfast, d. Woijllamt, v. Clap- that they shall grant the said cham- ham, 1 T. R. 600. Doe, d. Berming- bers to the transferee ; which sobse- ton, v. Hall, 16 East, 208. quent grant was never in point of fact (6) Doe, d. Da Costa, v. Wharton, made, bnt simply an mtry of admit- 8 T. R. 2. B. N. P. 109. ACTION OF EJECTMENT. 67 The heir to copyhold lands may, however, maintain eject- ment before admittance against a stranger who obtains pos- session of the land ;(c) for his title is complete against all the world, except the lord, immediately upon the death of the ancestor.(^) But if the lord seize the land, upon the ancestor so dying, and the heir bring an ejectment against him for the seizure, it will be necessary to shew that he has tendered himself to be admitted at the lord's court, or that the lord has dispensed with such tendcr.(e) Where the devisee of a customary estate, which had been surrendered to the use of the will, died before admit- tance, it was holden that her devisee, though afterwards admitted, could not recover in ejectment ; for the admit- tance of the second devisee had no relation to the last legal surrender, and the legal title remained in the heir of the last surrenderor. 5. LESSEE OF A COPYHOLDER. If a copyholder, without license, make a lease for one year, or with license, make a lease for many years, and the lessee be ejected, he shall not sue in the lord's court by plaint, but shall have an ejectment at the common law ; because he has not a customary estate by copy, but a war- rantable estate by the rules of common law.(g) 6. WIDOW FOR HER FREE-BENCH. (c) Roe, d. Jeffereys, v. Hicks, 2 (/) Doe, d. Vtrnon, v. Fmum, 7 U'iU. 28. East, 8. (<0 Rex v. Rennett, 2 T. R. 197. (g) Co. Copy. s. 6. Goodwin r. Long (e) Doe, d. Burrell, \. Bellamy, 2 hunt, Cro. Elis. 636. Maul, and Scl. 87. 68 OF THE TITLE NECESSARY IN THE When there is a custom in a manor, that the widow shall enjoy, during her widowhood, the whole, or part of the customary lands, wherewith her husband died seised, as of free-bench, she may, after challenging her right, and pray- ing to be admitted. (A) maintain ejectment for them without admittance, even against the lord ; because it is an excres- cence, which, by the custom and the law, grows out of the estate. (?) But if the widow's claim be in the nature of dower, an ejectment will not lie before assignment,^') but she must levy a plaint in the nature of a writ of dower, in the lord's court. 7. GUARDIAN isr SOCAGE,(&) or TESTAMENTARY GUAR DIAN, appointed pursuant to the statute 12 Car. II. c. 24. s. 8.(0[3] But a guardian for nurture cannot maintain ejectment, for he cannot make leases for years, either in his own name, or in the name of the infant ; because he has only the care of the person, and education of the infant, and has nothing to do with the lands merely in virtue of his office.(w) (It) Doe, d. Burred, v. Bellamy, 2 (,'.-) Liu. sec. 123, 124. Wade v. Maul, and Sel. 87. Coir, Ld. Raym. 130. (t) JunLin v. Stone, Hutt. IS. Ho- (/) Bedell v. Constable, Vaugh. 177. ward v Bnrlfetl, H ;l>. 1HI. Doe t d. Parry, v. Hodgson,? Wils. 129. (f) Chapman v. Sharpc, 2 Show. 134. (m) Ralcli/e't case, 3 Co. 37. [3] A guardian in sooage lias the custody of the land, and is entitled to ihc profits in the name of the heirs. He has an interest in the estate, may le;ise it, avow in his own name, anil bring trespass. J>yrnt v. Van Hoesen, 5 Johns. 66. 1 Johns. 163. 7 Johns. 153. ACTION OF EJECTMENT. 69 8. INFANT. (n) It is difficult to discover any principle upon which hoth infant and guardian can have the power of maintaining ejectment for the same lands, unless, indeed, the power of the infant be limited to those cases, in which no testa- mentary guardian has been appointed, and the infant is either above the age of fourteen years, or, being under that age, has had no person to take upon himself the office of guardian in socage. No case, certainly, can be found, in which this distinction has been taken, but it is not incon- sistent with the doctrine respecting guardians in socage, and accords most fully with the established principles of the action of ejectment. 9. ASSIGNEE OP A BANKRUPT.(O) As all the bankrupt's property, real and personal, is rested in the assignees by the statute 13 Eliz. c. 7. s. 1, 2. it follows, of course, that they must be invested with all the power necessary to obtain possession of it ; and the gene- ral assignment gives them a title to all the leaseholds (ex- cept for lives) belonging to the bankrupt, whether the same be in his possession at the time of the bankruptcy, or ac- quired by him afterwards. But with respect to the free- hold lands of the bankrupt, they do not pass by such assign- ment, but must, by the provisions of the statute of Eliza-' beth, be conveyed by the commissioners by deed indented and enrolled : and until the enrolment, as well as the bar- gain and sale, is completed, the assignees cannot maintain (n) Rudtton v. Votes, March. 141. (o) Beck, d. Hawkint, r. JTelih, 1 Zouch v. Parsons, Burr. 1704. 1806. Wils. 276. JYbfre v. Wimlham, Stran. 694. Mad- .'Ion, d. Baker, T. White, 2 T.R. 169. OF THE TITLE NECESSARY IN THE ejectment. The bargain and sale, also, only affects the lands to which the bankrupt is entitled at the time of it? execution : if he acquire any future real estates, there must be a new bargain and sale to vest the legal estate in the assignees, (p) 10. CONUSEE OP A STATUTE-MERCHANT OR STAPLE,^) 11. TENANT BY ELEQIT. It is laid down in the case of Lowthal v. Tomkins,(r) that if a tenant by elegit desire to obtain actual possession of the lands, he must bring an ejectment ; for the sheriff, under the writ, delivers only the legal possession ; which doctrine is recognized by Lord Kenyan, C. J., in the case of Taylor v. Cole ;(s) but in the case of Rogers v. Pitcher,(t) it is said bj Gibbs, C. J. " I am aware that it has, in several places, been said, that the tenant in elegit cannot obtain possession without an ejectment, but I have always been of a different opinion. There is no case in which a party may maintain ejectment, in which he cannot enter. The ejectment sup- poses that he has entered ; and that the lessor may do it by another, and not enter himself, is not very intelligible. I would not, however, consider the present case as now de- ciding these points, which I only throw out in answer to the argument that has been used."(<)[4] (p) Ex partc Proudfoot, 1 Atk. 262. (r) 2 Eq. Ca. Ab. 380. Esp. N. P. 431. (a) 3 T. R 295. (q) Co. Litt. 42. a. Hammond v. (t) 6 Taunt. 202. Wood, Salk. 563. [4] A purchaser, under a fieri facias, has no right to enter, unless the pro. inises are vacant, but must resort to ejectment. People v. Nelson, 13 Johns. 340. A seizure of lands by a sheriff, under a fieri facias, does not divest the title ACTION OF EJECTMENT. 71 When a tenant in possession claimed under a lease granted prior to the date of the judgment against his lessor, of the debtor, until a sale and deed delivered, ' and parchase money paid. Catliii v, Jackson, 8 Johns. 520. A sheriff's deed relates back to the time of sale, though not executed until nfterwiixU Jackson v Dicbenson, 16 Johns. 309. No estate passes to the purchaser at sheriff's sale, without a deed, or note in writing, which must specify the lands sold, and who was the purchaser. Jack- tnr Gatlin, 2 Johns. 248. No property passes at a sheriff's sale, except what is ascertained and des- cribed at t!ie time. Jackson v. Striker, I Johns Cas. 284. And a subsequent deed, founded on the antecedent execution and sale, will not pass land, unless included hi the description of the premises conveyed by the first deed. Ibid. A sheriff's deed, describing lands, as " all the lands of the defendnnls in the Ilurdenbrrgh patent," is void for uncertainty. Jackson v. Rosecelt, 13 Johns. 97. Jackson v. Detancey, 13 Johns. 651. A sale to a bonafide purchaser, will not be defeated by error or irregularity in the judgment, or execution, or on the ground that no levy was made until after the return day. Jackson v. Rosevell, 13 Johns, 97. An incorrect return to tt.ji.fa., by a sheriff, does not affect the title of the purchaser. Jackson v. Sternbergh, 1 Johns. Cas. 153. Where a judgment was filed, May 22d, and a ft. fa. directed the sheriff to levy of the lands of which defendant was seised on the 2J of May, it was held that this irregularity did not affect the title of a purchaser under theji.fu. Jackson v Davis, 18 Johns. 7 In this case there was a mistake by the clerk in filing the record. A deputy sheriff may sell lands and give deed. Ibid. The recital of the execution in the sheriff's deed is not necessary, and a mistake in the recital is immaterial. Jackson v. Pratt, 10 Johas. 381. An execution issuing after a year and a day, without a revival of the judg- ment, is voidable only at the instance of the party against whom it was iucd, and its regularity cannot be questioned in an action by the purchaser under thefi fa. Jackson v. Bartletl, 8 Johns. 365. 3 Lev. 403. 3 Caines, 273. The Supreme Court of Pennsylvania has decided, that a purchaser at she- riff's sale, to whom a deed has been made, will hold the land, notwithstanding the judgment be et aside for irregularity. Lessee of Heister v. Forlner, 2 Binney, 40. But it appears that the decision was founded on a statute. Ibid. 47. Where land is sold under a Ji. fa., and a deed is executed, a levy may b- presumed. Jackson v Shaffer, 11 Johns. 513. Parol evidence is inadmissible to show that an execution has hten with- 72 OP THE TITLE NECESSARY IN THE it was held that the tenant by elegit could not recover in ejectment ; because the lessee's title being prior in point of time, the legal estate was in him.(u) 12. PERSONAL REPRESENTATIVE.^) This right is, of course, confined to those lands which the testator, or intestate, held for a term of years ; but it is immaterial, whether the ouster be after, or before the death of the testator, or intestate. (w) Personal representatives may recover in ejectment under the statute 29 Car. II. c. 3. s. 12., appropriating estates (u) Doe, d. Da Cos/a, v. Wharton, (w) Slade't case, 4 Co. 92, 95 (a) 8 T. R. 2. Doe, d. Shore, v. Porter, 3 T.R. 13. (D) 4Edw.III. c. 7. drawn, and the levy abandoned, in contradiction to the sheriff's deed. Jack- son v. Vanderheytltn, 17 Johns. 167. and see Jackson v. Cray, 12 Johns. 427. In ejectment by a purchaser at sheriff's sale, he must produce not only the Ji.fa., and sheriffs deed, but also au exemplified copy of the judgment. Jack- son v. Hasbrouck, 12 Johns 213. A person in possession under a contract for a purchase, has an interest in the land which may be sold on execution ; the defendant becomes quasi te- nant to the purchaser,' and cannot object that he has no title. Jackson v. Scotl, 18 Johns. 94. A purchaser under sheriff's sale, of all the right of a mortgagor in posses- sion, is entitled to recover, though the mortgagee has been made co-defen- dant. Jackson v. Davis, 18 Johns. 7. AVherc plaintiff in a judgment covenanted not to sell in two years, the viola- don of this covenant i> no defence to an ejectment under a sheriff's sale. Ibid. \Vhcn the body i/l a (it U-miHin is taken iu execution, the lien of the judg- ment on the lands is su.:pr:> !. n il, ami, during his iinpr.sonment, n Ji.fa. issued upon a junior judgment, will gain priority and bind the lands. Jackson v. Benedict, 13 Johns. 533. By a recent statute of .New-York, passed April 12th, 1820, a purchaser, at sheriff's sale, is not cni'nli'd to a deed until fifteen mouths after the sale. The statute will be found in Appendix, No. 48. ACTION OP EJECTMENT. 73 held pur antre ri'e, where there is no special occupant. But this statute does not extend to copyholds, and, there- fore, one who was admitted tenant upon a claim as admi- nistrator de bonis non to the grantee of a copyhold pur autre vie, was not permitted to maintain ejectment. (x) 13. DEVISEE. Where the devise is of a freehold interest, the devisee may immediately, and without any possession, maintain ejectment for the lands devised ;(,y)[5] but if it be a legacy of a term of years, he must first obtain the assent of the executors to the bequest. (z) When, however, such assent is obtained, the legal estate vests absolutely in the legatee, and he may maintain ejectment against the executor, as well as against a stranger.(a) 14. GRANTEE OF A RENT-CHARGE, having power to en- ter upon the lands, if the rent be in arrear, and hold them until satisfaction. (6) (x) Zouch, d. Forse, v. Force, 7 (a) Doe, d. Lord Say and Sele, Y. East, 186. Guy, 3 East, 120. (y) Co. Litt. 240,(6). (6) Jtmott v. Cowley, 1 Saund. 112. (z) Young v. Holmes, Stran. 70. [5] It is a general rule of law, that on the death of a devisor, dying seised, the devisee is not seised until an entry is made, unless the tenements devised are vacant, and without an occupant. But, if a stranger in possession ac- knowledge the title of the devisee, it is equivalent to an actual entry. Wdlt T. Prince, 4 Mass. Rep. 64. If a devisee for life refuse to accept the estate devised, the remainderman thereby acquires an immediate right of entry, but he must enter within twenty years, for after that time he cannot enter during the life of a devisee, but he may enter et any time within twenty years after tht death gf the devisee ftr Hfe. Wtllt T. Prime, 9 M*s. Rep. 68. It 74 OF THE T1TLK NECESSARY IN THE These rights of entry are always taken strictly ; and. whero a man gave a leasehold estate by will to /?., his ex- ecutors, &c. subject to a rent-charge to his wife during her widowhood, with a power to the widow to enter for non- payment of rent, and to enjoy, &c. until the arrears were satisfied, and, in case of the widow's marriage, he willed that B. should pay the rent-charge to C., his executors, ad- ministrators, and assigns, it was holden that C.'s executors, after the widow's marriage, and C.'s subsequent death, had no right of entry for non-payment of the rent-charge. (c) 15. ASSIGNEE OP THE REVERSION, upon a Right of Re- entry for Condition broken.(rf ) By the common law, no one could take advantage of a condition, or covenant, but the immediate grantor, or his heirs ; a principle consistent with the old feudal maxims, but highly injurious to the rights of grantors, when the practice of alienating estates became general, and leases for years a valuable possession. To remedy this evil, it is enacted by the 32 Hen. VIII. c. 34. that the grantees, or assignees of a reversion shall have the same rights and ad- vantages, with respect to the forfeitures of estates, as the heirs of individuals, and the successors of corporations, had until that time solely enjoyed ; and this statute is made most general in its operation, hy particularly including the grants from the Monarch of those lands, which had then recently become the property of the Crown by the dissolu- tion of the monasteries. The words of the statute grant the privilege of re-entry (c) HaueU, d. flocfan, v. Gmelh- (<*) 32 Hen. VIII. c. 34. waite, Willes, 500. ACTION OF EJECTMENT. 75 to the assignees " for non-payment of rent, or for doing waste, or for other forfeiture ;" but these latter words have been limited in their interpretation to " other forfeiture of the same nature," and extend to the breach of such condi- tions only, as are incident to the reversion, or for the benefit of tho estate. Thus, the assignee may take advantage of covenants for keeping houses in repair, for making of fences, scouring of ditches, preserving of woods, or such like,(e) but not of collateral covenants, as for the payment of a sum in gross, or for the delivery of corn, or wood ; and it has upon this principle been doubted, whether the assignee can re-enter, if the lessee break a covenant not to assign without license. (f) The assignee of part of the reversion in all the lands demised, is an assignee within this statute, but the as- signee of the reversion in part of the lands is not ; for the condition being entire, cannot be apportioned by the act of the parties, but shall be destroyed. If, therefore, A. be les- see for years of three acres, with condition of re-entry, and the reversion of all the three acres be granted to B.for life, or for years, B. can take advantage of the breach of the condition ; but if a reversion of any nature whatsoever, even in fee, of two acres only, be granted to B., he can- not.fe) A cestui que use, and bargainee of the reversion, are within this statute, because they are assignees by act of the party ; but it does not extend to persons coming in by act of the law, as the lord by escheat ;(/i) nor to an assignee () Co. Litt. 215,(i). () Co. Litt. 215,(a). (/) Lucas T. How, Sir T. Ray, 260. (A) Co. Litt. 215,(a). 76 OF THE TITLE NECESSARY IN THE by estoppel only ;(i) nor to one who is in of another's estate ; and. therefore, if the reversion, expectant on the determination of the term, be merged in the reversion in fee, the reversion is no longer within the statute. (j) This statute is held not to extend to gifts in tail//:) but copyhold lands are within its intention and equity. (/) 1C. ONE HAVING HAD AN ADVERSE POSSESSION FOR TWENTV YEARS. An adverse possession for twenty years is not only an available defence to the party, whilst he continues in pos- session, but it gives him (unless affected by some of the exceptive provisions in the statute of limitations(m) ) a complete possessory right to the lands, and is a sufficient title to enable him to maintain an ejectment, against any person who ousts him after the expiration of the twenty years. (n)[6] (f) Awder \. Noke.s, Moore, 419. (/) Glover v. Cope, Carth. 205. (j) Threr v. Barton, Moore, 94. (m) Ante, 46. Chaworth v. Philips, Moore, 876. (n) Slacker v. Barney, Ld. Raym. Webb v. Russell, 3 T. It. 393. 401. 741. (*) Co. Litt. 215,(a). [6] A right of entry can also be gained by a prior possession, though short of twenty years. The law, on this subject, is thus laid down by Kent. C. J., in the case of Smith v. Lorillard, 10 Johns. 356. " That the first possession, " when no evidence of title appears on either side, should be the better evi- " dence of right, seems to be the just and necessary inference of law. The " ejectment is a possessory action, and possession is always presumption of' " right, and it stands good until other and stronger evidence destroys that pre- " sumption. This presumption of right every possessor of land has, in the < ( first instance, and after a continued possession for twenty years, the actual " possession ripens into a right of possession, which will toll an entry. Bu {: until the possession of the tenant has thus become matured, it would se>m ACTION OF EJECTMENT. 77 It seems, also, from a recent decision, that this doctrine holds between the party having had the adverse possession " to follow, that if the plaintiff shows a prior possession, and upon which the " defendant entered, without its having been formerly abandoned, as derelict, " the presumption, which arose from the tenant's possession, is transferred to ' i!ir prior possession of the plaintiff, and the tenant, to repel that presump- " tion, must show a still prior possession, and so the presumption may be re- *' moved from one side to the other, lolies quolits, until one party or the other " has shown a possession that cannot be overreached, or puts an end to the w doctrine of presumption, founded on a mere possession, by showing a regu- " lar title, or a right of possession." In this case, therefore, it was decided* that a prior possession, under a claim of right, for a less period than twenty years, formed a presumption of title sufficient to put the tenant on his defence ; but it must appear, that Midi prior possession had not been voluntarily relin- quished w ithout the animus reeerlendi, and that the subsequent possession of the defendant was acquired by a mere entry, without any lawful right. Ibid. and Truesdale v. Jefferiet, 1 Caines' Rep. 190, m notis. Cro. Elis. 437. Bale, man v. Allen, 2 Saund. 3. Men v. Kivington. Woods v. Lane, 2 Sergeant &, Ra.vle, 53. Jackson v. Hasen, 2 Johns. 22. But where the plaintiff claims to recover on he ground of prior possession, that possession must be clearly and unequivocally proved, and the payment of taxes, and execution of partition deeds, arc not sufficient evidence of actual possession. Jackson v. Myers, 3 Johns. 388 and 396. In Jackson v. Diejfr'endorf, 3 Johns. 270. it was held, that an undisturbed possession for thirty-eight years, under a mistaken location, is conclusive evi- dence of title ; and although the lessor had been turned out of possession, by a recovery by default in ejectment, still he might recover on the strength of his previous possession ; that a recovery in ejectment does not prejudice the right ; if the person entering under it has a freehold, he is in as a freeholder , if he has no title, he is in as a trespasser ; and if he had no right to the pos- session, he takes only a naked possession, rftki/ns v. Horde, 1 Burr. 114. But this doctrine, to the extent as above stated, has been controverted by Chancellor Kent, in the Court of Errors of New- York, in the case of Jarkmn v. Itichtmyer, 16 Johns 326. " To assert," says he, " that a recovery in eject- " ment was of no manner of efficacy, except to change the possession for a " moment, and that the losing party might instantly turn round, and attack " the victor, by the mere force and presumption of the prior possession, is to ' render the action of ejectment perfectly absurd. There never could be a *' recovery iu ejectment, that did not irresistibly admit, that the lessor of the " plaintiff had a better right than the tenant to the existing possession. A re- " covery in ejectment does not injure the right, as it may be made to appear " afterwards, but it certainly does change the presumption of right, founded " on a mere prior possession short of twenty years." 78 OF THE TITLE NECESSARY IN THE for twenty years, and the legal owner of the lands, although the party having had the possession afterwards desert the premises, and the right owner peaceably enter thereon.(o) But, if the possession of the party be affected by any of the provisions of the second section of the statute of limi- tations ;(p) or, if the lands be the property of the Crown or the Church, the defendant may avail himself thereof, in answer to the claim arising from the adverse possession, without shewing any title in himself. If, indeed, the lands are Crown lands, and the claimant has been ousted by a wrong doer, after an uninterrupted possession for more than twenty years, a grant of them from the Crown will be presumed in his favour, unless the Crown is incapable of making such grant ; but if such incapacity exist, a grant of course cannot be presumed ; and no possession for less than sixty years will then be sufficient to enable him to maintain an ejectment. And, indeed, as the stat. 9 G. I. c. 16. only bars the suit of the Crown, after a continuing adverse possession for sixty years, but does not also give a title to the adverse possessor, it may be doubted whether any length of possession of Crown lands, not grantable by the Crown, will be a sufficient title to support an eject- ment.^) (o) Doe, d. Burrougk, v. Reade, 8 (9) Goodtille, d. Parker, v. Baldwin, East, 353. 11 East, 488. (p) Ante, 46. And where a party enters under a judgment in ejectment, and then con- veys, for a valuable consideration, to a third person, who enters under his deed ; such entry and possession afford as high and solemn pritna facie evi- dence of right, as can well be exhibited, and higher evidence of title, than a previous naked occupancy, though continued for a number of years. Jackson v. Riditmytr, in Sup. Conrt, 13 Johns. 307. ACTION OF EJECTMENT 1% 17. CORPORATION AGGREGATE, OR SOLE. It was formerly doubted, whether an ejectment could be maintained by the King, because an ejectment is for an injury done to the possession, and the King cannot be put out of possession. But this reasoning seems only to apply where the King is made plaintiff, and not where he is the lessor of the plaintiff; for it is the lessee, and not the les- sor, who, by the legal fiction, is supposed to be ousted ; and it is held, that where the possession is not actually in the King, but in lease to another, there, if a stranger enter on the lessee, he gains possession without taking the rever- sion out of the Crown, and may have his ejectment to re- cover the possession, if he be afterwards ousted ; because, there is a possession inpais, and not in the King, and that possession is not privileged by prerogative. Hence it follows, that the King*s lessee may likewise have an eject- ment to punish the trespasser, and to recover the posses- sion which was taken from him.(r) In cases, however, included in the stat. 8 Hen. VI. 16. and 18 Hen. VI. 6., which prohibit the granting to farm of lands, seised into the King's hands upon inquest before escheators, until such inquest shall be returned in the Chancery or Exchequer, and for a month afterwards, if the King's title in the same be not found of record, and avoid all grants made contrary thereto, the King cannot maintain an ejectment until all the previous requisites are complied with : for, even presuming the right and posses- sion to be in the Crown immediately on the death of the person last seised, the King has no power to grant the same until after office found, and, consequently, he must be con- (r) Paynt'i case, 2 Leon. 205. Let T. Abrru, Cro. Eliz. 331. 80 OF THE TITLE NECESSARY IN THE sideredto be himself in possession, and, therefore, unable to give a title to his lessec.(s) 18. RECTOR, OR VICAR, FOR TITHES. (<) The statute which gives this remedy for tithes, includes nly lay impropriators, leaving spiritual persons to pursue the old remedy in the Ecclesiastical Court; though the doc- trine has since been extended by analogy to tithes in the hands of the clergy. (M) But an ejectment for tithes can only be maintained against persons claiming, or pretending to have title thereto, and not against such persons as re- fuse or deny to set them out, which is called subtraction of tithes :(T) nor will it lie where the tithes are not taken in kind, but an annual sum is paid in lieu thereof.(zp) A parson cannot maintain ejectment for glebe land after sequestration, (x) 19. TRUSTEES. In all cases, in which the trusts are not executed by the statute of uses, the legal estate vests in the trustees, and, of course, in such cases, they may maintain ejectment. The principles upon which this doctrine is founded have already been discussed ;(^) and it, therefore, only remains (*) Doe, d. Hayne, v. ReJfcrn, 12 (r) 2 and 3 Edw. VI c. 13. a. 13. East, 96. (w) Dyer, 116, (/>). (I) Camtll v. Clavering, Ld. Raym. (j) Doe, d, Grundy, v. Clarke, 3 789. Campl). 447. (M) Co. Litt. 159. Baldwin v. Wine, (y) Ante, 32, 33. Gro. Car. 301. ACTION OF EJECTMENT. 81 to consider a few cases, in which the trustees have been held to take, or not to take, the legal estate. A distinction has been made, between a devise to a per- son in trust, to pay over the rents and profits to another,(z) and a devise in trust, to permit some other person to receive the rents and profits ; the legal estate, in the first case, being held to be vested in the trustee, and, in the latter, in the cestui que trust ; though, to use the words of Sir James Mansfield, C. J. in a recent case, "it seems miraculous, how such a distinction became established ; for good sense requires, that in both cases, it should be equally a trust, and that the estate should be executed in the trustee ; for how can a man be said to permit and suffer, who has no estate, and no power to hinder the cestui que trust from re- ceiving ?"() It has, indeed, in several cases, been argued, that a devise to trustees to receive the rents and profits, and pay them over, will not vest the legal estate in the trustees, unless something is- required of the trustees, which renders it necessary that they should have an interest in the lands, as to pay rates and taxes, &c.; but this doctrine has not yet been sanctioned by any decision of the Courts ; though, certainly, it has happened in all the latter cases, that the trustees have been required to do other acts, as well as pay the rents and profits. (6) In cases where it is necessary, for the purposes of the (z) Shep. Touch. 482. 1 Eq. Cas. (a) Doe, d. Leicester, v. Biggt, 2 Ab. 383, 384. Sliapland v. SmUh, Taunt. 109. 113. Brown, Chan. Cas. 75. SilrestRr, d. (6) Jones v. Ld. Say and Sele, 8 Law, v. Wilson, 2 T. R. 444. Jones v. Vin. Ab 262. Kenrick v. Ld Beau- Ld. Say and Sele, 8 Vin. Ab. 262. clerk, 3 B. b P. 175. Doe,d. Uallen, Broughton v. Langley, Salk. 679. 3. v. Ironmonger, 3 at, 633. C. 1 Lut. 814. Burchett v. Durdant, 2 Vent. 311. 11 82 OF THE TITLE NECESSARY IN THE trust, that the trustees should take the legal estate, it will be held to vest in them, though the devise be, that they suffer and permit the cestui quc trust to receive the rents and profits ; as where the trust was, that the trustees should permit a feme covert to receive and take the rents and pro- fits, during her natural life, for her sole and separate use, they were held to have the legal estate ; such construction being necessary to give legal effect to the testator's inten- tion, to secure the beneficial interest to the separate use of the feme covert.(c) And where lands were conveyed to trustees, and their heirs, in trust, that the trustees should, with the consent of A, sell the inheritance in fee, and ap- ply the purchase money to certain trusts mentioned in the deed, with a proviso, that the rents, issues, and profits, un- til the sale of the inheritance should be received by such person, and for such uses, as they would have been, if the deed had not been made ; it was held, notwithstanding the proviso, that the estate was executed in the trustees imme- diately, even before A. had given his consent to the sale ; and that it was not a mere power of sale annexed to the legal estate of the owuer.(d) In like manner, where the devise was to A., in trust, to permit and suffer the testator's widow to have, hold, use, occupy, possess, and enjoy, the full, free, and uninterrupted, possession and use of all interest of moneys in the funds, and rents and profits arising from the testator's houses, for her natural life, if she should remain unmarried ; and that her receipts for all rents, &c. with the approbation of any one of the trustees, should be good and valid, she providing for, and educating properly, the testator's children, and (c) Uarton v. Ilarton, 7 T. R. 652. (d) Keene, d. Lord Byron, v. Dear- don, 8 East, 248. ACTION OF EJECTMENT. 83 also paying certain annuities ; and in case the widow should marry again, then upon certain other trusts, it was held, that the use was executed in the devisees in trust, and upon this ground, that the testator, having made the approbation of the trustees necessary to the widow's receipts, showed that he did not intend to give her a legal estate ; and Gibbs, J. said, " The rule has been misconceived. Though an estate be devised to A. and his heirs, to the use of B. and his heirs, the Courts will not hold it to be an use executed, unless it appears, by the whole will, to be the testa- tor's intent that it should be executed. The Courts will ra- ther say the use is not executed, because the approbation of a trustee is made necessary, than that the approbation of a trustee is not necessary, because the use is executed. The very circumstance which is to discharge the tenants, is the approbation of one of the trustees. ' I leave my ' wife to receive the rents, provided there is always the ' control of one of the trustees upon her receipts.' The testator, therefore, certainly meant that some control should be exercised, and what could that control be, except they were to exercise it in the character of trustees ?"(e) Where certain freehold and leasehold premises were de- vised to trustees, their heirs, &c. " to permit and suffer the testator's wife to receive and take the rents and profits, until his son should attain the age of twenty-one," and the will contained also subsequent devises of other lands to the same trustees, upon trusts clearly not executed by the statute ; as, for the payment of debts, raising portions for younger children, &c. and immediately after the last of the different devises, a proviso followed, " that it should be lawful for the trustees, and the survivor, at any time or (e) Gregory r. Henderson, 4 Taunt. 772. 84 OF THE TITLE NECESSARY IN THE times, till all the said lands, &c. devised to them, should actually become vested in any other person, or persons, by virtue of the will, or until the same, or any part thereof, should be absolutely sold, as aforesaid, to lease the same, or any part thereof," it was holden, that the legal estate in the freehold lands contained in the first devise, vested in the widow, notwithstanding that leasehold premises were con- tained in the same devise, (the legal interest in which, of course, vested in the trustees,) and the subsequent leasing power given by the will ; because the leasing power either extended to none of the lands contained in the first devise, or to such of them only, as were originally vested in the trustees, (namely, the leaseholds,) " the trustees having no control over the lands in the first devise for any purposes of the testator's will."(f) Where the devise was, that the trustee should pay unto, or else, permit and suffer the testator's niece to receive the rents, the legal estate was held to be in the niece, because the words, " to permit and suffer," came last ; and, in a will, the last words prevail, though in a deed the first. (g) In a case, where the devise was, " I give and bequeath my real estates, lands, fyc. and also my personal estate, &c. to A. B., upon trust, to the intent, that the said A. B., his heirs, &c. shall first dispose of my personal estate, or so much thereof as shall be sufficient for that purpose, in pay- ment of my debts, &c. and as to all my real estates, -where- soever and whatsoever, subject to my debts, and such charge or charges as I may now, or at any time or times hereafter, (/) Knight, A, Phillips, v. Smith, livering the judgment of the Court in 12 East, 466. this case, said, the reason they assign- (g) Doe, d. Leicester, v. Biggs, 2 ed for their decision was given for Taunt. 109. Mansfield, ) Doe, d. Morris, v. Rower, 3 East, 16. [8J Where an award settles the boundaries of land, it is sufficient to enable the party to whom the land is awarded, to maintain ejectment. Sellick v. ddamt, 16 Johns. 197. Jackson v. Dt Long, 9 Johns. 43. An award of lands to one of the parties, will estop the other from setting up title to the land awarded. Shepard v. Ryers, 16 Johns. 497. The Supreme Court of Massachusetts have, however, decided, that when the owners of adjoining lands agree, in writing-, to have certain lines run by a urveyor, whose doings should be decisive,' the agreement and survey did not operate to pass the land, and did not preclude the party from showing, that his land extended beyond the line established by the surveyor. Whitnty r. HoliMt, 16 Mass. Rep. 152. [9] To these it may be added, that a fine, and five yean non-claim, are con- clusive evidence of title ; and a fine alone is sufficient to support an ejectment against a person entering during the five years, without title. Jackum r. Snulh, 13 Johns. 426. 12 90 CHAPTER IV. OP THE CASES WHICH REQUIRE AN ACTUAL ENTRY UPON THE LAND BEFORE EJECTMENT BROUGHT. WHEN an entry is required, only to complete the claim- ant's title, as when a power is reserved to him to re-enter for the breach of any condition of a lease, or grant, the com- mon consent rule will be sufficient to enable him to main- tain ejectment, without any actual entry upon the lands in dispute ; but when the entry is requisite to rebut the defen- dant's title, an actual entry upon them must be made, before the action can be supported. (w) Such, at least, is the prin- ciple laid down by Lord Mansfield ; but, the application of the latter part of it is now limited to cases where fines with proclamations have been levied ; for in all other cases the common consent rule to confess entry is sufficient ; and it may be doubted, whether the necessity of an actual entry, even when a fine with proclamations has been levied, does not arise from the construction given to the words of the statute of fines, (x) rather than from the general principle above mentioned. By that statute, it is enacted, that, when a fine is levied with proclamations, persons wishing to avoid such fine, must pursue their title, claim, or interest, by way of action, or lawful entry, within five years next after their title, claim, or interest, shall accrue ; or (provid- ed at such time they be under any legal disability) within (u>) Per Lord MarafieM, C. J., in (x) 4 Hen. VII. c. 24. Goodrifrht, d. Hare, r. Caltr, Doug. 47784. OF ACTUAL ENTRY. 91 five years next, after such disability shall cease ; and, as the action of ejectment was not used, at the time of the enact- ment of this statute, for the trial of titles, the word action'm it has been interpreted to extend to real actions only, and not to comprehend the remedy by ejectment. When, there- fore, a forfeiture is committed by the levying of a fine with proclamations, and the reversioner does not resort to a real action, it becomes necessary for him, if he mean to take ad- vantage of the forfeiture, to have recourse to the other method pointed out by the statute, that is to say, to make a lawful entry upon the land ; and, having made the lawful tntry, and thereby avoided the fine, an ejectment will afterwards lie for the recovery of the forfeited lands, in the same manner as if the tenai.t had forfeited his estate, by the breach of any condition annexed to his grant. This seems to be the true principle upon which an ac- tual entry is deemed necessary, when a fine with procla- mations has been levied ; and it is sanctioned by all the modern decisions, although a different doctrine was for- merly maintained. In 1703, it was declared by all the judges, (Price, B. excepted,) that, in case of a fine, there must be an actual entry ; and the two first decisions which are extant after this declaration, interpret the maxim to extend to fines generally, whether with or without procla- mations ; and consider the necessity of an entry, to arise from the puissance of a fine at common law, and not from the provisions of the statute of fines. (y) Berrington v. Parkhurtt, And. East, 489. Tapner, d. Peckham, v. 126 S. C. Stran. 1086. S. C. 13 Mtrlolt, Willes, 177. [1] It is settled, by repeated decisions for near a century, that the confes- sion of lease, entry, and ouster, is sufficient to maintain an ejectment for a condition broken ; and that an actual entry is not necessary to be shown, in any case, except to avoid a fine. Jackson v. Crytlcr, 1 Johns. CM. 126. 92 OF ACTUAL ENTRY. It is somewhat singular, that neither of these cases is noticed in any of the subsequent decisions by which they have been overruled ;(z) although, from the superiority of the modern doctrine, the omission can by no means be re- gretted. It is (to use Lord Mansfield* s words) " absurd to entangle men's rights in nets of form without meaning ; and an ejectment being a mere creature of the Court, framed for the purpose of bringing the right to an examination, an actual entry can be of no service. "(a) It was in one case held by the Court of King's Bench, at a trial at bar in ejectment, that where one had made an actual entry into the lands before any fine was levied, and brought his ejectment after, and laid the demise in the de- claration before the time of levying the fine, such entry was sufficient to entitle him to a verdict. It is difficult to discover the principle of this decision ; for it is evident, by the words of the statute, that an entry before the levy- ing of a fine, cannot avoid a fine afterwards levied ; and, if it be said, that the entry and demise, being before the levy- ing of the fine enabled the lessor to shew a good title at the time of the demise, and so prevented the defendant from giving the subsequent fine in evidence, there seems no reason why the same effect should not be produced, by simply laying the demise before the time of levying the fine, without making an actual entry, since it is clear, that an actual entry is never necessary but to avoid a fine. (4) (*) Oates, d. Wig fall, v. Brydon, (a) Goodright, d. flare, v. Color, Burr. 1895. Jenkins, d. Harris, v. Doug. 477. 85. Pritchard, 2 Wils. 45. Doe, d. Due- (b\ Musgrave, d. Hilton, v. Shelly, Jcett, v. Wattt, 9 East, 17. 1 Wils. 214. Reversions may maintain ejectment against tenant for years, who holds ver without proving an actual ouster. Barber v. Root, 10 Mass. Rep. 260. OP ACTUAL ENTRY. 93 A fine cannot be avoided by entry, except when the per- son who seeks to avoid it has a right to enter; for, if the right, of entry be taken away by the fine, and a right of action only remain, as if the fine operate as a discontinu- ance of the estate, a real action must be resorted to. Such is the case when a fine is levied by a tenant in tail.(c) But, if a tenant in tail, first alienate his estate by modes of conveyance, which transfer only the possession, and not the right of possession, as by bargain and sale, lease and release, covenant to stand seised, &c. and the grantee be seised by virtue of such conveyance, a fine levied after- wards by the tenant in tail, will not operate as a discon- tinuance of the estate-tail ; but the remainder-man, or rever- sioncr, after the death of the tenant in tail, without issue, may enter, provided his entry be made within five years next after his title accrues.(J) A fine levied by a tenant for life, operates as a forfeiture of his estate, and divests also the estate of the remainder- man or reversioner, leaving in him only a right of entry. An actual entry must, therefore, be made upon the lands, in order to- avoid such fine, before ejectment can be main- tained ;(e) and this entry may be made, and the ejectment brought, by the party next in remainder, either within five years next after the time when the proclamations upon the fine are completed, by reason of the forfeiture, or within five years after the natural determination of the preceding estate. When, also, there are several remainder-men in succession, the laches of one remainder-man will not pre- judice the others, but each remainder-man will be entitled to his right of entry within five years after his title accrues, (c) Doe, d. Odiarne, v. Whitehcad, (e) Doe, d. Compere, r. Hicks, 7 T. Burr. 704. R. 433. (rf) Seymour's caie, 10 Co. 96. Ante, 34, 35. 94 OP ACTUAL ENTRY. notwithstanding the laches of those who have preceded him. But this right can only be executed by the original remainder-men and reversioners, and will not pass by assignment or devise.(/) When a lessee for years makes a feoflment, and then levies a fine to his feoffee, an actual entry is necessary to avoid the fine,(g) and the reversioner may then likewise enter within five years next after levying the fine, or within five years next after the expiration of the term.(A) In a late case, where a lessee for years levied a fine with proclamations, after which, his lessor, without enter- ing upon the land, conveyed his reversion to a third person, who brought an ejectment for the forfeiture, Lord Ellen- borough, C. J., in delivering the judgment of the Court, said, that " they could not find any case which established a difference between tenant for life, and tenant for years, as to the necessity of an entry to avoid their estates, in case of a forfeiture incurred by the levying of a fine, but an en- try was necessary against both."(/) From the report of this case, it does not clearly appear, whether, by the en- try here spoken of, an actual entry is intended, or, whe- ther the Court only meant to say, that when a tenant for years levies a fine, his estate does not ipso facto cease and determine, but continues until re-entry, that is to say, until the reversioner brings an ejectment for the forfeiture. The latter, seems the more reasonable interpretation, (/) Goodright, d. Fowler, v. For- S. C. 1 Vent 241. S. C. Sir T. Raym. rester, 8 East, 652. 219. Vide cont. per Catline, J., Slo- (g) Hunt v. Bourne, Salk. 339 and well v. Z-ur/i, Plow. 374,(o). Pod- !he cases there cited. Pomfret v. Wind- ger's case, 9 Co. 106, (6). JOT, 2 Ves. 472. 481. (f) Fenn, d. Mathtws, T. Smart, 12 (h) Whaley r. Tankard, 2 Lev. 52. East, 444. OP ACTUAL ENTRY. 95 as it is difficult to discover upon that principle an actual entry is more necessary, when a forfeiture is incurred by a tenant for years by levying a fine, than when the forfeiture arises from the breach of any other condition. A fine by a tenant for years, is not within the provisions of the statute of fines. It does not, like the fine of a tenant for life, di- vest the estate of the reversioner : non-claim does not give effect to it : and, in fact, from the want of a freehold in- terest in the parties, the fine is wholly inoperative. (j) But the necessity of an actual entry, when a fine is levied, arises only from the operation of the statute of fines, and is merely for the purpose of revesting the estate which the fine has divested, and, therefore, must be altogether use- less in a case not within the statute, and where the estate of the reversioner is not affected by the fine. In confirma- tion also of this interpretation, it is laid down by Lord Kenyan, C. J., in Peaceable, d. Hornblower, v. Read,(k] that if a tenant for years levies a fine, no entry of the landlord is necessary, in order to enable him to maintain ejectment at the end of the term ; and, in a recent case, where a lessee, for the life of his lessor, continued in possession after his lessor's death, until his own death, without pay- ment of rent, after which his son took possession, and hav- ing kept possession for two years, without payment of rent, levied a fine with proclamations, the Court held, that no entry was necessary to avoid this fine, and Lord Ellen- borough, C. J., said " it surely needs not much labour to discover, that if the fine operates nothing, it cannot require an entry to avoid it."(/) (j) Shep. Touch. 14. and the etut* (k) 1 East, 66874. aUed in Hunt v. Bowrnt, 1 Salk. 339. (0 Doe, d. Bum//, r. Perkint, 3 941, note b. M.&S. 271. et vide 1 Saund. 319, (c) 96 OF ACTUAL ENTRY. As the possession of one joint tenant, parcener, or tenant in common, is, in contemplation of law, the possession of his companion also,(m) a line levied by a joint tenant, par- cener, or tenant in common, previously to an actual ouster of his companion, will not operate to divest his companion's estate ; and if the party so levying the fine afterwards actually oust his companion, an ejectment may be main- tained against him, without an actual entry into the lands.(n) In like manner, if one of two tenants in common of a re- version, levy a fine of the whole, an actual entry is not necessary by the other tenant to avoid it.(o) If all the proclamations have not been completed, the fine will only enure as a fine at common law, and no entry will be necessary to avoid \t.(p) When, also, a tenant for life does not levy, but merely accepts a fine, although such acceptance will create a forfeiture of his estate,^) yet, as the person who levied the fine had not any estate or interest in the lands, at the time of levying the fine, it neither alters the estate of the tenant for life, nor divests the remainder or reversion, and, consequently, no entry if necessary to avoid it.(r) The entry must be made by the party who claims the land, or by some one appointed for him ;(s) although if (he entry be made by a stranger, in the name of the person (m) Ford v. Gray, Salk. 285. S. East, 17. serf ride Tapner, d. Peek- C. 6 Mod. 44. Smalet v. Dale, Hob. ham, v. Aferloti, Willis, 177. 120. ( 9 ) Co Litt. 252,(a). (n) Peaceable, d. 'Hornblower, v. (r) Podgtr't cast, 9 Co. 106, (6). ttead, 1 East, 568. Green v. Proude, 1 Mod. 117. S. C. (o) Roe, d. Tnacott, v. Elliot, 1 S. 1 Vent. 267, 8. k B. 85. (3) Co. Litt. 258, (a). (p ) Doe, d. Duckett, v. Wattt, 9 ^ OF ACTUAL ENTRY. 97 who has the right, without any previous command from him, and he afterwards assent to the entry, within five years after the fine is levied, such entry will be sufficient.(0 If, however, the assent be not given within the five years, any subsequent assent will not avail ; for the statute of fines, being made for the purposes of repose and tranquil- lity, is always taken strictly.(w) But a guardian by nurture, or in socage, may enter in the name of his ward, without any command or assent, and such entry shall save his right. So, also, the remain- der-man, or reversioner, or lord of a copyhold, may enter in the name of the tenant for life, years, or copyholder; or these particular tenants in the name of the reversioner, or remainder-man ; or the lord, without any command or assent, on account of the privity between these persons. (v) So, likewise, an entry by a cestui que tmst will be sufficient, (zo) When one joint tenant, tenant in common, or parcener, enters generally into lands, it will be sufficient to avoid the effect of a fine as to his companion, from the principle be- fore mentioned, that the possession of one joint tenant, tenant in common, or parcener, is the possession of his companion also.(x) With respect to the mode of making the entry, it must (0 Co. Litt. 245, (a). Fiichtt v. (r) Podger't case, 9 Co. 106, (a). Mamt, Stran. 1128. (IT) Gree v. Rolle, 1 Ld. Raym.716. (u) Pollard v. Luttrell, Pop. 108. (x) Brook. Ab. Entre Can. 37. 1 S. C. Moore, 450. Dudley's case, Roll. Abr. 74O. Doe, d. (hll,r. Ptar- Moore, 457. Podger's case, 9 Co. ton, 6 Kast, 173. 106, (a). Audlty v. Pollard, Cro. Eliz. 561. 13 98 OF ACTUAL ENTRY. be upon the lands comprised in the tine ; for an entry into other lands, claiming those comprised in the fine, will not be sufficiently ) Thus, where a fine having been levied, the lessor of the plaintiff proved that, at the gate of the house in question, he said to the tenant, that he was heir to the house and land, and forbad him to pay more rent to the defendant, but did not enter into the house when he made the demand, it was agreed that the claim at the gate was not sufficient; but, as it appeared, that there was a court before the house which belonged to it, and that, though the claim was at the gate, yet that it was on the larld, and not in the street, the claim was holden good.(z) But if a person be prevented by force, or violence, from entering on the lands whereof a fine has been levied, he must then make his claim as near the land as he can ; which, in that case, will be as effectual, as if he had made an actual entry.(o) When all the lands lie in one county, the party may en- ter into any part of them, making a declaration in the name of the whole ; but if the lands lie in different counties, there must be separate entries for the several counties.(6)[2] (y) Focus v. Salisbury, Hard. 400. (a) Liu. s. 419. Co. Litt. 253, (6). (a) Anon. Skin. 412. (6) LitU s. 417. [2] An entry into part of a tract of land, claiming the whole, is equivalent to an eptry into the whole. Jackson v. Lunn, 3 Johns. Cas. 1 15. There must be an actual entry to avoid a fine, and the demise must be laid after the entry. Berrington v. Parkhursl, 2 Strange, 1086. An entry to avoid the statute of limitations, must be an entry for the pur- pose of taking possession. Jackson v. SeJioonmaJcer, 4 Johns. 390. 1 Burr. 120. 1 l.utw. 779. 2 Salk. 422. 7 East, 311. A person having title may enter peaceably, without judgment or suit, and having so entered, his possession enures according to his title. Jackson v. Hun- land, 13 Johns. 235. ' OF ACTUAL ENTRY. 99 The entry must also be made ammo clamandi, with an intention of claiming the freehold against the fine ;(c) and, therefore, when, upon a special verdict in ejectment, it was found that a fine had been levied of the premises, and that the lessor of the plaintiff entered upon the pre- mises, with intent to make the demise in the declaration mentioned, but not for the purpose of avoiding the fine, it was held that such entry was not sufficient. (d) By the statute 4 Anne, c. 16. s. 16. it is enacted, that no claim or entry, to be made upon any lands, &c. shall be of any force to avoid a fine levied with proclamations according to the statute, or a sufficient entry within the sta- tute of limitations ; unless, upon such entry or claim, an action be commenced within one year after the making of such entry or claim, and prosecuted with effect ; and, there- fore, if the claimant fail in the ejectment brought in conse- quence of the entry, and have not time to commence a second ejectment within twelve months after the making of the entry, a second entry must be made. But if the actual entry be once made, and the claimant proceed to execution, in an ejectment brought thereon, it seems clear that the fine is totally avoided, and that no second entry will be necessary, if he be afterwards turned out ofposses- (c) Clarkev. Phillip*, 1 Vent. 42. hunt, And. 125. S. C. Stran. 1086. (d) Berringlon,d Dormer, v. Park- S. C. VVilJes, 327. S. C. 13 East, 489. The grantor of an estate upon condition, must enter for condition broken, to revest the estate in himself; but when he is in possession already, the estate shall revest in him instantly on breach of the condition. Lincoln and Kenne- beck Bank v. Drummond, 6 Mass. Rep. 321. On the death of a devisor dying seised, the devisee is not seised until an entry is made ; but where the lands are vacant, ne entry is accessary. T. Prince, 4 Mass. Rep. 64. 100 OF ACTUAL ENTRY. sion, by the wrong-doer who levied the fine ; for the fine being once avoided, shall be void for ever.(e) It has been questioned, whether an actual entry is not necessary to prevent the operation of the statute of limita- tions ;(y*) but it seems quite clear, from the whole current of authorities, that no entry is necessary, if the action be commenced within the twenty years. If, however, the twenty years be near expiring before an ejectment is brought, it will be prudent to make an actual entry ; for it seems, that if an actual entry be made before the expira- tion of the twenty years, an ejectment may be brought at any time within twelve months after the entry, al- though the twenty years should in the mean while have expired ; and, also, that if the lessor of the plaintiff fail in his first ejectment, whether brought within the twen- ty years or after, he may, from the provisions of the sta- tute of Anne before mentioned, bring a second, provided this second ejectment be likewise brought within a year after the entry is made ; whereas, if an ejectment be brought without an actual entry, and the claimant fail in it, and, before another ejectment can be brought, the twenty years expire, he will be entirely barred of this remedy ; because the entry which is confessed by the defendant in the first ejectment being only a fictitious entry, and the second ejectment being a new action, and not a continuance of the first, it amounts to the same thing as if no entry had been confessed, or no ejectment had been brought until after the expiration of the twenty years. (e) Stowell v. Zouch, Plowd. 363. (/) Goodright, d. Hare, v. Cater. 366. Doug. 477. 486, (n. 1.) 101 CHAPTER V. OF THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT. THE modern action of ejectment is not confined in its beneficial effects solely to the trial of disputed titles. It is also the common remedy for landlords, on the determina- tion of tenancies, to recover the possession of their lands from refractory tenants ; and it, therefore, properly belongs to this treatise, to inquire into the several relations of land- lord and tenant, with regard to this remedy ; and to point out the different ways by which the tenant's title to the possession may be determined, and the right of entry in the landlord accrue. A tenancy may be determined in three several ways ; first, by the effluxion of time, or the happening of a par- ticular event ; secondly, by a notice, from the landlord to the tenant, to deliver up the possession, or vice versa ; and, thirdly, by a breach, on the part of the tenant, of any con- dition of his tenancy, as, by the non-payment of rent, or the non-performance of a covenant. No comments are necessary upon the first of these di- visions : it is sufficient to say generally, that, when the time expires, or the particular event happens, the tenancy is at once determined ; and that the landlord may imme- 102 OP THE ACTION OF EJECTMENT diately maintain an ejectment to recover his possession, without giving any previous notice to the tenant.(g)[3] The cases comprised in the second division must be treated of more fully ; and, to understand perfectly the principles upon which they have been decided, it will be necessary to give a short history of that species of tenancy, now called a tenancy from year to year. It has already been observed, that, until the reign of King Henry VII., even a tenant, having a lease of lands for a definite period, had not a full and complete remedy when ousted of his possession. The tenants who, during those times, occupied lands without any specific grant, held them by a far more precarious tenure. A general occupation of lands, that is to say, a holding of the lands of another, with- out any certain or determinable estate being limited there- in, was then considered as a holding at the will and plea- sure of the owner of the land ; and the tenant was liable to be ejected at any moment, by the simple determination of his landlord's will. But the same enlightened policy, which secured to lessees for years the complete possession of their terms, soon extended itself, also, to those general (g) Roe, d. Jordan, v. Ward, 1 H. Blk. VJ. [3] Where tenant for a year holds over, he becomes merely a tenant at suf- ferance, and is not entitled to notice to quit. Jackson v. M'Leod, 12 Johns. 182. But if lessor allows the tenant to remain in possession seventeen yean after the expiration of the lease, he cannot recover without notice. Bedford v. M*Eiherron, 2 Serjeant &. Rawle, 48. Where a lease expires, and, by the consent of both parties, the tenant re- mains in possession, the law implies a tacit renovation of the contract ; for, in such a case, there is a prior relation of landlord and tenant, from which a con- tinuance of it may reasonably be presumed. Jackton v. JMrith, 13 Johns. 109. 1 Term Rep. 162. AS BETWEEN LANDLORD AND TENANT. 103 holdings, then called tenancies at will ; and, in the reign of King Henry VIII., (A) we find it holden by the courts, that a general occupation should be considered to be an occupation from year to year ; and that a person so hold- ing, should not be ejected from his lands, without a rea- sonable notice from his landlord to relinquish the posses- sion. It was, also, at the same time, settled, that this rea- sonable notice should be a notice for half a year, expiring at the end of the tenancy ; because, otherwise, a notice, reasonable as to duration, might be given, which would, notwithstanding, operate greatly to the prejudice of the tenant, by ejecting him from his lands immediately before the harvest, or other valuable period of the year: and this rule has remained unaltered to the present day, except where a different time is established, either by express agreement, or immemorial custom. A general occupation of land now, therefore, enures as a tenancy from year to year, determinable, and necessarily determinable,(?) by a regular notice to quit ; and a hold- ing merely at the will of the landlord, according to the ancient meaning of the term, is an estate unknown in mo- dern times,(y) unless when created by express agreement between the parties. (A:) There is, indeed, an implied mo- dern tenure, denominated a tenancy at will ; but it differs materially from the old tenancy so called ; and, in truth, is scarcely distinguishable from a mere permissive occupation of the land, independent of the relationship of landlord and tenant. This kind of tenancy arises, when the party is in (h) 13 Hen. VIII. 16, (6). (j) Tirmmns v. Raiclinson, 3 Burr, (i) Doe, d. Warner, T. Brown, 8 16(& 9. Rait, 166. (k) Richardton v. Lengridge, 4 Taunt. lUtt. 104 OF THE ACTION OF EJECTMENT possession of the premises with the privity(/) and consent of the owner, no express tenancy having been created, and no act having been done by the owner, impliedly acknow- ledging such party as his tenant. As where he has been let into possession pending a treaty for a purchase or a lease ;(w) or under a lease, or which is void ;(n) or where, having been tenant for a term which has expired, he con- tinues in possession, negotiating for a new one.(o) In all these, and the like cases, it is holden, that the party being lawfully in possession, cannot be ejected, until such lawful possession is determined, either by demand of possession, breaking off the treaty, or otherwise, and the party is called a tenant at will ; but, in any of these cases, if the landlord receive rent whilst the party is so in possession, or do any other act amounting to an acknowledgment of a subsisting tenancy, a tenancy from year to year will be created there- by-^) It is singular, that we do not find in the old authorities any decisions relative to notices to quit, although the prac- tice of giving them has been so long established ; but, dur- ing the last fifty years, they have become objects of con- siderable attention to our courts, and there is now no diffi- (/) Doe, d. Knight, v. Qai^/ey, 2 (o) Dcnn, d. Brunt, v. Rawlins, 10 Campb.505. Right, d Lewis, v. Beard, East, 261. Dot, d. Foley, v. Wilson, 13 East, 210. Hegan v. Johnson, 2 11 East, 56. Taunt. 148. Doe, d. Leeson, v. Sayer, ( p) Doe, d. Rigge, v. Bell, 6 T R. SCampb. 8. 471. Clayton v. Blakey,-8 T. R. 3. (m) Goodlille, d. Galloway, v. Her- T,iunder,d. H'eaver,v. Belcher, 3 East, berl, 4 T. R 680. Doe, d. Warner, v. 449, 451 Doe, d. H amer, v. Browne. Browne, 8 Eaxt, 165. 8 East, 166. (n) Doe, A Hollingtworlh, v. Stcn- nett, 2 Esp. 717. AS BETWEEN LANDLORD AND TENANT. 105 culty in reducing their requisites to a clear and satisfac- tory system. [4] In considering the uses and requisites of the notice to quit, our first inquiry will be directed to those particular [4] The Supreme Court of the state of New-York have considered a mere tenant at will ug not entitled to notice to quit ; but have, of kite, inclined to construe ail tenancies at will, into tenancies from year to year, for the pur- pose of notice to quit. In Jackson v. Bradt, (2 Caines' Rep. 174.) Kent, C. J. says, " The reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year. It has frequently been decided by this court, tiiat a mere tenant at will is not entitled to no- tice to quit." In the subsequent case of Jackson v. Bryan, (1 Johns. 322.) it was de- cided, that where defendant entered on land with owner's permission, and made improvements, but no rent was reserved, after a possession of eighteen years, he was held to be tenant from year to year, and entitled to notice to quit. And Spencer, J. says, " That tenancies at will exist nominally, and good policy, as well as common justice, seem to demand, that a holding for an indefinite period should be construed into a tenancy from year to year." Ibid. 326. A mortgagor is entitled to notice to quit, previous to ejectment by the mort. gagee ; " for,'' say the court, " he is quasi tenant at will, and the notice to quit is a mere matter of practice, which we are at liberty to regulate, even in opposition to the English decisions " Jackson v. Dcyo, 3 Johns. 422. Jackson v. Lnvglihead, 2 Johns. 75. Jackson v. Green, 4 Johns. 186. But a purchaser from the mortgagor is not entitled to notice, for there is no privi- ty between him and the mortgagee. Jackson v. Fulltr, 4 Johns. 215. Jackson v. Chase, 2 Johns. 84. The six months advertisement under the statute, is equivalent to six months notice to quit. Jackson v. Lammn, 17 Johns. 300. A tenant at will is considered as holding from year to year only for the pur- pose of a notice to quit ; but he has no right to such notice after he determines the will by an act of voluntary waste. Phillipt v. Covert, 7 Johns. 1. Co. Lilt. 57, a. 6 Co. 13, a. Cro. Eliz. 777, 784. In Jackson v. Wilsey, 9 Johns. 267. the court seemed inclined to the opinion, that a tenant at will is entitled to notice to quit. They cite Might v. Beard, 13 East, 211. where Lord Ellcnborough says, "after lessor had put defendant into possession, he could not, without a demand of the possession, and re- fusal by the defendant, treat the defendant as a wrong doer and trespasser, *8 he assumes to do by his declaration in ejectment" 14 106 OF THE ACTION OF EJECTMENT cases in which implied tenancies from year to year are created, although the direct relationship of landlord and tenant does not exist ; we shall then consider by whom, and to whom, the notice should be given ; then proceed to the form of the notice, and the particular times required in certain cases, for its expiration; and, lastly, point out the means by which the notice may be waived. No tenancy from year to year exists between a mort- gagor and his mortgagee ; but the mortgagee may maintain an ejectrncii against the mortgagor, after the forfeiture of the mortgage, without any previous notice to quit the pre- mises :(1. 471. Clayton v. Blakey, 8 T. R. 3. (w) Roe, d. Jordan, v. ll'nrd, 1 II. (z) Due, d. Warner, v. Browne, 8 Black. 97. Doe, d. Martin, v. Walls, East, 105. 7 T. R. 83 AS BETWEEN LANDLORD AND TENANT. 109 in the land passes under such an agreement, no tenancy is rreated thereby ; but the party being let into possession, and rent being paid and received, he becomes, as in the cases already mentioned, a tei\aut from year to year. It is frequently difficult to determine, from the words of an instrument, whether it will operate as a lease, or only as an agreement for one ; and it may be therefore useful, although the subject does not strictly fall within the limits of this treatise, shortly to consider the points which have arisen in cases of this description. Formerly, when an agreement contained words of pre- sent demise, it was held to amount to an absolute lease, although covenants were added, prospective of some fur- ther act to be done, such covenants being construed to be merely in further assurance. As where, before the statute of frauds, a party said, " you shall have a lease of my lands in D. for twenty-one years, paying therefor 10s. per an- num ; make a lease in writing, and I will seal it :" this was held a good lease by parol, and the making of it in writing was but a further assurance. (a) So, also, and for a similar reason, the words, doth let, in articles of agreement, have been held a present demise, although there was a further covenant, " that a lease should be made and sealed, accord- ing to the effect of the articles, before the feast of All Saints next ensuing."(/>) But a different principle now prevails. The intention of the parties is alone considered, and, to use the words of Lord Ch. B. Gilbert, " if the most proper form of words of leasing are made use of, yet if, upon 1 lie- whole, there appears no such iutent, but that the instru- (a) Maldon't case, Cro. Eliz. 33. (6) Harrington v. Wiie, Cro. Eli*. 486. No/,57. lit) OP THE ACTION OF EJECTMENT tnent is only preparatory and relative to a future lease to be made, the law will rather do violence to the words, than break through the intent of the parties, by construing a present lease, when the intent was manifestly otherwise. "(c) Thus, where articles were drawn up as follows, " A. duth demise his close to S., to have it for forty years." and a rent was reserved with a clause of distress, upon which articles a memorandum was also written " that the articles were to be ordered by counsel of both parties, according to the due form of law :" it was ruled, that the articles were not a sufficient lease. (d) So where the words were, " A. doth agree to let, and B. agrees to take," for a certain term, at a certain rent, all his estates, the said B. to enter upon the premises immediately, and it was further agreed, that leases with the usual covenants should be made and executed by a certain date ; the stipulation that leases should be so drawn, was held to show plainly that it was not the inten- tion of the parties that such agreement, although containing words of present demise, should operate as a lease, but only to give the defendant a right to the immediate possession till a lease could be drawn. (e) So, also, where, upon an agreement stamp, A. agreed to demise and let certain copy- hold premises, for a certain term, at a certain rent, and further undertook to procure a license to let such premises, the court held, that the instrument was an executory agree- ment only, for two reasons ; first, because, if it were held to be a lease, a forfeiture would be incurred, which would be contrary to the intent of the parties, who had cautiously guarded against it, by the insertion of a covenant, that a license to lease should be procured from the lord ; and, se- (c) Bae. Ab tit. Leases, 164. Box- (d) Sturgion v. Painter, Noy, 128. ter, d. Abrahall, \. Browne, 2 Black. (e) Goodtitle, d. Estwick, v. Way, 73-4. 1 T. R. 735. AS BETWEEN LANDLORD AND TENANT. HI condly, because the stamp was conformable to the nature of an agreement for a lease, and not adapted to an absolute lease.(/) So, also, where the words were, " that the said mills he shall hold and enjoy, and I engage to give a lease in, for a certain term," &c. it was ruled, that the words, " -hail hold and enjoy," would have operated as words of present demise, if they had not been controlled by those which followed. (g) So, also, where the words were, "agreed this day to let my house to B.," for a certain term, " a clause to be added in the lease, to give my son a power," &c. it was considered to be manifest, from the latter words, that a future instrument of demise was contemplated.^) And, in a late case, where, in an instrument which con- tained words of present demise, there was no direct refe- rence to any future lease, but it appeared, upon taking the whole instrument together, that a future lease was intended, the same rule of construction prevailed. In this latter case the agreement was, " A. agrees to let to B. all his farm, &c. (except three pieces of land,) to hold for twenty- one years, determinablc at the end of the first fourteen, at the yearly rent of 26/. payable, &c. and at and under all other usual and customary covenants and agreements, as between landlord and tenant where the premises are si- tuate : A. to allow a proportionate part of the rent, for the three pieces of land above excepted ;" and the court held, that it amounted only to an agreement for a lease for the following reasons : because, " at the yearly rent, &c." and, " at and under all usual covenants, &c." is not the language in which a lawyer would introduce into a lease (/) Doe, d. Coore, v. Clare, 2T. (K) Doe, A. Brow-frit, v. Smith, * R. 739. Bast, 530. (g) Roe, d. Jarkton, v. JHtburner,, ft T. R. 13 112 OF THE ACTION OF EJECTMENT the technical covenant for further assurance, but contem- plates tin- entire making of an original lease : and because no landlord or tenant of common sense would enter on a term for twenty-one years, without ascertaining what were the teYms on the one side and the other, by which they were to be bound for that period, and what was to be the rent apportioned for the excepted premises. (i) But where an instrument, upon an agreement stamp, was as follows, " A. agrees to let, and B. agrees to take, all that land, &c. for the term of sixty-one years from Lady-day next, at the yearly rent of 1 20/. ; and for and in consideration of a lease to be granted by the said A. for the said term of years, the said B. agrees to expend 2,000/. in building, within four years, five houses of a third class of building ; and the said A. agrees to grant a lease or leases of the said land, as soon as the said houses are covered in, and the said B. agrees to take such lease or leases, and exe- cutes a counterpart, or counterparts thereof: this agree- ment to be considered binding, till one fully prepared can be produced;'' 1 the court held the same to be a lease, con- sidering it to be the intention of the parties, that the te- nant, who was to expend so much capital upon the pre- mises within the first four years of the term, should have a present legal interest in the term, which was to be binding upon both parties ; although, when a certain progress was made in the buildings, a more formal lease or leases, in which, perhaps, the premises might be more particularly described, for the convenience of underletting or assigning, might be executed. (j) So, also, where the instrument was, " A. agrees to let, and also, upon demand, to execute, to B. a lease of certain lauds, and B. agrees to take, and (t) Morgan, d. Dowding, v. Bistcll, (j) Pwle v. Bentlty, 12 East, 166 3 Tauut. 66. AS BETWEEN LANDLORD AND TENANT. 113 upon demand, to execute a counterpart of a lease of the ?aid lands for a certain term, at a certain rent ; the lease to contain the usual covenants, and the agreement to bind until the said lease be made and executed," &c. it was held to be a present demise ; and that the agreement for a future lease, with further covenants, was for the better security of the parties. (/c)[5] (k) Boc, d. Wctlker, v. Groves, 16 East, 244. [5] A memorandum for a lease, by which A. agrees to let on lease to B. for font years, from a certain day, at a certain rent ; then follow certain conditions to be performed by B. ; and it is added, that B. agrees to take the premises on said terms and conditions. Held, that this was a lease, and not an agreement for a lease. Haltett v. Wylic, 3 Johns. 44. and in case of B.'s being 1 kept out of possession, his remedy is ejectment, and ot an action on the covenant. Thornton v. Payne, 5 Johns. 74. A memorandum of an agreement stated, that A. " hath set, and to farm let, unto B., all that farm, Sic. for the rent of, &c. for the use of B. and his wife ; the place to be surveyed on or before the 1st June next, and then the said B. is to takt a least for the same." After a possession in B., and pay- ment of rent for fourteen years, this was held to amount to a lease in prasenti. Jackson v. Killenbnck, 10 Johns. 336. In this case Spencer, J., says, " None of the cases will be found to contra- "diet the position, that where there are apt words of present demise, and to " these are superadded a covenant for a further lease, the instrument is to be " considered as a lease, and the covenant operating as a covenant for further " assurance. The case of Baxter v. Brown, (2 W. Bl. Rep. 973.) is much in ' point. The agreement was to grant a lease to Brown of the premises, and " they did thereby set and let to him all, &ic. ; provided that the said lease shall " be void on the non-payment of rent, &.<-., and that such lease shall contain Lite " usual covenants, iic. The defendant entered in pursuance ol such agree- " iiu nt , and paid rent, and it was held by all the judges, that it was clearly " a good lean 1 I'M jirrcsenti, with an agreement for a more formal lease in fu- 41 ture. We believe that there is no case of a present demise, by apt words, " followed by a possession, in which the instrument has not been held to pass '' an immediate interest." A covenant in a lease by the lessor, to let the lot at the expiration of the U-rm ti> the lessee, without mentioning the time for which it was to be let, is altogether void for uncertainty. Jibed v. Radcliff, 13 Johns. 300. Nor would Chancery, in this case, interfere to compel a specific perfor- mance. 12 Ves. 466. 1 Scho. &. Lef. 22. Free, in Chan. 560. 11 East, 142. 1 Atkyns, 12. 3 Johns. 399. 2 Vern. 415. 1 Ves. Jun. 27V. 15 114 OF THE ACTION OF EJECTMENT But to return to the subject of implied tenancies from year to year. In all the cases already mentioned, the mode of acknowledging the tenancy, was by the payment and receipt of rent, which, indeed, is the common evidence in cases of this nature. But the intention to create such a tenancy may be inferred from other circumstances. Thus, where lands descended to an infant, with respect to whom the tenant in possession was a trespasser, and an ejectment was brought on the demise of the infant, and compromised by his attorney upon certain terms, one of which was, that the tenant should attorn to the infant, it was ruled by Lord Kenyon, C. J. at Nisi Prius, upon a second eject- ment being brought by the infant, when he attained his full age, that although the infant was no party to the agree- ment, nor had confirmed it, nor received rent since he came of age, yet that such agreement having been entered into, without fraud or collusion, after an ejectment brought at his suit, had, by his acquiescence therein, established the defendant's title as against himself, and created a new tenancy, which could only be determined by a notice to quit.(/) So, also, where a feme covert lived many years se- parated from her husband, and during that time received to her separate use the rents of certain lands, which came to her by devise after separation, it was presumed, that she received the rents by her husband's authority, and held, that a notice to quit must be given by him before he could maintain ejectment. (m) But it is necessary that some act of acknowledgment should take place ; a mere permission by the owner to oc- (l) Doe, d. Miller, v. JVoden, 2 Esp. (m) Doc, d. Leicester, v. Biggs, I 628. Taunt. 367. AS BETWEEN LANDLORD AND TENANT. 115 cupy the premises will not be sufficient, under any cir- cumstances, to create a tenancy requiring a notice to quit, although, in some instances, as we have already remarked, it may create a tenancy at will.(n)[6] () Ante, 103, 104. [6] A notice to quit a only necessary where the relation of landlord and tenant subsists. So, where A. conveys to B., and B. to (' , and A. remains in possession ten years, no tenancy is created between A. and C , and A. is not entitled to notice to quit from C. The relation of landlord and tenant cannot be presumed from the naked fact, that the defendant continued in possession. The utmost that A. could claim was a tenancy at will between him and B., which will was determined by the conveyance to C. Jackson v. Aldrich, 13 Johns. 106. Spencer, J. dissenting. Defendant claiming to hold in fee, is not entitled to notice. Jackson r. Dryo, 3 Johns. 42-2. A person holding land bj a parol gift (and consequently merely a tenant at will) leases the land, and the donor merely permits the lessee to build, and en- joy the term, a tenancy is not thereby created, and the lessee is not entitled to notice to quit. Jackson v. Rogers, 1 Johns. Cas. 33. Same case, 2 Caines' CBS. in Error, 314. A., a lessee, agrees to sell a lease to B., who endorses his name on the lease, and delivers it to B., who pays the purchase money, and agrees to pay the rent in arrear, and to become due, to the lessor. Held, that by this agree, meat the relation of landlord and tenant was not created, and that B. was not entitled to notice to quit. Jackson v. Kingsley, 17 Johns. 158. The better opinion is, that a person entering on land, under a contract for a deed, is not a tenant, nor entitled to notice to quit; but, on the non-perfor- mance of his contract, is liable to be turned out as a trespasser. Smitk v. Sleuart, 6 Johns. 46. A person holding adversely, applies to the lessor " to be considered as his " tenant in possession ;" there is no tenancy created, and he is not entitled to notice to quit, for defendant merely wUhes to be deemed the occupier, having the equitable right of pre-emption. Jarksun v. Cuerden, 2 Johns. Cas. 353. \Vheredefendttiitentered adversely, a permission by the lessor of the plain. tilT to continue in possession, and a disclaimer by the defendant of holding adversely, will not constitute him tenant, sons to entitle him to notice to quit. Jackson, v Tyler, 2 Johns. 444. A servant or bailiff is not entitled to notice to quit. Jackson v. Sample, 1 Johns. Cas. 231. Where lessee takes possession of more land than was contained in his lease, ad pays rent for the entire premises, he becomes tenant trow year to year llt> OP THE ACTION OF EJECTMENT Thus, where the party was let into possession, under au agreement for the purchase of the land, and had posses- sion formally given to him, and paid part of the purchase money, the court held, that the premises might be recover- ed in ejectment, upon a demand of possession, without any notice to quit.(o) And where the vendor of a- term, after payment of part of the purchase money, let the purchaser into possession upon an agreement, that he (the purchaser) should have possession of the premises until a given day, paying the reserved rent in the meanwhile, and that if he should not pay the residue of the purchase money on that day, he should forfeit the instalments already paid, and not be entitled to an assignment of the lease ; it was held, that the vendor might maintain ejectment without notice to quit, or even demand of possession, the pur- chaser having failed to complete the purchase at the ap- pointed day.(/>) So, also, where the party took possession (o) Right, d. Lewis, v. Beard, 13 (p) Doe, d. Leuon, v. Sayer, 3 East, 210. Campb. 8. of the whole, and in ejectment for the land not included in the lease, is en- titled to notice to quit. Jackson v. If'ilsey, 9 Johns 267. Where, by an agreement for the snip of lands, defendant pays part of the purchase money, and takes possession under the agreement, the vendor can- not maintain ejectment without notice to quit. Jackxon v. Rowan, 9 Johns. 330. And so, where A. was to receive a deed when the whole of the purchase money should be paid, and in the mean time to pay an annual rent, A. hav- ing paid rent, becomes a tenant, and is entitled to notice to quit. Jackson v. tfiren, 10 Johns. 335. Letting land to a person for one year to cultivate on shares makes him a tenant, and not a mere labourer or servant. Jackson v. Brownetl, 1 Johns. 267. But letting land on shares for a single crop does not amount to a lease of the laud, and the owner alone cau bring trespass. Bradisli v. Scltenck, 8 Johns. 151. Where land was leased for a number of years, the lessee paying half of the annual crops, it was held, that the interest in the soil passed to the lessee, and that his interest in the crops was exclusive, until he separate and deli- ver to the lessor his proportion. Stewart v. Doughty, 9 Johns. 108. AS BETWEEN LANDLORD AND TENANT. 117 under an agreement, that the owner would, by indenture, demise, &c. this was holden to be a mere- permissive oc- cupation, until the execution of the indenture. (9) And where a man, having obtained possession of a house with- out the landlord's privity, afterwards entered into a nego- tiation with him for a lease, which failed, the same rule of construction prevailed. (r) In like manner, where a tenant whose lease had expired continued in possession, pending a treaty for a further lease, no tenancy from year to year was created by such possession and negotiation, although it was held, that the landlord had so far thereby acknowledged the defendant as his tenant, as to preclude him from recovering in ejectment, upon a demise anterior to the termination of the treaty.(s) When, also, a party is admitted into possession under an invalid lease or agree- ment, no notice to quit is necessary, until the landlord has acknowledged the tenancy, although, in these cases, also, the party becomes tenant at will to the landlord, and can- not be ejected until the landlord has demanded possession, or in some other manner determined the will.(/) As, however, the implied tenancies from year to year here treated of, depend wholly upon the presumption that it was the intention of the parties to create them, evidence may always be received to rebut such presumption, and shew their real meaning. Thus, where a remainder-man, on the death of the tenant for life, gave notice to the tenant in possession under a lea.se, granted by the tenant for life, but void against the remainder-man, to quit at the end of () Right, d. Dean of Wellt, v. Bane- East, 261. ) When the landlord intends to enforce his claim to double value, if the tenant holds over,( q) it is necessary that the notice to quit should be in writing ; but for the purposes of an ejectment a parol notice is sufficient, unless the notice is required to be in writing by express agreement between (n) Doe, d. Lord Carlitle, v. Wood- (p) Appendix, Nos. 1, 2, 3 man, 8 East, 228. (q) 4 G. II. c. 28. *- 1. (o) Jonu, d. Griffiiht, v. Marsh, 4 T. R.4M. A3 BETWEEN LANDLORD AND TENANT. 125 the parties. (r) It i?, however, nevertheless, the general practice to give written notices ; and it is a precaution which should always, when possible, be observed, as it prevents mistakes, and renders the evidence certain and correct. It is customary also to address the notice to the tenant in possession ; and it is, perhaps, most prudent to adhere to this form, though, if proof can be given that the notice was served personally upon him, it is thereby ren- dered unnecessary. (s) And where a notice was addressed to the tenant by a wrong Christian name, and the tenant did not return the notice, or object to it, and there was no tenant of the name mentioned in the notice, it was ruled at Nisi Prius to be sufficient. (t) A subscribing witness to a notice to quit is unnecessary ; and it is prudent not to have one, as it may occasion diffi- culties in the proof of the service, and cannot be of the slightest advantage to the landlord. Care should be taken that the words of a notice are clear and decisive, without ambiguity, or giving an alternative to the tenant ; for, although the courts will reluctantly listen to objections of this nature, yet if the notice be really ambiguous, or optional, it will be sufficient to render it invalid, as far at least as the action of ejectment is con- cerned. The notice, however, will not be invalid, unless it cou- (r) Legg, d. Scott, v. JJenion, (t) Doe, d. Matthewson, v. ll'righl- Willes, 43. Timmiiu v Roielinton, I man, 4 Esp. 6. VV. Blk. 533 Doe,d. Ld. Macartney, (t) Dot, v. SpilUr, 6 Esp. 70 r. Crick, 5 Esp. 196. Roe, d. Dean of Rothuttr, r. .Pierce, 2 Cauipb. iH. 126 OP THE ACTION OF EJECTMENT tain a real and bonafide option, and not merely an appa- rent one; for if it appear clearly, from the words of the notice, that the landlord had no other end in view, than that of turning out the tenant, it will be deemed a notice sufficient to found an ejectment upon, notwithstanding an apparent alternative. Thus, the words, " I desire you to quit the possession at Lady-day next of the premises, &c. in your possession, or / shall insist upon double rent" have been held to contain no alternative ; because the land- lord did not mean to offer a new bargain thereby, but only added the latter words as an emphatical way of enforcing the notice, and shewing the tenant the legal consequences of his holding over. It was contended for the tenant, that this could not be the construction of the notice, because the statute of 4 Geo. II. c. 28. does not give double the rent, but double the value, on holding over; but Lord Mansfield, C. J., was of opinion, that the notice, notwith- standing this variance, clearly referred to the statute. It seems, however, that if the words had been " or else that you agree to pay double rent," the notice would have been an alternative one.(u) Where the notice was to quit " on the 25th day of March, or 6th day of April next ensuing,"(u) and was delivered before new Michaelmas-day, it was held to be a good notice ; as being intended to meet an holding com- mencing either at new, or old Lady-day, and not to give an alternative. (a?) (u) Doe, d. Matthews, v. Jackson, case, cannot be correct. See also Dong. 175. Doe, d. Spicer, v. Lea, 11 East, 312. (r) In the printed report, this date (tc) Doe, d. Matthswwn, T. WrigM- is stated to be the eighth day of April, man, 4 Esp. 5. which, from the reasoning in the AS BETWEEN LANDLORD AND TENANT. 127 Upon the same principle, the court will not invalidate a notice, on account of an ambiguity in the wording of it, provided the intention of the notice be sufficiently certain. Thus, an impossible year has been rejected. The notice was given at Michaelmas 1795, to quit at Lady-day, which will be in 1 795, and was accompanied, at the time of de- livery to the tenant, with a declaration, that as he would not agree to the terms proposed for a new lease, he must quit next Lady-day, and under these circumstances the notice was considered to be sufficiently certain :(i) the court also seemed to be of opinion, that the notice would have been good without the accompanying declaration, the words " which will 6e," manifestly referring to the then next Lady-day. In like manner, where there was a mis- description of the premises in the notice, which could lead to no mistake, the house being described therein as the Watermarks Arms, instead of the Bricklayers Arms, no sign called the Waterman's Arms being in the parish, the notice was deemed a valid one.(z/) When a notice is given to quit at Michaelmas, or Lady-day generally, it will not be deemed an ambiguous notice, but considered prima facie, as expiring at new Michaelmas, or new Lady-day, open, however, to explana- tion, that old Michaelmas, or old Lady-day, was intended. And if it appear, that the customary holdings where the the lands lie, are from old Michaelmas, or Lady-day, or even that in point of fact, the tenant entered at old Mi- chaelmas, or Lady-day, although no such custom exist, such a notice will be binding upon him.(r) (j) Doe, d. Duke of Bedford, v. (e) Furley, d. Mayor of Canlerbu- Kifrlitley, 7 T. R. 63. ry, v. H'owt, 1 Esp. 1U7. Doe, d. (y) Doe, d. Cox, v. ,4 Esp. Hinde, v. Vine, 2 Campb. 256. IS*. 128 OF THE ACTION OF EJECTMENT The notice must include all the premises held under the same demise ; for a landlord cannot determine the tenancy as to part of the things demised, and continue it as to the residue. But where the demise was of land and tithes, and the notice was to quit possession of "all that messuage, te- nement, or dwelling-house, farm-lands, and premises, with the appurtenances, which you rent of me," it was ruled at Nisi Prius that this notice was sufficient to include the tithes ; for the tithes being held along with the farm, the notice must have been understood by both parties to apply to both.(fl) Fourthly, Of the time when the notice should expire. Before, however, we enter upon this subject, it may be useful to observe, that certain demises, which have the ap- pearance of tenancies from year to year only, are consider- ed by the courts as conveying to the tenant an indefeasible interest for a certain time, though afterwards liable to be determined by a notice to quit. Thus, a demise " not for one year only, but from year to year," has been held to constitute a tenancy for two years at least, and not determinable by a notice to quit at the ex- piration of the first year.(6) The same interpretation has also been given to a demise " for a year, and afterwards from year to year ;"(c) though where the demise was " for twelve months certain, and six months' notice afterwards ;" it was held at Nisi Prius, that the tenancy might be deter- mined at the expiration of the first twelve months. (rf) (a) Doe, d. Morgan, v. Church, 3 (c) Birch v. Wright, I T. R. 378. Campb. 71. 80. and the cases there cited. (6) Denn, d. Jacklin, v. Curirighi, (d) Thompson v. Maberly, 2, 1 East, 31. Campb. 673. AS BETWEEN LANDLORD AND TENANT. 129 Where the demise was to hold for three, six, or nine years, generally, without any stipulation as to the manner in which, or the party hy whom, the tenancy might be de- termined at the end of the third, or sixth year, the tenancy was held to be dctenninable, at the two earlier periods, at the will of the tenant only, and by a regular notice to quit : and that, as against the landlord, the demise operated as an indefeasible one for nine years. (e) . If the produce of the demised lands require two years to come to perfection, as if it be liquorice, madder, &c. a general holding will, it seems, enure as a tenancy from two years to two years, and cannot be determined by a notice to quit at the end of the first, or third ycar.(y) And it was observed by De Grey, C. J. in his judgment, that it might deserve to be considered whether, if required by the nature of the soil, or the course of husbandry, a general holding will not always enure as a tenancy for such period, as may be necessary to carry the land through its regular course of cultivation, instead of as a tenancy from year to year , but this doctrine seems very doubtful. It has before been stated generally, that, by the com- mon law, the notice necessary to be given to a tenant, is a notice for half a year, expiring at the end of the current vear of his tenancy; and that a notice expiring at any other period will not be sufficient. (g) This notice is fre- quently spoken of in the books, as a six months'* notice ; and (he distinction seems to be, that when the tenancy expires at any of the usual feasts, as Michaelmas, Christmas, Lady- day, or Midsummer, the notice must be given prior to, or (e) Dcnn v. Spurrier, 3 B. & P. (/) Roe v. Lett, Black 1171. 399. (g) Ante, 103. 17 130 OF THE ACTION OF EJECTMENT upon, the corresponding feast happening in the middle of the year of the tenancy ;(A) whilst, if it expire at any other period of the year, the notice must be given six calendar months previous to such expiration. The notice, when a tenancy commences at any of the usual feasts, may be given to quit at the end of half a year, or of six months from the date of the corresponding feast in the middle of the year, without stating the day when the tenant is to quit, although the intermediate time be not ex- actly half a year, or six months, from feast to feast being the usual half yearly computation. And, indeed, in a case where the notice was, to quit " on or about the expiration of six calendar months from the 29th of September," (the tenancy commencing March 25,) the court ruled the word calendar to be surplusage, and held the notice good.(i) It was once contended, that the principle, that a notice to quit must expire at the end of the year of the tenancy, did not extend to houses as well as lands ; and that in cases where houses alone were concerned, six months' notice, at any period of the year, would be sufficient ; but the court considered that the same inconvenience might arise in the one case as in the other, since the value of houses varies considerably at different periods of the year ; and therefore held that the tenant of a house was entitled to the same pri- (h) In a report of a MS. case iu J. Heath's decision, since the princi- Esp. N. P. 460. it is said, that a no- pie laid down in the report is in oppo- tice givrn on the 30th of September, sition to every authority upon the being the day after Michaelmas-day, subject. Probably the tenant entered to quit at Lady -day following, was at old Lady-day. Vide Right v. ruled by Heath, J. to be a sufficient Darby, 1 T. R. 169. et ante, 127. notice. Some particular circumstan- (i) Howard v. IPemsley, 6 Esp. 53. ces, not noticed by the reporter, must, The marginal note in the report of it is conceived, hare occasioned Mr. this case is incorrect. AS BETWEEN LANDLORD AND TENANT. 131 vileges, with respect to the notice to quit, as the occupier of lanA.(j) It should, however, be observed, that this rule extends, with respect to houses, to those cases only in which the te- nancy enures as a tenancy from year to year ; and that the notice required will refer to the original letting, and be re- gulated by the local custom of the district in which the house is situated, whenever it happens that a shorter term than twelve months is intended to be created by the letting, although no particular period be mentioned. This chiefly happens in the case of lodgings ; and the custom, for the most part, requires the same space of time for the notice, as the period for which the lodgings were originally taken ; as a week's notice when taken by the week, a month's when taken by the month, and so forth. (A:) When, also, the custom of the country where the pre- mises are situated, requires, or allows, a notice for a longer, or shorter period, than half a year (as, for instance, the custom of London, by which a tenant, under the yearly rent of 40s. is entitled to a quarter's notice only,) (/) the custom will be admitted by the courts ;(m) but such cus- tom must be strictly proved, and the witnesses must not speak to opinion, butfacts.(n) The parties may also, by special agreement, vary the time of the duration of the notice ; but the notice must, notwithstanding where the letting is from year to year, expire with the year of the tenancy, unless the agreement also provides some other (/) Right v. Darby, I T. B. 159. (0 Tyleyv. Seed, Skin. 649. Doe, d. Browne, v. Wilkinson, Co. (m) Roe, d. Brown, v Wilkinson, Lilt. 270 (b), n..l. Co. Lilt. 270(6), n. 1. (k) Doe, d. Parry, v. Haztll, 1 Esp. (n) Rot, d. Henderson, v. Char. 94. nock, Peake N. P. C. 4. J32 OF THE ACTION OF EJECTMENT period for its expiration. (o) Where, however, the terms of the agreement are not intended to create a tenancy from year to year, determinable at a quarter's notice, but to empower the parties to put an end to the tenancy at other periods of the year, as well as at its termination, the courts will give effect to it. Thus, a demise for one year only, and then to continue tenant afterwards, and quit at a quarter's notice ;(o) and a demise, where it wa agreed " that the tenant was always to be subject to quit at three months' notice, '""(/>) have been held to be demises determinable at the end, although not in the middle of any quarter. But a quarterly reservation of rent is not a circumstance from which an agreement to dispense with a regular notice for six months is to be inferred ; although, where the landlord accepted in such case a three months' notice from his tenant, without expressing either his assent to, or dissent from, such notice, it was ruled at Nisi Prius to be presumptive evidence of an agreement, that three months' notice should be sufficient.(y) The notice may be given to quit upon a particular day, or in general terms at the end and expiration of the current year of the tenancy, which shall expire next after the end of one half year from the service of the notice. (r) The latter form should always be used when the landlord is ignorant of the period when the tenancy commenced, and is unable to serve the tenant personally ; and, it is also the preferable form, when the commence- ment of the tenancy is known, as it provides against any misapprehension of the exact day when the tenant en- (o) Doe, d. Pilcfier, v. Donovan, I (7) Shirley v. JVeitman, 1 Esp. 26i. Taunt. 155. (r) Appendix, No. 1. 2, 3. (p) Kemp v. Derrelt, 3 Cainpb. 511. AS BETWEEN LANDLORD AND TENANT. 1 3Sl icrcd. If a particular day be mentioned in the jiotice. it must be the day of the commencement, and not of the conclusion of the tenancy ; for the tenant cannot be compelled to quit, whilst his right of possession continues, and this right is not determined, until the year is fully completed. It must also be the exact day of such com- mencement. The next, or any subsequent day, will not be sullicicnt.(s) The time, when a tenancy from year to year com- mences and expires, takes its date, in the absence of all other circumstances, from the time when the tenant actually enters upon the demised premises ;(/) but this general rule may be varied, both as to the commence- ment and expiration of the tenancy, either by express agreement or legal inference. When a person is let into possession as a yearly te- nant, and afterwards takes a lease of the premises, and continues to hold the land after the lease has expired, the time of the expiration of the tenancy, created by ?uch holding over, will be regulated by the terms of the lease,. and not by the time of the original entry. Thus, if a man enters at Lady-day, continues tenant for one or more years, then accepts a lease for a certain term expiring at Michaelmas, and afterwards holds over and pays rent, the notice must be given to quit at Mi- chaelmas, and not at Lady-day. (u) And the rule extends to the assignees of the original lessee, and their assigns. Whatever may be the period of the year when they enter upon the demised premises, the time of the expiration (*) Doe, d. Spicer, v. Lea, 11 Enst, (it) Dnc, <\. S/n'rer. v. />. 11 East, 312. 312. (/; Kemp v. Derrett, 3 Campb.oll. 134 OF THE ACTION OF EJECTMENT of their tenancies will be the same as if the original les- see had continued in possession ; and it seems immate- rial whether they come into possession before or after the expiration of the lease.(r) In like manner, when a remainder-man receives rent from a person in possession under a lease, granted by the tenant for life, but void against the remainder-man, and thereby creates a tenancy from year to year, the time at which a notice to quit, given by such remain- der-man, must expire, will be regulated by the terms of the lease, and not by the time of the death of the te- nant for life.(zo) As, if the lease be for a certain num- ber of years, to commence on the 5th of April, and the tenant for life die on the 30th of September, the proper period for the expiration of the notice will be the 5th of April. The principle is the same if the tenant hold under a parole lease, void by the statute of frauds. As, where there was a verbal agreement to hold for seven years, and the tenant was to enter at Lady-day, and quit at Candlemas, it was held that the lease, although void as to its duration, nevertheless regulated the terms of the tenancy in other respects, and that a notice to quit must expire at Candlemas, and not at Lady-day.(oc) It may be recollected from these cases, that if there be a lease for years, commencing on one day, and terminat- (c) Doe, d. Ccutleton, v. Samuel, 5 1 T. R. 159. Roe, d. Jordan, v. Ward, Esp. 173. 1 H. Blk. 97. Anie, 107, 108. (IP) Doe, d. Colliw, v. Welter, 7 T. (x) Doe, d. Rigge, v. Bell, 5 T. R. R. 478. Right, d. Flower, v. Darby, 471. Doe, d. Peacock, v. Rajfan, 6 Esp. 4. AS BETWEEN LANDLORD AND TENANT. 135 ing on another, as for example, commencing at Lady-day, and terminating at Michaelmas, a tenancy created by the landlord's receipt of rent after the expiration of the lease, will be held to commence at Michaelmas, and to require half a year's notice from Lady-day. No new tenancy is created by a mere agreement be- tween landlord and tenant, for an increase of rent in the middle of the year of a tenancy ; but a notice to quit, given after the receipt of the increased rent, must expire at the time when the tenant originally entered.(^) When a tenant took possession in the middle of a quar- ter, paid rent from the time of his coming in up to the next quarter day, (Christmas,) and then paid his rent half yearly at Midsummer and Christmas, it was ruled at Nisi Prius, that the tenancy commenced from Christmas, and not from the preceding half quarter. (2) But where the tenant en- tered in the middle of a quarter, upon an agreement " to pay rent quarterly, and for the half quarter," it was left to the jury, whether the party was tenant from the quarter day, prior to the time when he entered, or from the suc- ceeding quarter day ; and under the direction of Lord El- lenborough,C. J. the jury found that the tenancy commen- ced with the preceding quarter, (a) When the demise is by parol, and in general terms to hold from feast to feast, as from Michaelmas to Michael- mas, it will be a holding from such feast according to the (.V) Dot, d. Bedford, v. Kendrick, (a) Doe, d. Wadmore, \. Stlicyn. Warwick Sum. Ass. 1810. MS. H. T. 47 Geo. Ill MS. (>) Doe, d. llolcomb, v. Johnson, 6 F.p. 10. 136 OK THE ACTION OF EJECTMENT new shjle ; unless, by the custom of the country where the lands lie, (which custom may be proved by parol testi- mony,) such tenancies commence according to the old style.(b] If, however, the demise be by deed to hold from any particular feast, as "from the feast of St. MichaePs, 4-c." the holding must be taken to be according to the new style, notwithstanding the custom ; and thrs rule prevails, al- though the tenancy be created by a holding over after the expiration of the lease, and the original entry was accord- ing to the old style. (c) Upon the same principle, a notice to quit at Michaelmas generally, prima facie means new Michaelmas ; but if the tenant entered at old Michaelmas, it will be construed to mean old Michaelmas. (d) A tenant sometimes enters upon different parts of the land at different periods of the year, although all are con- tained in one demise ; and the notice to quit must then be given with reference to the substantial time of entry, that is to say, with reference to the time of entry on the substan- tial part of the premises demised ; no notice being taken of the time of entry on the other parts, which are auxiliaries only ; though the tenant will be obliged to quit them at the respective times of entry thereon. (e) This substantial time of entry, it has been contended, must be determined by the times when the rent is pay- able ; but it is holden to depend, either upon the general (b) Furley, d. Mayor of Canterbury, (d) Doe, d. Hinde, v. Vince, 2 v. Wood, 1 Esp. 198. Run. Eject. 112. Campb. 256. (c) Doe, d. Spicer, v. Lea, 11 East, (e) Doe, d. Strickland, v. Spence, 6 312. East, 120 AS BETWEEN LANDLORD AND TENANT. 137 custom of the country where the lands lie, or upon the re- lative value and importance of the different parts of the demised premises ; and of these facts it is the province of the jury to determine. As few decisions are to be found on these points, it will be useful to give a concise statement of them. Where the landlord agreed to let the defendant a farm, to hold the arable land from the 1 3th of February then next, the pasture from the 5th of April, and the meadow from the 12th of May, at a yearly rent payable at old Michaelmas and old Lady-day, the first payment to be made at Michael- mas then next, it was held to be a tenancy from old-Lady- day to old Lady-day ; because the custom of most countries would have required the tenant to have quitted the arable and meadow lands on the 13th of February, and 12th of May, without any special agreement, and a notice to quit at old Lady-day, delivered before old Michaelmas, was held sufficient^/) So, also, upon a demise of the same nature, namely, that the tenant should enter upon the arable land at Can- dlemas, and the house and other premises at Lady-day, to which was added a proviso, that the tenant should quit the premises " according to the times of entry as aforesaid," it was held by the court, that the proviso made no alteration in the tenancy, so as to require a notice six months before Candlemas, because it merely expressed what the law would otherwise have implied ; that the substantial time of entry was at Lady-day, with a privilege to the tenant on the one hand to enter on the arable land before that period. (/) Dot, d. Daggtt, v. Snowdon, 2 W-Blk. 1224 19 138 OF TUB ACTION OF EJECTMENT for the purpose of preparing it, and on the other hand a sti- pulation by him, when he quitted the farm, to allow the same privilege to the incoming tenant ; and, therefore, that a notice to qait, given six months previous to Lady-day, al- though less than six months before Candlemas, was suffi- cient.^) Where the premises contained in the demise consisted of dwelling-houses, and other buildings, used for the purpose of carrying on a manufacture, a few acres of meadow, and pasture land, and bleaching-grounds, together with all wa- ter courses, &c. and the tenant held under a written agree- ment for a lease, to commence as to the meadow ground from the 25th of December then last, as to the pasture from the 25th of March then next, and as to the houses, mills, and all the rest of the premises, from the 1st of May, the rent payable on the day of Pentecost and Martinmas, the Court held, that the substantial time of entry was the 1st of May, inasmuch as the substantial subject of the demise was the house and buildings for the purpose of the manufacture, to which every thing else in the demise was merely auxilia- ry.(A) Where a house and thirteen acres of land, were demised for eleven years, to hold the lands from the 2d of Febru- ary, and the house and other premises from the first of May, at the yearly rent of 24/. payable at Michaelmas and La- dy-day, the jury found the land to be the principal subject of the demise ; and the plaintiff was nonsuited on account of the notice to quit not having been given six months pre- vious to the 2d of February. The Court was afterwards (g) Doe, d. Strickland, v. Spence, 6 (h) Doe, d. Jj>rd Bradford, v. Wal- Bast, 120. kins, 7 East, 651. AS BETWEEN LANDLORD AND TENANT. 139 moved to set aside the nonsuit, on the ground that the house was the principal part of the demise 5 (being situated near a borough;) or, at all events, that the relative value and im- portance of the house and lands were so nearly balanced, it was immaterial to which the notice referred ; but the Court refused the rule, saying, it was for the jury to decide which was the principal, and which the accessary part of the demise. (i) Lastly, of the acts by which a regular notice to quit may be waived. The acceptance of rent, accruing subsequently to the expiration of the notice, fs the most usual means by which a waiver of it is produced ; but the acceptance of such rent is not of itself a waiver of the notice, but matter of evi- dence only to be left to the jury, to determine with what views, and under what circumstances, the rent is paid and received. If the money be taken nomine patnce, as a compensation for the trespass, or with an express declaration that the no- tice is not thereby intended to be waived, or if there be any fraud or contrivance on the part of the tenant in pay- ing it, or if the payment be accompanied by other circum- stances which may induce an opinion, that the landlord did not intend to continue the tenancy, no waiver will be pro- duced by the acceptance. The rent must be pa'd and re- ceived as renf, that is to say, it must be so paid and receiv- ed, as to satisfy the jury of an intention to continue the te- nancy, or the notice will remain in force. Thus, where the landlord brought an ejectment immediately upon 'the () Dot, d. Meapy, v. Howard, \ 1 East, 498. 140 OF THE ACTION OF EJECTMENT expiration of the notice, and after the appearance of the truant in the action, received from him a quarter's rent, accruing subsequently to the day when the notice expired, but nevertheless continued his action, the Court were of opinion ( upon a motion for a new trial, after a verdict for the defendant,) that from the continuance of the suit by the landlord, after the acceptance of the rent, a fair infe- ence might be drawn, that he did not mean to waive his no- tice ; and as that point had not been left for the considera- tion of the jury, (who had been directed at the trial to find for the defendant, upon the simple fact of the quarter's rent having been paid and received,) the motion for the new trial was granted. (j) So, also, where the rent was usually paid at a banker's, and the banker, in the common routine of business, received a quarter's rent from the tenant after the expiration of the notice, no waiver of the notice was thereby created. (A;) But where the notice expired at Michaelmas, 1 792, and the landlord accepted rent due at l^ady-day, 1 793, and did not bring his ejectment until after such acceptance, nor try the cause until 1 795, the jury held that the notice was waived. (/) The notice may also be waived by other acts of the landlord ; but they are all open to explanation, and the particular act will, or will not, be a waiver of the notice, according to the circumstances which attend it. Thus, a o second notice to quit, given after the expiration. of the first notice, but also after the commencement of an ejectment, in which the landlord continued to proceed, notwithstand- ing his second notice, was holden to be no waiver of the (ji) Doe, d. Clwny, v. Batten, Cowp. (/) Goodright, d. Charier, v. Cord- 243. wen/. 6 T. R. 219. (k) Dot, d. AA, v. Calcert, 2 Campb. 387. AS BETWEEN LANDLORD AND TENANT. 141 notice originally given; because, it was impossible for the tenant to suppose, that the landlord meant to waive a notice upon the foundation of which he was proceeding to turn him out of his fann.(m) Where, also, after the ex- piration of a regular notice to quit, the landlord gave a second notice in these words : " 1 do hereby desire you to quit the premises which you now hold of me, within fourteen days from this date, or I shall insist upon double value," it was ruled by Lord Ellcnborough, C. J. at Nisi Prius, that the second notice could not be intended, or understood to be intended, as a waiver of the first, or even as an acknowledgment of a subsisting tenancy at will hav- ing for its object merely the recovery of double value ; and the lessor of the plaintiff recovered upon a demise an- terior to the expiration of the second notice. (n) So, also, where a notice was given " to quit the premises which you hold under me, your term therein having long since expired," the Court considered the paper as a mere demand of pos- session, and not as a recognition of a subsisting tenancy.(o) But where the defendant was lessee by assignment of certain tithes, under an agreement, which only operated to create a tenancy from year to year, and the impropri- ator, in March, 1810, (some days after the assignment,) gave the original lessee a notice to quit at the Michaelmas following, and afterwards, in March, 1811, gave the as- signee a notice tc- quit at the then next Michaelmas, the Court were clearly of opinion, that such second notice was a waiver as to the assignee of the former notice given to the original lessee. And, in answer to an argument in (m) Doe,d. Williams, v. Humphrey*, (o) Doe, d. OvdsclJ, v. Iiiglis, <* '2 East, 236. Taunt. 64. *(n) Doe, d. Difby, v. Steel, MS. nd 3 Campb. 115. 142 OF THE ACTION OF EJECTMENT support of the efficacy of the first notice, that the original tenancy having expired at Michaelmas, 1810, could not be setup again hy another notice to the defendant in 1811, inasmuch as the giving of a person notice to quit does not operate to create a tenancy in him, the Court observed, " It does not necessarily do so, but it is generally con- sidered as an acknowledgment of a subsisting tenancy ; and if the party obeys the notice, how can he be deemed a trespasser on account of a prior notice to another per- son ? Nothing appears to shew, that the defendant had knowledge of any other notice to quit than the one which was served upon him ;" and Bay ley, J. added, " the second notice gives the defendant to understand, that if he quits at Michaelmas, 1811, he will not be deemed a trespasser. (p) It may be collected from this case, that if a tenant, having underlet the premises, receive from his landlord a notice to quit, and the landlord afterwards give to the un- der-tenant a notice to quit, expiring at a subsequent pe- riod,^) he is precluded from recovering in an ejectment against such under-tenant, upon a demise anterior to the time of the expiration of the notice so given by him to the under-tenant. And if, after the expiration of a re- gular notice, the landlord should give to the same tenant a second regular notice, in the usual form, to quit at the termination of the next, or any subsequent year of the tenancy, without referring therein to auy claim for double value, and without having taken any steps, in the interme- diate time, to enforce the first notice, it may be doubted, whether such second notice will not also amount to a waiver of the first. (p) Doe, d. Briefly, v. Palmer, 16 (?) Ante, 122, 123. Fast, 69. AS BETWEEN LANDLORD AND TENANT. In a case where a landlord, after the delivery of a notice to quit, promised the tenant that he should not be turned out until the place was sold, and after the sale of the premises, brought an ejectment upon a demise anterior to the time of the sale ; it was contended that the per- mission to occupy was a waiver of the antecedent notice, so far as to prevent the tenant from being considered as a trespasser by relation back to the time when the notice expired, and that the demise ought to have been laid pos- terior to the day when the contract for the sale was made. But the Court held, that the permission amounted only to a declaration on the part of the landlord, that until the sale of the place, he would suspend the exercise of his right under the notice, and indulge the tenant by permit- ting him to remain on the premises ; and that it was not intended to vacate the notice, or be destructive of any of the rights which the landlord had acquired under it.(r)[9] The acceptance by the landlord of the douhle value of the premises, given by the stat. 4 Geo. II. c. 28. when the tenant wilfully holds over after the expiration of a written notice to quit, or the bringing of an action of debt for the same, will not be a waiver of the notice ; for the 'double value is given as a penalty for the trespass, and not as a payment between landlord and tenant. But if, after the expiration of a notice to quit by the tenant, the landlord accept the double rent to which he is entitled by the stat. 11 Geo. II. c. 19., it seems that be cannot afterward* (r) WhiUaktr, d. Boult, v. Symondt, 10 East, 13. [9] A notice to quit at the end of the year, is not waived l>y the landlord's permitting the tenant to remain in ponsession an entire year after the expira- tion of the notice. Baggs r. Black, 1 Biuney , 338. 144 OF THE ACTION OF EJECTMENT proceed upon the notice to quit ; for this latter statute re- eo,"ii/es the party by the name of tenant, which the first statute does not, and gives a right of distress for the double rent, which is a remedy applicable only to the relation of landlord and tenant.(s) In cases where the act of the landlord cannot be qua- lified, but must of necessity be taken as a confirmation of the tenancy, as if he distrain for rent accruing after the expiration of the notice, or recover it in an action for use and occupation, the notice will, of course, be waived :(<) but it seems that a pending action for such use and occu- pation will not be sufficient to invalidate the notice; for the landlord may only recover to the time of the expira- tion of the notice, although he claim rent to a later period, (u) By the common law, if a landlord distrained after the ex- piration of a term, though for rent accruing during its con- tinuance, he was held to have acknowledged a subsequent tenancy ; because, by the common law, no distress could be made after the determination of a demise ;(t>) but since tbe statute 8 Ann. c. 14. s. 6. & 7. by which a landlord is allowed to distrain within six calendar months after the determination of a lease for life, for years, or at will, pro- vided his own title, or interest, and the possession of the tenant, from whom such rent became due, be continuing, a distress for rent accruing at the time of the expiration of (s) Doe, d. Cheney, v. Batten, Cow-p. (M) Per Butler, J., Birch v. Wright, 145. Timmins v. Rowlinson, Burr. 1 T. R. 378. et vide Roe, d. Croinjilon- 1603. Soulsbyv. Wring, 9 East, 310. v. Minshall, S. N. P 650. Ryal v. Rick, 10 East, 48. (v) Pennant'* case. 3 Co. 64. (/) Zouch, d. Ward, v. 1 H. Blk.311. A3 BETWEEN LANDLORD AND TENANT. 1 I ."> the notice to quit, if made within the six months, will be no waiver thereof. Next, of the termination of a tenancy by the act of the tenant, which may happen in two several ways ; first, by a notice to his landlord that he intends to quit the posses- sion ;(;) secondly, by the non-payment of rent, or non-per- formance of a covenant.(,r) As the relation of landlord. and tenant is mutual, the principles which govern the first of these modes have been discussed, when treating of the notice to quit as given by the landlord ; and it, therefore, now only remains to inquire into the regulations adopted by the courts in the two latter instances. The right to give a notice to quit is given by the com- mon law, and is necessarily incidental to a tenancy from year to year : the determination of a tenancy by the non- payment of rent, or the non-performance of a covenant, can only arise under an express agreement between the parties, and seldom occurs but where the tenant has a writ- ten lease for a determinate period. It has already been observed,(r/) that an actual entry upon the lands was formerly necessary before an ejectment could be maintained, and that the claimant's title must be of such a nature as to render his entry legal. When, there- (tc) Appendix, No. 4. rially in cases of non-payment of rent, (x) As (he non-payment of rent i, an-session of the. land by the occupier without a knowledge also of the interest he had therein ; and to discover this they must look into the lease itself, where they would find Hie proviso, that the tenant's interest would be forfeited in 148 OF THE ACTION OF EJECTMENT case of bankruptcy. Duller, J. in his judgment on the case, made a distinction between leases for short terms. ;md very long leases, with respect to provisoes of this nature ; because, if they were to be inserted in very long leases, it would be tying up property for a considerable length of time, and be open to the objections of creating a perpetu- ity ; but he afterwards adds, that the principal ground of his decision was, because it was a stipulation not against law, nor repugnant to any thing stated in the former part of the lease, but merely a stipulation against the act of the lessee himself, which it was competent for the lessor to make. (a) Secondly, of what will amount to the breach of any particular covenant, and herein of the proceedings at common law, and under the statute 4 Geo. II. c. 28. on a clause of re-entry for non-payment of rent. The power generally reserved in leases to landlords to re-enter upon the premises, in case the rent shall remain in arrear for a certain time after it is due, is the most common proviso upon which ejectments for forfeitures for breach of covenant are founded, and as several provisions are made, both by the common and statute law, for regu- lating ejectments brought upon such provisoes, a separate consideration of the mode of proceeding upon a clause of re-entry for rent in arrear, seems the most perspicuous method of treating the subject. At the time when provisoes for re-entry were first in- troduced, it was unfortunately the practice to disfigure the principles of law by endless subtleties and distinctions : (a) Roe, d. Hunter, v. Gallicrs, 2 T. R. 133. AS BETWEEN LANDLORD AND TENANT. 149 and the preliminaries required by the common law, before a landlord can bring an ejectment upon a clause of re- entry for non-payment of rent, arc so numerous, as to ren- der it next to impossible for any, unversed in the practice of the courts, to take advantage of a proviso of this nature. First, a demand of the rent must be made, either in per- son, or by an agent properly authorised. (b) Secondly, the demand must be of the precise rent due ; for if he demand a penny more, or less, it will be ill. Thirdly, it must be made precisely upon the day when the rent is due, and pay- able, by the lease, to save the forfeiture : as, where the proviso is, " that if the rent shall be behind and unpaid, by the space of thirty, or any other number of days after the day of payment, it shall be lawful for the lessor to re- enter," a demand must be made on the thirtieth, or other last day. Fourthly, it must be made a convenient time before sun-set. Fifthly, it must be made upon the land, and at the most notorious place of it. Therefore, if there be a dwelling-house upon the land, the demand must be at the front or fore door, though it is not necessary to enter the house, notwithstanding the door be open ; but if the tenant meet the lessor either on or off the land, at any time of the last day of payment, and tender the rent, it is suf- ficient to save a forfeiture, for the law leans against forfei- tures. Sixthly, unless a place is appointed where the rent is payable, in which case the demand must be made at such place. Seventhly, a demand of the rent must be made m/ac/, although there should be no person on the land ready to pay it.(c) Nor are these the only vexatious difficulties to which a (A) /foe, d. Wesit v. Davit, 7 East, (r) 1 Sauml. 287. (n. 16.) 363. l.)0 OF THE ACTION OF EJECTMENT landlord, by the common law, was subject. The courts, notwithstanding his compliance with all the required for- malities, would set aside the forfeiture, upon the payment of the debt and costs, at any time before execution execut- ed ;(rf) and the tenant might at any time apply to a court of equity for relief. Where the ejectment is brought upon a clause of re-en- try, and less than six months rent is due, all these evils still exist ; although, by the wise provisions of the legislature, the landlord is now relieved from the two latter inconve- niences, in all cases were six months rent is in arrear; and is also exempted from an observance of the forms and niceties of the common law, if there be likewise no suf- ficient distress upon the premises. By the 4th Geo. II. c. 28. s. 2. it is enacted, that, " in " all cases between landlord and tenant, as often as it shall " happen that one half year's rent shall be in arrear, and " the landlord or lessor, to whom the same is due, hath " right by law to re-enter for the non-payment thereof, " such landlord or lessor shall and may, without any for- " mal demand or re-entry, serve a declaration in ejectment " for the recovery of the demised premises; or in case the " same cannot be legally served, or no tenant be in actual " possession of the premises, may then affix the same upon " the door of any demised messuage ; or in case such eject- " ment shall not be for the recovery of any messuage, then " upon some notorious place of the lands, tenements, or " hereditaments, comprised in such declaration in eject- u ment, and such affixing shall be deemed legal service " thereof, which service or affixing such declaration in (d) Hoe, d. Wttt, T. Dane*, 7 East, 363,, and the caw there tiled. AS BETWEEN LANDLORD AND TENANT. 151 4 ejectment, shall stand in the place and stead of a demand " and re-entry; and in case of judgment against the ca-it:il " ejector, or nonsuit for not confessing lease, entry, and " ouster, it shall be made to appear to the court where " the said suit is depending, by affidavit, or be proved upon " the trial, in case the defendant appears, that half a year's " rent was due before the said declaration was served ; " and that no sufficient distress was to be found on the de- " mised premises, countervailing the arrears then due, and " that the lessor or lessors in ejectment had power to re- " enter ; that then, and in every such case, the lessor or " lessors in ejectment shall recover judgment and execu- " tion, in the same manner as if the rent in arrear had been " legally demanded, and a re-entry made ; and in case the " lessee or lessees, his, her, or their assignee or assignees, ; ' or other person or persons claiming or deriving under " the said leases, shall permit and suffer judgment to be " had and recovered on such ejectment, and execution to " be executed thereon, without paying the rent and arrears, ; ' together with full costs, and without filing any bill or i; bills for relief in equity, within six calendar months after " such execution executed ; then such lessee, &c. and all " other persons claiming and deriving under the said lease. " shall be barred and foreclosed from all relief or remedy " in law or equity, other than by writ of error, for reversal " of such judgment, in case the same shall be erroneous. " and the said landlord or lessor shall from thenceforth " hold the said demised premises discharged from such " lease ; and if on such ejectment, a verdict shall pass for " the defendant, or the plaintiff shall be nonsuited therein. " except for the defendant's not confessing, &c. then such " defendant shall have and recover, his, her, or their full "costs: provided always, that nothing herein contained ' shall extend to bar the right of auy mortgagee or mort- 152 OF THE ACTION OF EJECTMENT " gagees of such lease, or any part thereof, who shall not " be in possession, so as such mortgagee or mortgagees " shall, within six calendar months after such judgment " obtained, and execution executed, pay all rent in arrear. " and all costs and damages sustained by such lessor, or " persons entitled to the remainder or reversion as afore- " said, and perform all the covenants and agreements, which " on the part and behalf of the first lessee or lessees ought " to be performed." By section 3, " in case the said lessee or lessees, his, her, " or their assignee or assignees, or other person claiming " any right, title, or interest, in law or equity, of, in, or to " the said lease, shall, within the time aforesaid, file one " or more bill or bills, for relief in any court of equity, such " person or persons shall not have or continue any injunc- " tion, against the proceedings at law on such ejectment, " unless he, she, or they shall, within forty days next after " a full and perfect answer shall be filed by the lessor " or lessors of the plaintiff* in such ejectment, bring into " Court, and lodge with the proper officer, such sum of " money, as the lessor or lessors of the plaintiff in the said " ejectment shall, in their answers, swear to be due and " in arrear, over and above all just allowances, and also " the costs taxed in the said suit, there to remain till the " hearing of the cause, or to be paid out to the lessor or " landlord on good security, subject to the decree of the " Court ; and in case such bill or bills shall be filed within " the time aforesaid, and after execution is executed, the " lessor or lessors of the plaintiff shall be accountable only " for so much, and no more, as he, she, or they shall really " and bona fide, without fraud, deceit, or wilful neglect, " make of the demised premises from the time of their cn- " tering into the actual possession thereof; and if what AS BETWEEN LANDLORD AND TENANT. 153 '< shall be so made by the lessor or lessors of the plaintiff, " happen to be less than the rent reserved on the said " lease, then the said lessee or lessees, his, her, or their " assignee or assignees, before he, she, or they shall be " restored to his, her, or their possession or possessions, " shall pay such lessor or lessors, or landlord or landlords, " what the money so by them made, fell short of the re- " served rent, for the time such lessor or lessors of the " plaintiff, landlord or landlords, held the said lands." Section 4. " Provided, that if the tenant or tenants, his, " her, or their assignee or assignees, shall at any time be- " fore the trial in such ejectment, pay or tender to the " lessor or landlord, his executors or administrators, or his, " her, or their attorney in that cause, or pay into the court " where the same cause is depending, all the rent and ar- " rears, together with the costs, then all further proceed- " ings on the said ejectment shall cease and be discontinued; " and if such lessee, &c. or their executors, administrators, " or assigns, shall, upon scch bill filed as aforesaid, be re- " lieved in equity, he, she, and they, shall have, hold, and " enjoy, the demised lands, according to the lease thereof u made, without any new lease to be thereof made to him, " her, or them."[l] [1] But where the proceeding 1 is at common law, the claim of the plaintiff is ttricti juris, and all the niceties required by the common law must be pre- viously complied with to entitle the reversions to re-enter. There must be a demand of the rent due on the last day, at such a convenient time before sun- svi, that the money may be numbered and received, and it is incumbent on the plaintiff to show during what part of the afternoon the demand was made. Jafkson v. Harrison, 17 Johns. 6<>. By a recent statute of New-York, landlords are enabled to regain the pos.- session from refractory tenants, by a process far more summary than the re- medy by ejectment. The statute passed 43d Session, 0830) chap. 194. paff* 176. will be found in Appendix, No. 49. 20 151 OF THE ACTION OF EJECTMENT Some little perplexity attends the wording of these sec- tions, which seem, upon the first reading, to extend only to cases of ejectment brought after half a year's rent due, where the landlord has a right to re-enter, and where no sufficient distress is to be found upon the premises ; but the statute has been held to be more general in its opera- tion, and its provisions (with the exception of the one, which dispenses with the formalities required by the com- mon law upon a clause of re-entry for non-payment of rent) extend to all cases where there .is six months rent in arrear, and a right of re-entry in the landlord. (e) The legislature appear to have four different objects in view, in the enactments of this statute. First, to abolish the idle form of a demand of rent, where no sufficient dis- tress can be found upon the premises to answer that de- mand ; secondly, in cases of beneficial leases which may have been mortgaged, to protect the mortgagees against the fraud or negligence of their mortgagors. Thirdly, to ren- der the possession of the landlord secure, after he has re- covered the lands ; and fourthly, to take from the Court the discretionary power they formerly exercised, of staying the proceedings, at any stage of them, upon payment of the rent in arrear, and costs. The first of these objects is ef- fected by permitting the landlord to bring his ejectment without previously demanding the rent: the second, by permitting a mortgagee not in possession to recover back the premises at any time within six months after execution executed, by paying all the rent in arrear, damages and costs of the lessor, and performing all the covenants of the lease :(/) the third, by limiting the time for the lessee () Roe, d. Wett, v. Davis, 7 East, (/) It is difficult to discover from 363. the report of the case of Doe, d. tt'kit- AS BETWEEN LANDLORD AND TENANT. 155 or his assigns, to make an application to a court of equity for relief, to six calendar months after execution executed : and the fourth, by limiting the application of the lessee to stay proceedings, upon payment of the rent in arrear and costs, to the time anterior to the trial, and making it compulsory upon the Court to grant the applica- tion when properly made.(g) As this statute dispenses with a demand for rent in those cases only where there is no sufficient distress upon the premises, as well as six months rent in arrear, it is still necessary for the lessor to comply with all the formalities of the common law, before he can proceed upon a clause of re-entry for non-payment of rent, if a sufficient distress can be found. (A) But an insertion in the proviso of the lease that the right of re-entry shall accrue upon the rent be- ing lawfully demanded, will not render a demand necessary if there be no sufficient distress, for it is only stating in express words, that which is in substance contained from the prin- ciples of the common law in every proviso of this nature. () fold, v. Roe, 3 Taunt. 402, what was (g) Roe, d. West, v. Davit, 1 East, the true point submitted to the judg- 363. mcnt of the court. It is quite clear it (A) Doe, d. Forster, v. Wandlcas, 7 is not (he one stated in the margin, T. R. 117. Vide Smith v. Spooner,3 viz. " that the mortgagee of a lease Taunt. 246252. has the same title to relief against an (i) Doe, d. Schofald, v. Alexander, ejectment for non-payment of rent, 2. M. &. S. 525. Lord Ellenborough, and upon the same terms, as the tes- C. J. differed from the other judges in *ee against whom the recovery is had," this case, he being of opinion, that because by the provisions of this sta- when the words " being lawfully de- tute, a lessee can only have relief manded" were inserted in a proviso against an ejectment for a forfeiture, for re-entry, they were to beconsiik-r upon paying the arrears of rent and ed as a stipulation between the par- costs of suit into court before trial, tics that the rent should be, in fact, whereas a mortgagee may obtain te- demanded (though not with the strict- lief upon paying the arrears, costs, ness of the common law) before eject- aud damages, at any time within tin mcnl brought monlla after execution executed. 156 OF THE ACTION OF EJECTMENT It has been observed, that the provisions of this statute (with the exeption of the one relating to the demand of rent) extend to all cases where there is six months rent unpaid, and the landlord has a right to re-enter. This point has only been decided upon that part of the fourth section which directs all proceedings to be staid upon payment of the rent in arrear and costs before trial ; but the principle of the decision seems to apply to all the other provisions of the statute as well as to the one then immediately before the Court. It was objected in that case that the statute only applied to cases of ejectment brought after half a year's rent due, where no sufficient distress was to be found upon the premises ; but Lord Ellenborough, C. J., says, " the sta- tute is more general in its operation 5 for though the fourth clause has the word such, (such ejectment,) yet the second clause, to which it refers, is in the disjunctive ; stating first, that in all cases between landlord and tenant, when half a year's rent shall be in arrear, and the landlord has a right of re-entry for non-payment thereof, he may bring eject- ment, &c., or in case the same cannot be legally served, &c. or in case such ejectment shall not be for the recovery of any messuage, &c. and iii case of judgment against the casual ejector, or nonsuit, for not confessing lease, entry, and ouster, it shall appear by affidavit, or be proved upon the trial, in case the defendant appears, that half a year's rent was due before the declaration served, and that no suf- ficient distress was to be found on the premises, and that the lessor had power to re-enter ; then, and in every such case, the lessor in ejectment shall recover judgment and execution."(&) By the words of the fourth section the lessee is to pay the (t) Roe, d. JF/, v. Daris, 7 East, 363 AS BETWEEN LANDLORD AND TENANT. 157 arrears of rent, &c. into court before the trial ; and no pro- vision is expressly made for his relief in case he should suf- fer judgment to go by default against the casual ejector. If, however, the point should arise, it is probable that the Court would not consider a judgment so obtained as equivalent to a trial, but would grant relief to the lessee at any time before execution executed. In the case of Goodtitle v. Holdfast,(l) which was decided about the time when the statute was enacted, relief was given under such circum- stances ; but as there is no allusion to the statute in the re- port of the case, it is probable that the decision took place before it passed into a law. The provision of this fourth section seems also to extend only to cases where the rent and costs are tendered to the lessor, or paid into court, after action brought ; yet where the tenant tendered the rent in arrear after the lessor had given instructions to his attorney to commence an action, but before the declaration had been delivered, the court set aside the proceedings with costs, although it was urged by the lessor that such tender was merely matter of defence at the trial.(m) Where the ejectment was brought on a clause of re-entry in the lease for not repairing, as well as for rent in* arrear under the statute, it was argued, on a motion to stay pro- ceedings upon payment of the rent, that the case was not within the act, because it was not an ejectment founded -iiiL r ly on the non-payment of rent ; but the court, notwith- standing, made the rule absolute, with liberty for the lessor to proceed on any other title. (n) But where the lessor has (0J/er7>rw,4Geo.n.Sran.900. (n) Purr, hrn*nn, v N P. 97 , W. Blark. 746. 158 OF THE ACTION OF EJECTMENT recovered possession of the premises, a court of equity will not grant relief under the second section, if such recovery was by reason of the breach of other covenants or condi- tions, as well as by the non-payment of rent. And where the tenant applied to the Court of Chancery to relieve against a recovery upon judgment by default against the casual ejector, alleging that the ejectment was brought for a for- feiture incurred by non-payment of rent, which allegation was contradicted by the landlord, who stated in his answer, that the tenant had also broken many of the covenants of the lease, for which the landlord had a right to re-enter ; the court directed an issue to try, whether the landlord knew of any of the breaches of covenant, at the time of bringing the ejcctment.(o) Where the lessors of the plaintiffwere both devisees and executors, and in each capacity rent was due to them, the defendant moved to stay proceedings on payment of the rent due to the lessors of the plaintiff as devisees, they not being entitled to bring ejectment as executors ; there ap- peared to be a mutual debt to the defendant by simple con- tract, and the defendant offered to go into the whole ac- count, taking in both demands, as devisees and executors, having just allowances, which the lessors of the plaintiff re- fused :.the rule was made absolute to stay proceedings on payment of the rent due to the lessors as devisees, and costs.Qp) The proceedings may be staid, either by moving the court, or in vacation time by summons. (y any subsequent act of the lessor. When, however, a lease for years con- tains the common proviso, namely, " that it shall and may be lawful for the lessor to re-enter," or a proviso, " that the term shall cease and determine, if the lessor please "(h) the lease will be only voidable by a breach of covenant ; and the forfeiture may then be waived by a subsequent acknow- ledgment of a tenancy, in the same manner as in all cases of leases for lives. (i) A proviso in a lease to re-enter for a condition broken, (h) Doe, cl. Brutmc, v. Old, K. B. () Co. Lift. 215, (n). Pennant's Sittings after T. T. 1814. M. S. case, 3 Co. 64, 65. 176 OF THE ACTION OF EJECTMENT operates only during the term, and cannot be taken advan- tage of after its expiration. Thus, where a lease for ninety- nine years, if A. and B. should so long live, was granted, with a proviso giving the power of re-entry, in case the lessee should under-let the premises for the purpose of tillage, and an under-tenant of the lessee ploughed up, and sowed the land, but the lessor did not enter during the continuance of the estate ; it was held in an action of trespass by the lessor against the under-tenant, for enter- ing upon the land, after the determination of the estate, for the purpose of carrying off the emblements, that the plain- tiff, having never been in possession by right of re-entry for condition broken, could have no advantage thereof, and that the defendant, who ploughed and sowed the land, was entitled to take the emblements. (j) (j) Johns v. Wh'ilhy, 3 Wils. 127. 177 CHAPTER VI. OF THE ANCIENT PRACTICE ; AND THE CASES IN WHICH IT IS STILL NECESSARY. WHEN the remedy by ejectment is pursued in an in- ferior court, the fictions of the modern system are not ap- plicable, for inferior courts have not the power of framing rules for confessing lease, entry, and ouster, nor the means, if such rules were entered into, of enforcing obedience to them.() When, also, the premises are vacated, and whol- ly deserted by the tenant, and his place of residence is unknown, (/) the modern practice, for reasons which will be noticed in a subsequent chapter,(m) cannot be adopted. When, therefore, the party brings his action in a superior court, the possession being vacant,(n) and the lessor's (it) The Kins; v. Mayor of Briftow, (I) Strict proof of this fact will be 1 Keb. 690. Sherman v. Cocke, 1 required ; and if it appear, that the Keb. 795. It is said by Gilbert, C B. premises were not wholly deserted, or that if the defendant, in an inferior that the plaintiff's lessor knew where court, enter into a rule to confess the tenant lived, a judgment obtained lease, Lc. and the cause be removed, by means of the ancient practice will and the judge of the inferior court be set aside. A very little matter grant an attachment against the de- has been held sufficient to keep pos- fendant for disobedience to the rule, session, such as, leaving beer in a the superior court will grant an at- cellar, or hay in a barn. (.Savage v. tiu-hmcnt against the judge, for ex- Dent, Stran. 1064. Jones, d. (jrijfitlis, ceeding his authority, and obstructing v. March, 4 T. R. 464.) the course of the superior court. (m) Chap. VII. Cttilh. Eject. 38.) (n) Appendix, No. 7. 23 178 OF THE ANCIENT PRACTICE. abode unknown, and when he is desirous of trying his title in a court of inferior jurisdiction, all the forms of the an- cient practice must be observed : a lease must be sealed upon the premises ; an ouster actually made ; and the parties to the suit will be real, and not imaginary persons. The manner of proceeding in these cases is as follows. A, the party claiming title, must enter upon the laud be- fore the essoign-day of the term of which the declaration is to be entitled, and whilst on the premises, execute a lease of them to B.(any person(o) who may accompany him,) at the same time delivering to him the possession by some one of the common modes. C. (some other person) must then enter upon the premise's, and eject B. therefrom ; and having done so, must remain upon them, whilst B. delivers to him a declaration in ejectment, founded upon the de- mise contained in the lease ; and, in all respects, like the declaration in the modern proceedings, (p) except that the parties to it are real instead of fictitious persons ; B. being made the plaintiff, A. the lessor, and C. the defendant. To this declaration, a notice must be added, signed by .B.'s attorney, and addressed to C., requiring him to appear and plead to the declaration, and informing him that if he do not, judgment will be signed against him by default.(<7)[9] (o) Attornies form an exception to tainance and brocage, no attorney this statement ; for, by the rules of B. shall be lessee in an ejectment." R. and C. B. (M. T. 1654.) it is order- (p) Appendix, No. 12. ed " that for the prevention of main- (q) Appendix, No. 8. [9] The strict principles relative to proceedings in ejectment for a vacant possession in England, do not apply to the unsettled lands in this country. So the Holland Land Company were let in to defend, where a lease had been sealed on the premises. Saltvnstall v. U'/iiif, 1 Johns. Cas. 221. But defendant, in such case, must stipulate to admit, that he was in pos- session at the time of the commencement of the suit Wood v. Wood, 9 Johns. 258. OF THE ANCIENT PRACTICE. 179 When the landlord, or person claiming title, does not wish to go through this eeromony himself, he may execute a power of attorney, authorizing another to enter for him ; (r) and the proceedings are then the same as if he himself entered. But it must be remembered, that if it be neces- sary, when the ancient practice is used, to join the wife in the demise, the lease must be executed by the husband and wife, in their proper persons, because a. feme covert cannot constitute an attorney. (s) When the ancient practice is resorted to, the suit must proceed in the name of the casual ejector, and if the pro- ceedings are in a superior court, no person claiming title will be admitted to defend the action. If, therefore, in such case, the right to the premises be disputed, the party who seals the lease must, in the first instance, recover the possession, and the other party must afterwards bring a common ejectment against him, to try the title. (t) When the proceedings are in the King's Bench, an affi- davit must be made () of the sealing of the lease, ouster of the plaintiff, &c. ; and upon this affidavit a motion is made for judgment against the defendant, and unless he appears and pleads, judgment will be signed against him, upon moving the court, as in a common ejectment.(z;) In the Common Pleas, this affidavit and motion are un- necessary, and instead of them a rule to plead must be given (r) 2 Sell. Prac. 131. Appendix, (/) Ex pnrle Beauchnmp and Burly A \os. 6 and 6. Barn. 177. B. N. P. 96. (3) Wilson v. Rich, 1 Yelv 1 S. C. (u) Appendix, No. 9. 1 Brown, 134. Plomer v. Hockhtod, (v) Smart ley v. Ifenden, 1 Salt. 2 Brown, 248. S. C. Noy. 133. Sed 256. 2 Sell. Prac. 1*1. vide Hopkins, cage Cro. Car. 165. Gardiner T. Ataman, Cro. Jac. 617. 180 OF THE ANCIENT PRACTICE. on the first day of term, as in other actions, and if there be no appearance and plea at the expiration of the rule, judgment may be signed.(zc) It is immaterial, as far as the forms of sealing the lease, &c. are concerned, whether the action be commenced in a superior, or inferior court ; but the subsequent proceed- ings in inferior courts must, of course, depend upon the ge- neral practice in them in other actions, and cannot form a part of this treatise. How far it may even be necessary to give the tenant in possession notice of the claimant's pro- ceedings, in an ejectment brought in an inferior court, may appear doubtful, when it is remembered, that such notice was only requisite in the superior courts, in consequence of a rule made for that particular purpose ;(;r) but it cer- tainly is more prudent to conform to the general prac- tice in this respect, and the notice need not to be given until after the entry, and execution of the lease. (y) It seems, that an ejectment cannot be removed from an inferior to a superior court, except by a writ of habeas corpus ; but it is difficult to discover the principle, upon which the writ of certiorari is considered insufficient.(z) When an ejectment is removed from an inferior to a su- perior court, the tenant in possession is entitled to the same privilege of confessing lease, entry, and ouster, and de- fending the action, as if the plaintiff had originally de- clared in the superior court.(a) When the lands lie partly within and partly without -the (w) 2 Sell. Prac. 131. (z) Highmore v. Barlow, Barn. 421. (z) Ante, II. Men \. Foreman, 1 Sid. 313. (y) 1 Lill. Pr. Reg. 676. () Gilb. Eject. 37. OF THE ANCIENT PRACTICE. 181 jurisdiction of the inferior court, the defendant cannot plead above the jurisdiction of such inferior court, because the demise is transitory, and may be tried any where. (6) As the plaintiff, in the ancient practice, is a person ac- tually in existence, his death would, of course, abate the action according to the general rules of law ; but as the courts look upon the lessor of the plaintiff to be the person concerned in interest, they will not suffer him to be de- prived of his remedy, by such an event. If, therefore, there be any one of the same name with the plaintiff, he will be presumed to have been the person ; and it has also been held to be a contempt of the court, to assign for er- ror the nominal plaintiff's death, (c) In like manner, before the introduction of the modern practice, it was said, that if the plaintiff released to one of the tenants in possession, who had been made defendant, such release would be a good bar, because the plaintiff could not recover against his own release, since he was the plaintiff upon the record 5 but the courts considered such a release as a contempt, and it does not appear that a plea of this nature ever occurred in practice. (d) The casual ejector is, also, in the ancient practice a real person, but the court will not allow him to confess judg- ment ; and where, upon proceedings on a vacant posses- sion, the casual ejector gave a warrant of attorney for this purpose, the court set the judgment aside. (e) Where an action of ejectment, and an action of assault (b) Hall T. Hugh*, 2 Keb. 69. Anon. Salk. 260. Vide Doe, d. Bync, (e) Moore v. Goodrigti, Stran. 899. v. Brewer, 4 M. fc. S. 300. (d) Peto v. Checy, 2 Brown, 128. (e) Hooper v. Dale, Stran. 531. 182 OF THE ANCIENT PRACTICE. and battery, were joined in the same writ, after verdict it was moved in arrest of judgment, because it was without precedent ; but the court seemed to think the misjoinder cured by the verdict.(/) (/) Bird*. Sndl, Hob. 249. et vide Gilb. Eject. 62. 183 CHAPTER VII. OF THE DECLARATION IN THE MODERN ACTION OF EJECT- MEJNT, AND NOTICE TO APPEAR. THE proceedings in the modern action of ejectment being founded in fiction, and regulated altogether by the courts of common law, a system of practice has gradually been formed, adapted to the uses of the particular remedy, but for the most part independent of the general practical regulations in other actions. The singularity of the modern practice has, indeed, occasioned it to be denominated a string of legal fictions ; and the remedy itself has fre- quently been called a child and creature of the Court. To enable a party claiming title to lands, to take ad- vantage of the modern method of bringing an ejectment, it is necessary, as we have already observed. (g) that a per- son should be in possession of the premises in question 5 that is to say, that they should not be vacated and alto- gether destrted ;(h) or at least (supposing them to be so de- serted) that the residence of the last tenant be not un- known to the claimant. (t) This arises from a particular regulation of the modern practice, which requires an a Hula - (ft) Ante, 177. arc created, in particular cases, by (h) Savage v. Dent, Stran. 1064. the provisions of the statutes 4 Geo. :fonu,d. Griffiths, v JfanA,4T R 464. II. c. 28 11 Geo. II. c. 19. Vide (t) Exceptions to this general rule unit, 150. 161. 184 OF THE DECLARATION. vit of the service of a declaration in ejectment upon the tenant in possession, before judgment can be obtained against the casual ejector; and as this service cannot, of course, take place, when a tenant does not exist, the neces- sary affidavit cannot then be made, but the claimant is compelled to resort to the ancient practice. With this single exception, however, a claimant in eject- ment may always proceed, in the superior courts, by the modern method. The suit is commenced by the delivery of the declara- tion against the casual ejector, to the tenant in posses- sion ; for, as the plaintiff and defendant in the action, are only fictitious persons, the suing out of a writ would be an useless form. This declaration is, in fact, in itself a kind of writ, or process ; and is the only means by which the party in possession is informed of the claim set up by the lessor, and required to appear and defend his title. (j) The declaration, when the proceedings are in the King's Bench, may be framed to answer either to an action com- menced by bill, or by original, but the latter is the prefer- able and most common method ; because the action is then considered by the Court, as though it actually had been commenced by original, and no writ of error can be brought thereon except in Parliament. In the Common Pleas, the declaration is, of course, always framed as if the proceed- ings were by original.(k) (j) A declaration in ejectment is tenant at the time of its delivery. Rex go far considered a process of the v. Unitt, Stran. 667. court, that the court will punish as a (&) Appendix, No. 12. 14, 1~> contempt any improper conduct of the OP ENTITLING THE DECLARATION. 185 The declaration should regularly be entitled of the term immediately preceding the vacation in which it is deliver- ed ; but if it be not entitled of any term, the omission will be immaterial, provided the tenant has sufficient notice given him therein to appear to the action. As where the declaration was delivered before the essoiga day of Hilary term, and the notice at its foot was dated Jan. 1, 1818, and was to appear within the four first days of the next term.(/) With respect also to the term of which the declaration against the casual ejector may be entitled, a striking dissi- milarity from the practice in all other actions prevails. The demise stated in the declaration, is the title upon which the plaintiff is supposed to enter, and the ouster the sup- posed wrong for which the action is brought. The plain* tiff has, consequently, no cause of action antecedently to the day of the ouster ; arid according to the general rules of pleading, could not entitle his declaration anterior to that time. But it is otherwise in an ejectment ; for the defendant being a nominal person, cannot take advantage of the objection, and if the tenant appear, and apply to be admitted a defendant instead of the casual ejector, he will be compelled by the consent rule to accept a declaration entitled of a subsequent term. Therefore, if the demise be laid in the vacation time, and the declaration against the casual ejector be entitled of the preceding term, it will be sullicient ; because, if the party in possession dc- tmd tli* 1 action, the declaration against him (as will be ex- plained hereafter) will be entitled of the subsequent term; and if he leave the suit undefended, judgment will be taken out against the casual ejector.^//*) (I) Goodtitle, d. Price, v. Badtitlc, (m) Imp. K. B. 642. 1 Lill. Prac. H. T. 1818. K. B. M.S. Reg. 680. Turutall v. Brcnd, 2 Vent. 174. 24 186 OF THL VENUE. The venue in ejectment is local, and confined to the county in which the lands are situated. (n) The demise declared upon by the plaintiff, in the mo- dern practice, is fictitious only ; but still it must be con- sistent with the title of his lessor ; that is to say, such a demise must be supposed to be made, as would, if actually made, have transferred the right of possession to the lessee. Thus, if there be several lessors, and a joint demise by them all be alleged, such a title must be shown at the trial, as would enable each of them to demise the whole ; be- cause, if anyone of the lessors have not a legal interest in the whole premises, he cannot in law be said to demise them. As, where A. was tenant for life, and B. had the remainder in fee, and they made a lease to C., and de- clared upon the lease as a joint demise, it was held bad ; because, during j^.'s life, it was the lease of .#., and the confirmation ofB., and after the death of .4., it was the lease of B., and the confirmation of -df., but not a joint demise. (o) Joint tenants, or parceners, have a sufficient interest in the lands held in joint tenancy, or parcenery,[l] to entitle them to make a joint demise of the whole premises, but te- nants in common have not : and the reason for this differ- ence seems to be, that tenants in common have several and distinct titles and estates, independent of each other, so as to render the freehold several also ; whilst joint tenants (n) Anon. 6 Mod. 222. Mostyn v. (o) King v. Bery, Poph. 57. Tre- Fabrigat, Cowp. 161. 176. port's case, 6 Co. 15, (6). [1] Coparceners may sever in ejectment, and one coparcener may bring ejectment on her separate demise. Jackton v. Sample, 1 Johns. Cas. 23. OF THE DEMISE. 187 and parceners are seised per my et per tout, derive by one and the same title, have a joint possession, and must join in any action for an injury thereto ; so that each of them may properly be said to demise the whole. (/>) It is not, however, compulsory upon joint tenants, or par- ceners, to allege a joint demise ; for if a joint tenant, or parcener, bring an ejectment without joining his companion in the demise, it is considered as a severance of the tenan- cy, and he will be allowed to recover his separate moiety of the land. And if all the joint tenants, or parceners, join in fie^ action, but declare upon separate demises by each, it is held, that they may recover the whole premises ; % because, by the several demises, the plaintiffhas the entire interest in the whole subject matter, although the joint te- nancy is severed by the separate letting. (q) When two, or more, tenants in common, are lessors of the plaintiff, a separate demise must be laid by each,(r)[2] or they must join in a lease to a third person, and state the demise to the plaintiff to have been made by their lessee. The first is the most usual mode of proceeding, and the de- claration need not state the several demises to be of the (p) Moore v. Fwrtden, 1 Show. 342. (q) Doe, d. Gill, v. Pearson, 6 East, Millener v. Robinson, Moore, f>82. Bo- 173. Roe, d Roper, v. Lonsdale, 12 ner v. Juner, Ld. Kay m. 726. Mantle East, 39. Doe, d. Marsack, v. Read, T. Wellington, Cro. Jac. 166. Morris 12 East, 57. Doe, d. Latham, T. v. Barry, 1 Wils. 1. Htatheriy, d. Fenn, 8 Campb. 190. Worthington, r. Wetlon, 2 Wils. 232. (r) App. No. 14, 16. [2] It has been determined by the Supreme Court of the State of New- York, that tenants in common may declare either on a joint or separate de- mise. Jackson v. Bratlt, 2 Caines' Rop. Ifiy, 175. But were it not for the fic- tion of lease, entry, and ouster, they could not join ; for it is a general rule, that in all actions real and mixed, tenants in common must srw-r. because tkey have several freeholds, and claim by scvrnl titles. //',/ 188 OF THE DEMISK. l share* hel<>n;_M!ii: (o the several tenants respective- ly ; but each demise may be alleged generally to be of the whole premises demanded ; for under a demise of the whole an undivided moiety may be recovered. (r)[3] When any doubt exists as to the party in whom the legal title is vested, it is usual to declare upon several distinct demises by the several persons concerned in interest,() and the claimants will not then be confined at the trial to one particular demise, but will be allowed to resort to any included in the declaration, under which they may be able to prove a title to the premises. Difficulties of this nature frequently occur when trustees are lessors of the plaintiff; and it is always advisable to lay separate demises by the trustees, and ceslm que trust, unless the effect of the statute of uses upon the trust is most clear and indisputable. But application should, in strictness, be first made to such trus- tees for permission to make use of their names ; and where demises are inserted in the names of any parties without their consent, the court, on motion, will order such demises to be struck out of the declaration, unless the justice of the case should be defeated thereby. But where a plaintiff laid a demise by his assignees, without their permission, (they having given up to him the property in the premises,) and obtained judgment and execution thereupon, the court (r) Doe, d. Bryant, v. H'ippel, 1 (*) Appendix, No. 14, 15. Esp. 330. [3] In ejectment, separate demises, from several lessors, between whom there is no privity of interest, may be laid in the declaration; and, at the trial, the plaintiff may prove the separate titles to separate parts of the pre- mises, and recover accordingly. For it cannot operate as a surprise on the defendant, and it is a course that should be encouraged to prevent multiplicity f suits. Jackson v. Sidney, 12 Johns. 185. OF THE DEMISE. 189 refused to set the proceedings aside at the instance of the defendant in the ejectment, notwithstanding an affidavit from one of the assignees, that he knew nothing of the pre- mises in question. (<)[4] The day on which the demise is stated to have been made, is so far material, that it must be subsequent to the time when the claimant's right of entry accrues ;[5] for if the lessor have not a right to enter, he cannot have a right to demise the lands, and, consequently, the plaintiii' be nonsuited at the trial ; for his lessor cannot be supposed to have made an illegal demise. (u) It is usual, however, to lay the demise as far back as the lessor's title will admit; because the judgment in ejectment is conclusive evidence as to the title of the lessor, for all the mesne profits accru- ing subsequently to the day of the demise ;(c) and when (/) Doe, d. Vine, r. Figgint, 3 (u) Ante, 10. Goodtitle, d. Gallo- Taunt. 440. way, v. Herbert, 4 T. R 680. (v) Alslin \. Purkn, Burr. 665. [4] A lessor may be struck out of the declaration on affidavit of his having no interest in the premises, except under special circumstances. Jackson v. Sclover, 10 Johns. 368. It' the name of a person is used as lessor without hi.s consent, it may be struck out on application to the court ; but if it be not struck out, he is inad- missible a a witness. Jackson T. Ogden, 4 Johns. 140. \Vlu-ro a person is made lessor against his consent, and the nominal plain- tiff afterwards becomes nonsuit, such lessor is not liable for the costs, but the plaintiff's attorney is liable. People v. Bradl, 6 Johns. 318. But where the lessor was brought up on attachment, and denied that he ever consented to have his name used, which was directly denied by contra- dicting affidavits, Court said that the lessor niiiit pay the costs, and take his remedy over against the attorney, but they respited the recognizance, to give him an opportunity to bring his action against the attorney. People v. Bradl, 7 Johns. 539. [5] The demise must be laid at, or subsequent to, the time that plaint iff > ritrht nrcnied. Van Allen v. Rogers, 1 Johns. Ca. 283. 190 OP THE DEMISE. there are any doubts as to the period when the lessor's title accrued, it is customary to state different demises by him on different days. In an ejectment on the demise of an heir by descent, the demise was laid on the day the ancestor died, and held to be well enough ; for the ancestor might die at five o'clock, the heir enter at six, and make a lease at seven, which would be a good lease. (tc) It seems, also, according to Lord Hardwicke, that a posthumous son, taking lands under the provisions of 10 and 1 1 Wm. 111. c. 16. would be en- titled to lay the demise in an ejectment, from the day of his father's death. (a?) It has already been observed, that in an ejectment, by the surrenderee, of copyhold premises, the demise may be laid against all persons but the lord, on a day between the times of surrender and admittance, provided the surren- deree be admitted before trial. (y) But this doctrine of relation does not apply where the assignees of a bankrupt are the lessors of the plaintiff, so as to enable them to recover the freehold lands of the bank- rupt, upon a demise subsequently to the act of bankrupt- cy, but before the date of the bargain and sale by the commissioners ; for the freehold remains in the bankrupt, though not benefiicially, until taken out of him by the con- veyance, (z) In like manner, a conveyance to a creditor of an insol- vent debtor's estate by the clerk of the peace, (in whom it (w) Roe, A. Wrangliam, v. Hcrtiy, (y) Ante, 66. 3 Wils. 274. (s) Doe, d. Esdaile, v. Mitchell, % (x) B. iN. P. 10$. M. k S. 446. OF THE DEMISE. 191 is vested, upon the order for the insolvent's discharge, by the stat. 41 G. III. c. 70. s. 15. until the subsequent con- veyance to the creditor,) does not vest such estate in tin creditor, by relation, either to the date of the order or of the conveyance, but only from the actual execution of such conveyance by the clerk of the peace ; and, therefore, such creditor cannot recover in ejectment, upon a demise laid anterior to the execution of the deed, although subse- quent to the time when the estate was out of the insolvent debtor, and the order made to convey the same to the les- sor.^) When a pauper has been let into possession of premises by the overseers of a parish, the demise should be laid by the overseers for the time being when the ejectment is brought, if the pauper has done any act recognizing a hold- ing under them ; but otherwise by the overseers who let him into possession, or the last set of overseers whom he has acknowledged as his landlords. (6) When a fine with proclamations has been levied, and an actual entry is necessary to avoid it, the demise must be laid on a day subsequent to the entry. (c) Tenancies at will scarcely exist at the present day ; but when an ejectment is brought against a tenant at will, the demise must be laid subsequently to the time when posses- sion is demanded, that is to say, subsequently to the de- termination of the will.(cJ) () Dot, A Wliatley, v. Telling, 2 (c) Berington, d Dormer, v. Park East, 256. hurst, And. 125. S. C. Stran. 1086 (b) Doe.d. Grundy, v. Clarke, M S.C. Willes,327. S. C. 13 East, 489. East, 488. (d) JtnU, 103. 192 OF THE DEMISE. When au ejectment is intended to be brought against a tenant from year to year, and the time of the coinm> intMil of the tenancy is unknown, the only sure method of avoiding a nonsuit is to give a general notice to quit "at the end and expiration of the current year of the tenancy thereof, which shall expire next after the end of one half year from the date of the notice," and to lay the demise eighteen months after the delivery of such notice.(e) The length of the term, during which the premises are alleged in the declaration to have been demised to the plaintiff, is wholly unconnected with the title of the claim- ant, and may be of longer duration than his interest in the land.(y* ) A contrary doctrine was once, indeed, maintained, upon the principle, that by a judgment in ejectment the plaintiff recovers his term mentioned in the declaration, and, therefore, if the term declared on, be of greater du- ration than the lessor's title, as, for instance, if the lessor be entitled to the lands for three years only, and the plain- tiff declare on a demise for five, he would wrongfully hold the lands for the last two years. (g) But this doctrine has since been very correctly overruled : because if the lessor have the right of possession but for a month, and make a lease for seven years, it will enure to his lessee for the month duly, and during that time he will be entitled to the possession : and, as a judgment in ejectment is not admit- ted as evidence of the lessor's title, he cannot by reason of it be enabled to keep possession after the month has ex- pired.^) (e) Vide post, chap. 10. (g) Roe r. Williamson, 2 Lev. 14<> (/) Doe, d. Short, v. Porter, 3 T. S. C. 3 Keb. 490. R. 13. (A) B. N. P. 106. Clerkt v. Rmoell 1 Mod. 10. OF THE DEMISE. 193 Seven years is the term usually declared upon ; and the only direction necessary to be given upon this point is, that the term be of a length sufficient to admit of the lessor's re- covering possession of the land before its expiration ; al- though the courts arc now very liberal in permitting lessors to amend in this respect, as will be stated hereafter. It was for some time, even after the introduction of the modern practice, holden necessary, that when an ejectment was brought by a corporation aggregate, thjy should exe- cute a power of attorney, authorizing some person to enter and make a lease on the lands ; that such person according- ly should enter, and make a lease under seal ; and that the declaration should state the demise to be by deed.(i) These forms, it seems, were deemed necessary upon the principle, that a corporation aggregate cannot perform any corporate . act otherwise than under the corporation seal, nor make an attorney, or bailiff, but by deed. They could not, it was therefore said, enter and demise upon the land in person, as natural persons could ; nor substitute an attor- ney to enter into a rule for their costs ; nor would an at- tachment go against them for disobedience to that rule. They therefore made an actual lease upon the lands, and then the attorney proceeded in the common method. But, since the principles of this action have been more clearly understood, none of these peculiarities are necessary ; and the demise may now be laid in the general way, without any power of attorney being made, any lease being sign- ed,^') or any statement of such a lease being introduced in- to the declaration. One case only is indeed to be found upon the latter point, and in that, the question arose after (i) Gilb. Eject. 35. (j) Furlcy, d. Mayor of Canterbury, v. Wood, I Esp. 198. 25 194 OF THE DEMISE. the verdict ;(j) but from the reasoning then used by the court, no doubt can be entertained that the principle would be extended to every stage of the action ; and that a plain- lilFin ejectment would never be nonsuited for the omission of such a slatement.(A;) The demise is still certainly some- times stated to be by deed; and it is immaterial whether it be so or not, as, notwithstanding the statement, no proof of the deed is required. (/) If a corporation be aggregate of many, they may set forth the demise in the declaration, without mentioning the Christian names of those who constitute the corporation ; but if the corporation be sole, as if the demise be by a bishop, the name of baptism must be inserted. The rea- son of this is, that in the first case the name solely consists of its character, but in the last, in its person ; therefore, there cannot be a sufficient specification of that person with- out mentioning his name.(m) In the case of Swadling v. Piers,(n) it was ruled, that in an ejectment for tithes, the plaintiff must declare on a demise by deed, because tithes cannot pass but by deed ; but this decision has since been overruled, and the state- ment of a deed seems even in this case to be no longer necessary. (o) (j) Partridge v. Ball, Ld. Rayui. not being stutetl to be by deed. (Kent 136. S. C. Carlli. 390. Sum. Ass. 1809, M. S.) (/fc) In the case of Doe, d. Dean and (I) Purity, d Mayor of Canterbury, Chapter of Rochester, v. Pierce, the de- v. Wood, \ Esp. 198. misc was in the common form, and (m) Carter v. Cromwell, Sav. 128, many objections were taken upon o- citrd, Dyer, 86. thcr points by the defendant's counsel, (n) Cro. Jac. 613. and overruled ; but they never advert- (o) Partridge v. Ball, Ld. Raym. ed to the circumstance of the demise 13G. S. C. Garth. 390. OF THE DEMISE. 195 It seems also to have been holden, that on a demise by the master and fellows of a college, dean and chapter of a cathedral, master or guardian of an hospital, parson, vicar, or other ecclesiastical person, of any lands, &c. the de- claration should state that there was a rent reserved, &c. pursuant to the statute 13 Eliz. c. 10. ; but this form can- not now be necessary.(/>) A similar doctrine was once applied to the case of an infant ;(q) but it has been long settled, that an infant may t make a lease without rent to try his title. (r) When, how- ever, a demise is laid by an infant, his father, or guardian, should be made plaintiff, instead of a nominal person, in order to save the trouble and expence of giving security for the costs, which he would otherwise be compelled to do.(j) It is not necessary to state, in the declaration, that the premises are situated in a parish, hamlet, &c. ; it is suffi- cient to mention the name of the place in which they are situate, without also describing it by the name of its eccle- siastical or civil division. (/) And in one case, where even the name of the place was omitted when describing the premises, but such name could be collected from other parts of the declaration, the Court held the description to be sufficiently ccrtain.(u) When, however, the premises (p) Carter v. Cromwell, Sav. 129. (u) Goodright, d. Smalhcood, v. (9) Lill. Prac. Reg. 673. Strotlicr, Black. 706. The declaration (r) Zonck v. Parson*, Burr. 17D4. in this case stated, that one M. S. " at 1806. Hancell in the county of B." demised (t) Abie T. Wind/turn, Stran. 694. to plaintilTuvo messuages, from which Anon. 1 Wilg. 130. messuages defendant at Haswtll afore- (t) Goodtillc, d Bembriiliff, v. Wnl- taid, ousted plaintiff; and the Court trr, 4 Taunt. 671. considered, that the. statement of thr 196 OP THE DEMISE. are described as lying in a parish, hamlet, &c. such de- scription must be a correct one, and an uncertain or im- proper description will be fatal. Thus, in an ejectment for lands, " in the parishes of A. and J5., or one of them," the judgment was arrested for the uncertainty, although it appeared that the parishes had originally been one, and lately been divided by an act of parliament, and that the boundaries were not settled.(r) But if the words " or one of them" had been omitted, it seema the description would have been sufficient, though all the lands were contained in one of the parishes. (a>) Where the premises were described as situate " in the united parishes of St. Giles in the Fields, and St. George, Bloomsbwy, and it appeared that those two parishes were united together by Act of Parliament, for the maintaining of their poor, but for no other purpose, the variance was held fatal ; for by the description, the parishes were stated as if they were completely blended together, and formed only one parish, when, in truth, they remained entirely dis- tinct, except as to the maintenance of the poor.(x) But ouster being at Haswell, amounted to ejectment had been of an acre of a sufficient certainty that the lands laud in D. and F., and it appeared demised lay at Haswell. that the whole acre was in D., it would (v) Goodright v. Fawson, 7 Mod. be well enough. The reason for this 457. S. C. Barn. 184. Cottingham v. diversity seems to be, that the acre King, Burr. 624 and the authorities being the whole thing demanded, the there cited. description is sufficiently certain, al- (w) Goodwin v. Blackman, 3 Lev. though it all be in one parish ; where- 334. In this case the ejectment was as, when only a tenth part isdemand- " for a tenth part of a messuage in D. ed, it is uncertain which tenth part is and F." and the whole messuage ap- meant, and, therefore, as no tenth pearing in evidence to lay in D., and part answers the description, the she- no part in F., the description was held riff could not give execution; tamen ill, because it was, " precisely of the quttre et vide Burr. 330. el ante, 20. tenth part of an entire thing ;" though (x) Goodtitle v. Pinxent, d. Ln/nmi- it was said by the court, that if the man, 2Campb.274. S.C.6Esp. 128. OP THE DEMISE. 197 where the premises were described as situate in the parish of West Putworth and Bradworthy, and it appeared that West Putworth and Bradwortky were separate parishes, the Court held the description to be sufficiently certain, reject- ing the word parish as surplusage, and considering the de- mise as of lands in West Putworth and Bradworthy.(y) An.d where the premises were laid to be at the parish of Farn- ham, and were proved at the trial to be in the parish of Farnham Royal, it was held not to be a fatal variance, un- less it could be proved that there were two Farnhams.(z) When the premises lie in different parishes, it has been usual to enumerate the whole as lying in one parish, and to repeat the description of them as lying in the other parish ; but it seems sufficient to enumerate them once only, describing them as lying in the parishes of A. and B.. or in A. and B. respectively.(a) The number of messuages, acres, &c. mentioned in the demise, need not correspond with the number to which the lessor claims title. He may declare for an indefinite num- ber, as a hundred messuages, a thousand acres of arable land, &c. ; and care should be taken that the number spe- cified in the demise be larger than the number claimed ; because, although if he declare for more than he is entitled to, he may recover less, the reverse will not hold. (6) Upon the same principle, if the lessor of the plaintiff be entitled to a moiety, or other part, of an entire thing, as the half. (y) Goodtitle, d. Brembridge, v. (a) 2 Chitty, Prcc. 395. Walter, 4 Taunt. 671. (6) Denn, d. Burgit, v. Purvis, Bun. (e) Dot, d. Toilet, v. Sailer, 13 326. Guy r. Kami, Cro. Eiiz. 13. TSast, 9. 198 OF THE ENTRY. or third part, of a house, he may recover such moiety, or third part, on a demand for the whole. (c) The entry of the plaintiff on the land need not be alleged in the declaration, to be made on any particular day, al- though in the precedents it is usually so stated. It is suffi- cient if it be declared generally, that the plaintiff entered by virtue of the demise : nor does it seem to have been re- quired, even in the ancient practice, to be more explicit, because, as the plaintiff entered by virtue of the lease, he must necessarily have entered after his title accrued ; though it was then said, that it might have been otherwise, if the declaration had been pr&textu cujus he entered, for the plaintiff might enter unlawfully, or before his time, under pretence of the lease. (d) The day upon which the ouster of the plaintiff, by the casual ejector, is alleged to have taken place, should re- gularly be after the commencement of the supposed lease and entry. This is requisite, in order to support the con- sistency of the fiction ; because, as the title of the plaintiff is supposed to arise from the lease mentioned in the decla- ration, it would be absurd for him to complain of an injury to his possession before, by his own showing, he had any claim to be possessed. But it does not seem absolutely necessary that this consistency should be preserved ; for, as the words " afterwards, to zinf," are always used immedi- (c) Ablett v. Skinner, 1 Siderf. 229. bad ; because of the uncertainty of Goodwin v. Bladtman, 3 Lev. 334. which part, or moiety, the plaintiff is In an ancient case it is said, that if an to have execution. (Winkworth v. ejectment be brought for an acre of Mann, Yelv. 1 14, tamen qiutre, ct r '- land, and the metes and bounds be dc ante, chap. 2.) described in the declaration, and the (d) WakeUy v. Warren, 2 Roll. Rep. jury find th defendant guilty in half 466. Sed vide Douglat v. Shank, Cro. an acre of land, the verdict will be KHz. 766. OF THE OUSTER. 199 ately before mentioning the day of the ouster, it is most probable, upon the principles by which ejectments are at present regulated, that the courts would in all cases consi- der an ouster laid previously to the day of the entry, " at impossible and repugnant," and as such reject it.(e ) Even when the old practice prevailed, and the true principles of the remedy were so little understood, every possible in- tention was made in favour of the plaintiff, when an ouster was alleged anterior to the time of the demise. Thus, on a demise from the 1st of February, 1752, to hold from the 8th of January before, and that afterwards, namely, on the 28th of January, 1752, defendant ejected him, and it was insisted for the defendants, that the plaintiff's title did not commence until the 1st of February, and, therefore, that the ouster was laid too soon ; the court held, that the day of the ouster, being laid under a scilicet, was surplusage, and that " afterzoards" should relate to the time of making the lease, and then all would be well enough.(/) In like manner, on a demise from the 6th of May, anno septimo, by virtue of which plaintiff entered, and was possessed until afterwards, on the 18th of the same month, anno sexto su~ pradicto, defendant ejected him, the court held the decla- ration sufficient ; because the ouster was laid to be on the 1 8th of the same month, which it could not be if it were done in the sixth year, and rejected the word sexto as in- consistent and void.(g) Upon the same principle, where the demise was on the sixth of September, 2 Jac., by vir- tue of which the plaintiff held, until afterwards, (to wit) on the fourth day of September, 2 Jac., defendant ejected him, the declaration was holden good, and the words under the scilicet rejected as surplusage. (h) () Mnms v. Goote, Cro. Jac. 96. (g) Doris v. Purdy, Yelv. 182. B. N. P. 106. (h) Adams v. Goose, Cro. 96. Some (/) B. N. P. 106. old ejectment caei are to be found 200 OF AMENDING THE DECLARATION. From the case of Merrell v. Smilh.(i) it does not seem necessary to allege any particular day for the ouster, pro- vided it appears from the declaration to be subsequent to the commencement of the term, and prior to the bringing of the action ; but in the precedents a day certain is al- ways laid, and it is the better method to mention a parti- cular day. With respect to the duster in an ejectment for tithes, il is said, in the case of Worrall v. Harper,(j) that where the ouster was set forth to have been made in the month of May, it was held ill, because there were no tithes to be ousted of at that season of the year ; but this doctrine is controverted by Gilb-ert, C. B., on the principle, that the law does not judicially take notice of the time when tithe* arise. (/<;) OF AMENDTNG THE DECLARATION. It was formerly the practice, both in the King's Bench and the Common Picas, not to permit the declaration in ejectment to be amended, until the landlord, or tenant, had been made defendant instead of the casual ejector ; in the books, (Goodgain v. Wakefield, from " the day of the date" of the 1 Sid. 7. Evans v. Croker, 3 Mod. lease ; but, since the judgment in 198. Stephens v. Croker, Comb. 83. Pugh v. Duke of Leeds (Cowp. 714.) Higham v. Cooke, 4 Leon. 144. Os- by which it has been determined, that born v. Rider, Cro. Jac. 135. Llew- these expressions shall be construed clyn v. Williams, Cro. Jac. 258. Clay- indifferently, either inclusively, or ex- ton's case, 5 Co. 1.) in which the ous- clusiiely, so as to give effect to ihe ters were laid on the same days as deed, these cases can no longer be the demises, and which were decided authorities. upon the distinctions formerly taken, (i) Cro. Jac. 311. Jenk. 341. as to the time of the commencement ( /) 1 Roll. Rep. 65. of a demise, when stated in the lease (k) Gilb. Eject. 67. ta be " from the date," and when OF AMENDING THE DECLARATION. 201 and, consequently, if the defects were such as to prevent the courts from granting the common rule for judgment against the casual ejector, the plaintiff's lessor was com- pelled to discontinue the action, and resort to a new eject- ment^/) But this practice is inconsistent with the present mode of regulating the remedy ; and the court would, it is presumed, now permit the lessor to amend his declaration before appearance, provided such amendment did no in- justice to the tenant. Indeed, in a recent case, where, by mistake, the name of the tenant in possession was inserted at the commencement of the declaration, instead of that of the casual ejector, (the declaration and, notice to appear being in other respects regular,) the court granted the rule for judgment upon the common affidavit of service, and suggested, that if the tenant did not appear to the action, an application should be made to amend the declaration. (m) It is also said that, even after appearance, the declara- tion can be amended in form only, and not in matter of substance ; but it is now difficult to point out what errors would be deemed substance, and not amendable. Under the strict rules, by which the action was formerly conduct- ed, the demise, the length of the term, the time of the ouster, &c.(n) were all considered as matters of sub- (/) Itoe, d. Slt^henson, v. Doe . Barn, his first declaration, had laid the ons- ISrt. ter before the commencement of hie (nt) Doe, d. Colbey, \. Roe, K B. term, or omitted any other matter of T. T. 1816. .MS. substance, though the second decla- (n) Formerly when a person de- ration were correct, he could not re- < larrtl in < ;ri tmcnt in the Common cover; because the declaration on the Picas, it wus the course of the court, imparlance roll was the material one that after imparlance he should make on which the action was grounded. a second declaration ; and, when this (Merrell v. Smith, Cro. Jac. 311. practice prevailed, if tin- plaintiff, by Jenk. 341.) 26 OF AMENDING THE DECLARATION. stance ;(o) and so unbending were the courts upon these points, that if the term expired, pending the action, by in- junction from the Court of Chancery at the defendant's application, or by the delay of the court, in which the ac- tion was brought, in giving judgment, the lessor was obli- ged to resort to a new ejectment. (/?)[6] (o) Doe, d. Hardman, v. Pilking- 130. Scrape v. Rhodes, Barn. 8. Dri- ten, Burr. 2447, and the cases there rtr v. Scratlon, Burn. 17- Kesworth cited. v. Thomas, And. 208. Tkrustaut v. (p) Anon. Salk. 237. S. C. 6 Mod. Gray, Cos. Temp. Hard. 166. [6] A new demise may bo added on terms, viz. that the defendant hare twenty days, after service of amended declaration, to elect whether he will continue to defend the suit ; and if he do, then to have the usual costs of amendment, and twenty days from the time of election, to plead dc novo, 01 abide by former plea, and if he elect to proceed no further, to have co.sts up to time of making such election. 2 Caines, 260,261. Coleman's Cas. 49. After six years service of the declaration, leave was given to add ntw de- mises on the plaintiff's paying all the costs already incurred, in case the de- fendant should choose to relinquish his defence. Jackson v. Kough, I Caines, 261. The plaintiff will not be permitted to amend) by inserting a demise from a person having- no subsisting title to the premises ; for if any person, who may once have had a title, is to be made lessor, the burthen of deducing a title from him, is unreasonably taken from the plaintiff, and thrown on the tenant. Jackson v. Richmond, 4 Johns. 483. Defendant, previous to entering into consent rule, was allowed to have the demise of a lessor, who had died before the commencement of the suit, struck out of the declaration. Jackson v. Ditz, 1 Johns. Cas. 392. Jackson T. Dan- craft, 3 Johns. 259. The application may also be made after entering into the consent rule. Jackson v. Reynolds, 1 Caines' Rep. 21. Ditzadsv. Butter, Coleman's Cas. 102. Where, on application of the defendant, a demise is ordered to be struck out of the declaration, he must serve a copy of the rule for amendment on the plaintiff*, which shall be deemed an actual amendment as to all subsequent pnx-eeilings on the part of the plaintiff; and the defendant, without a new copy of the declaration being served on him, must enter into the consent rule, and plead in twenty days alter service of the certified copy of the rule for the amendment, unless otherwise ordered by the court, and the rule shall be suffi- cient to authori/.e an actual amendment of the declaration on file, or to file a new one in its stead, whenever it may become necessary. Jackson v. Belk- rtap, 7 Johns. 800. OF AMENDING THE DECLARATION. 203 A more liberal principle has, however, of late years been adopted ; and the demise, term, &c. are now most correct- ly considered as formal only, and may be amended if ne- cessary. Thus, in an ejectment to recover lands, forfeited by the levying of a fine, where the demise was laid ante- rior to the time of the entry to avoid the fine, and the suit was staid, by injunction in the Court of Chancery, for more than five years after the fine was levied, so that the lessor was not in time to make a second entry, or bring a second ejectment, the court permitted him to change the day of the demise, to a day subsequent to the day of the entry : Lord Mansfield observing, that the demise was a mere mat- ter of form, and did not exist.(g') And in a recent case, where the ejectment was brought upon a forfeiture, and the demise was laid on a day anterior to the time when the forfeiture was committed, the court permitted the lessor of the plaintiff to amend (upon payment of the costs of the application) after the record was made up, and the cause set down for trial. (r) But this permission is not to be ex- tended to the injury of the defendant, and therefore the court will not suffer the day of the demise to be altered to a day subsequent to the day of the delivery of the declara- (q) Doe, d. Hardman, v. Pilking- course, and the igsue was made up, ton, Burr. 2447. and the cause set down for trial, at (r) Due, d. Rumford, v Miller, K. the first Sittings in Middlesex, in Hi- fi. H. T. 1814., MS This case seems lary Term, 1814; but being entered to carry the principle of allowing an late in the paper, stood over until the amendment of the demise in an eject- second Sittings. Two days before ment to its utmost limit. The eject- the second Sittings, a rule to show nient was brought upon a covenant to cause why the day of the dcmi.e finish certain buildings in a workman- should not be altered to the 3"ih of like manner before the 29th of Sept. Sept. was obtained by the plaintiff, 1313 The demise was laid on the 26th which rule was mnde absolute irame- day of March, 1813, and the declare- diately before the rising of the court tion delivered on the 29th of Oct. 1813. ou the morning of the second Sittings. The tenant appeared in the regular 204 OP AMENDING THE DECLARATION. tion, for this would be to give the lessor of the plaintiff a right of action which did not subsist at the time of the com- mencement of his suit.(i) The term, also, has been enlarged after its expiration, upon payment of costs, although the issue was made up, the special jury struck, and the cause gone down to trial, before the mistake was discovered ; the Court considering, that it was a plain mistake in the declaration, and might be amended by the writ, which spoke of a term not yet ex- pired.^) An enlargement of the term was also permitted, by Lord Mansfield, in a case where a judgment in eject- ment in Ireland had been affirmed, upon a writ of error, in the King's Bench in England, but, from various delays, the term in the declaration had expired before the plaintiff's lessor could obtain possession. (w) When the old principles of the action prevailed, and the term was considered substance, and not amendable, the plaintiff was not nonsuited if the term expired before the trial, but was permitted to proceed for his damages and costs, though not for the recovery of his land ; for the right to damages for the ouster remained, although the right to possession upon the lease was determined. It is not pro- bable, at the present day, that opportunity will be offered to raise a point of this nature ; but if the lessor of the plain- tiff should act so negligently as to proceed to trial upon an expired term, there seems no reason why the above-men- tioned principle should not be applicable tp the modern practice. (T) (s) Doe, d. Foxlow, v. Jeffries, K. (tt) Vicar* v. Ileydon, Cowp. 841. B. M. T. 1814. MS. (<;) Capel v. Saltonstall, 3 Mod. 249. (0 Roe, d. Le, v. Ellis, Blk. 940. OP THE NOTICE TO APPEAR. 205 In the case of Goodtitlc v. Meymott, the court refused to amend a declaration, in which " the said James," instead of "' the said John," was said to enter hy virtue of the demise ; and ;i ca-e \\as cited, by Wright, J., in which the premises were laid to be in Twickenham, or Isleworth, "or one of them," and the court refused to let the plaintiff amend, by striking out the disjunctive words ; but it seems that amend- ments have since been permitted, both \\\ the parcels and the names.(ttf) And, in a recent case, where after issue joined, a summons was taken out to show cause why the declaration and issue should not be amended, upon pay- ment of costs, by altering the parish, from the parish of G., to " the parish of St. John in G.," the judge permitted the amendment, and refused to allow the party to plead de novo, notwithstanding the case of Goodtitle v. jMeymott.(x) OF THE NOTICE TO APPEAR. (y~) The name of the tenant in possession must be prefixed to the notice ; and, when the possession of the disputed pre- mises is divided amongst several, it is usual to prefix the names of all the tenants, to each separate declaration; al- though it does not seem necessary to prefix more than the name of the individual tenant, upon whom the particular declaration is served. (z) The notice must require the tenant to appear, and apply to the court to be admitted defendant instead of the casual ejector, within a certain time after the declaration is deli- vered ; and llie time when the notice should require the (u>) 2 Sell. Prac. 143. (y) Appendix, No. 13. (i) Doe, d O'Connell, v. Porch. (2) Roe, d. Burtton, v. Roe, 7 T. K Coram Heath, J. Trin. Vac. 1814. 477. MS. OF THE NOTICE TO APPEAR. tenant to appear and make this application, is regulated by Ihe locality of the premises. When the premises are situated in London, or Middle- sex, the notice should be for the tenant to appear " on the first day," (not the essoign day,)(a) or " within the four first days" of the term next after the delivery of the declara- tion ; and this mode of expression should be strictly ob- served ; for, although where the notice was to appear " in the beginning of the term," the court granted a rule for judgment against the casual ejector ;(6) yet, where the*no- tice was. to appear " on the morrow of the Holy Trinity," the judgment against the casual ejector was set aside, upon the principle, that the notice was designed to inform the lay gents, of the time of appearing, and should therefore be ex- pressed in such terms as they might understand. (c) It will, however, be sufficient if the notice be to appear generally of the term ; but the tenant will then have the whole term to appear in. The notice usually specifies the term by name, in which the tenant is to appear, and the declaration should regular- ly be entitled of the term preceding; but, in a very recent case, where a declaration, delivered in Hilary vacation, was entitled of Easter term, and the notice was to appear on the first day of next term, the court granted the rule abso- lute for judgment against the casual ejector in the first in- stance during Easter term, considering that the tenant could not be misled by the wrong title to the declaration, so as to imagine he had until Trinity term to appear, inasmuch as (a) Uoldfasi v. Freeman) Strap. (6) Tredder v. Travit, Barn. 17o' 1049. (e) Sel. N. P. 640. OF THE NOTICE TO APPEAR. 207 the declaration was delivered, and the notice dated on a day antecedent to the essoign day of Easter term.(rf) When the premises are situated in any other county than London, or Middlesex, the notice should regularly require the tenant to appear generally in the term next ensuing the delivery of the declaration ; but it will be sufficient when the proceedings are in the Common Pleas, if it require him to appear in the issuable term, .next ensuing such delivery, althongh a nonissuable term intervene. Thus, when a de- claration is entitled of Trinity term, and delivered during the long vacation, the notice may require the tenant to ap- pear in Easter term.(e) The declaration must be delivered before the essoign day of the term, in which the notice is given to appear. (f) The notice should regularly be subscribed with the name of the casual ejector, and formerly proceedings have been set aside for an irregular signature ; but it is now sufficient, though certainly not correct ; if the notice be subscribed with the name of the plaintiff in the action. (g)[7] One case only is extant, in which an amendment has (rf) jftion. K. B E. T. 1817. MS. (g) Peaceable v. Troublesome, Barn (t) Doe, d. Clarke, v. Hoe, 4 Taunt. 172. Hmleicood, d. Price, v. Thatch- 738. er, 3 T. R. 361. (/) Doe d. Bird, v. Roe, Barns. 172. [7] Defendants moved to set aside the rule to appear, for a misdirection in the notice to the tenants in possession, and in their notice of motion, referred to the declarations and notices served. The court ruled, that they must pro- duce the declarations and notices served upon them, or the affidavit of due- service would be sufficient. Jackson v. Stiles, 1 Games' Rep. 501. 208 OP THE NOTICE TO APPEAK. been made, by rule of court, in the notice subscribed to the declaration ; although it cannot be doubted that any amend- ments would now be allowed, which the justice of the case might require. In the case above alluded to, the lands were situated in Devonshire, and the notice was for the te- nant to appear in Michaelmas term, when, according to the practice in country causes at that time, it should have been to appear in an issuable term, and the affidavit stated, that if the lessor were not permitted to amend, he would be barred, by the statute of limitations, from bringing a new ejectment: the court permitted the lessor to amend upon payment of costs.(A) C/t) Doe, d. Baas, v. Roe, 7 T. R. such change of practice should not 469. It is singular, that a practice have been noticed in any of the re- should have obtained of giving noti- ported cases. See 1 Caines' Rep. ces to tenants to appear in nonissua- 601. and Ib. 249. ble, as well as issuable terms, and that JO!) CHAPTER VIII. OF THE SERVICE OF THE DECLARATION, AND PROCEEDINGS TO JUDGMENT AGAINST THE CASUAL EJECTOR, WHEN NO APPEARANCE. THE declaration in ejectment being a kind of process to bring the party interested into court, its delivery to the tenant resembles the service of a writ, rather than the de- livery of a declaration ;[8] and, as it is the only warning which the tenant in possession receives of the proceedings of the claimant, the courts are careful that a proper de- livery be made, and that the nature and contents of the declaration be explained at the time, to the party to whom it is delivered. This delivery and explanation are gene- rally termed the service of the declaration; and our next inquiry will be directed to the different modes by which this service may be made. The service, to be strictly regular, should be made per- sonally upon the party in possession of the premises, at the time of the service ; or, when the possession is divided [8] Serving the declaration is the commencement of the action, as much as the service of a capias ad rr.spondendum iu a personal action. Baron 3 Johns. 482. 27 210 OF THE SERVICE amongst several, upon each party separately.(t) When the ejectment is brought by a landlord against his tenant, and the tenant has underlet the premises, the same rule prevails, and the service should be upon the under-tenant. A service upon the original tenant might, perhaps, be suf- ficient ; but a doubt exists upon the point, and it is, there- fore, more prudent to serve the under-tenant. If, how- ever, the service is upon the original tenant, and he ap- pears and pleads, he cannot afterwards release himself from the action, upon the ground that his under-tenants, and not himself, are in possession ;(J) and, from the language of the Court, when giving judgment upon this point, it seems an inference may be drawn, that a service on the origi- nal tenant will also be sufficient to warrant a judgment against the casual ejector. [9] When personal service can be effected, it is immaterial whether it be upon the premises demised, or elsewhere. (k) It frequent!}', however, happens, from the wilful or ac- cidental absence of the tenant, or some other circumstance, that the claimant is unable to serve him personally : the declaration is then delivered to one of the family, nailed to the door of the house, or in some other manner left upon the demised premises ; and, when any of these irregularities (t) B N. P. PS. (k) Savage v. Dent, Stran. 1064 (j) Rot v. H'iggs, 2 N. P. 330. Taylor v. Je.fls, 11 Mod. 302. [!>] A declaration in ejectment was served on the tenant, who soon after quitted the possession, and was succeeded by another tenant, when a person, actinsr as the plaintiff's agent, served a second declaration on the new tenant. Tlie nlaintiff'c attorney, being ignorant of the second service, proceeded un- der the first declaration, and took judgment against the casual ejector. The Court held, that the second declaration was a waiver of the first, and set aside the proceedings with costs. Kemblc v. Fitch, 1 Johns. Gas. 414. OF THE DECLARATION. 211 happen, the service will be considered good, or otherwise, according to the particular circumstances of the case.[l] The power exercised by the courts in this respect is alto- gether discretionary ; and it will be necessary to enter ra- ther largely into a detail of the cases, in order to give a clear idea of the principles upon which they have been de- cided. When the declaration is explained to, and left with, the wife upon the premises, or at the husband's house e:l-c- where, it will be good service ;(/) and, as the husband is answerable for the default of the wife, no evidence 5eems necessary of a subsequent delivery of the declaration from her to him. It seems, also, that service on the wife will be good any where ; provided it be sworn, in the affidav it of service, that she and her husband were living together as man and wife when the service was made.(m) But the mere acknowledgment of the wife, that she has received a declaration in ejectment, and given it to her husband, if it be not personally served upon the wife, will not be good service ;(n) although, in a case in the Common Pleas, where the service was upon the daughter before the essoign day, and on a subsequent day, the wife acknowledged that she had received the declaration, and showed it to the attor- ney, who then read it over to her, and explained it, upon which (0 f>oe, d. Baddam, v. Roe, 2 B. & (m) Jtnny, d. Pretlon, v. Culls, 1 P. 65 Goodriglil, d. Jones, v. Thrust- N. R. 309. out, W. Blk. 800. Doe,d.Moilatul,Y. (n) Goodlitle, d. Read, v. Badl'Ule, lus, 6 T. R. TM. 1 B. b P. 384. [1] Where a totally informal declaration, with the names of the town mid county Mank, was served on the tenants, it was held to be sufficient notice to put tlirin upon inquiry, and a subsequent rule to amend affixed in the < K rk'< office, was adjudged to be good service. Jackson v. Stilts, 1 Cnincs' Rep. 240. and especially when a statute of limitation? was about to attu- )>. 212 OF THE SERVICE the wife said, that the paper should be sent to her husband, the service was held sufficient. (o) The court were at first much inclined to refuse the rule, in this latter case ; because it did not clearly appear from the affidavit, that the declaration came to the hands of the wife before the essoign day of the term, but ultimately made the rule absolute on the authority of the case of Goodtitle* d. Massa, v. Thrustout.(p) In the court of King's Bench, such an omission would be a fatal objection to the service, (q) When two tenants are in possession of the same pre- mises, service upon one of them will be good service upon boih ;() and service upon a person appointed by the Court of Chancery to manage an estate for an infant, although the estate con- sisted of a large wood, of which no tenant was in possession, has also been held insufficient, as being nothing more than a service on a gentleman's bailiff.(o;) In the preceding cases no wilful opposition appears on the part of the tenant, to the service of the declaration ; and such of the services already mentioned as are consider- ed good, are called regular services ; but when the tenant absconds, or does any act which shows a resolution not to receive the declaration, the Court, upon affidavit of facts, will sometimes allow that to be good service, which other- wise would be deemed irregular. Thus, a tender of the declaration, and reading the no- tice aloud, although the tenant refuse to receive it, or run away and shut the doors, or threaten with a gun to shoot ihe person serving it, if he should come near ; throwing the declaration in at the window, sticking it against the door. (w) Tapper, d. Mercer, v. Doe, (w) Man. 12 Mod. 313. Barn. 181. (x) Goodtiilc, d. Koberit, v. Bad- (V) Run. Eject. 13* HtU, 1 B. &. P. 385. 214 OF THE SERVICE or leaving it at the house, upon the servants refusing to call their master, and the like, have, upon application to the court, been holden sufficient. So, also, a tender of the de- claration in the shop, and reading the notice aloud there to the wife, when the tenant refused to receive the declara- tion ; delivering it to the niece of the tenant, she being the manager of the house, and the tenant having absconded; nailing the declaration on the barn door of the premises, in which barn the tenant had occasionally slept, there being no dwelling-house on the premises, and the tenant not to be found at his last place of abode, have respectively been considered good and sufficient services.(t/) In a case where the tenant in possession was personated, at the time of the service, by another, who accepted the service in her name, the Court granted a rule to show cause, why this should not be deemed good service upon the te- nant herself, and why judgment should not be signed against the casual ejector, in default of her appearing : and that, leaving a copy of this rule at her house, with some person there, or, if no one was to be met with, affixing it to the door, should be good service of such rule. And this rule was afterwards made absolute, upon an affidavit, " that the tenant was either not at home, or (if at home) was denied ; and, that her servant-maid was at home, but could not be served ; whereupon a copy of the rule was affixed to the door of the house ;" and moreover, " that at a subsequent (y) Douglass, v. , Stran. 575. Barn. 188. Fenn, d. Hildyard, v. Smalley v. Aea/e, Barn. 173. Hair Dean, Barn. 192. Sprighlly, d. Coi- tal v. Wedgwood, Barn. 174. Due, lint, v. Duncli, Burr. 1116. Doe, d. d. Dry, v. Roe, Barn. 178. Fanner, JVeo/e, v. Roe, 2 Wils. 263. Fenn, d. U. Miles, v. Tlnustout, Barn. 180. Buckle, v. Roe, 1 N. R. 293. Doe,d. Bagshnw, d. Mdon, v. Toogood, Hervey, v. Roe, 3 Price, 112. Barn. 185. Short, d. lincf, v. King, OF THE DECLARATION. 215 day," (upon a doubt whether what had been already done was sufficient,) " the maid being at home, and opening the window, but refusing to open the door, and denying that her mistress was at home, another copy was affixed on the door, and the maid was told the effect of it ; and another copy was thrown in at the window, and the original rule was shown to the maid.'\r) In a case, where it appeared in the affidavit of service, that one of the tenants was a lunatic, and that one C. lived with her, transacted her business, and had the sole conduct thereof, and of her person ; but would not permit the^ de- ponent to have access to her, in order to serve her with the declaration, whereupon he delivered it to the said C. ; a rule was granted, that the lunatic and C. should both show cause, why such service should not be sufficient; and the service on C. was allowed to be good. (a) But where, on cause being shown against a rule for good service of a declaration in ejectment, it appeared, that the declaration was tendered on the 18th, but that the defend- ant's servant said, he had orders not to receive any such thing ; whereupon it was not served on that day, but wa left at the house upon the day following ; the Court, (not- withstanding that the defendant knew of the intention to serve him,) said, " You should have left the declaration on the 18th." We sometimes by rule make that service, under particular circumstances, good, which otherwise would have been imperfect; but here there was no service on the pro- per day, and we cannot antedate the service ; and the day was dischargcd.(A) () Fenn, d. Tyrref, v. 7>cn, Burr. (a) /Joe.d Wright, v. /.'or, Barn. 199 U81. (6) Wood. L. k T. 466. 216 OF THE AFFIDAVIT OF SERVICE. Where the premises consisted of a mansion, and four small houses in a yard, surrounded by a wall, through which was a door to them, forming the only means of access, in one of which small houses resided A., who was permitted to live there merely to take care of them and of the man- sion-house, and the rest of the messuages were vacant : upon motion, that service on A. might be deemed good service under those circumstances, the Court refused the motion, and recommended the plaintiff to affix a declara- tion on the empty houses, and then to move that it be deem- ed good service.(c) When the service is good for part, and bad for part, the lessor may recover those premises for which the service is good ; but if he proceed for all, and obtain possession by means of a judgment against the casual ejector, the Court will compel him to make restitution of that part, for which the service was bad.(d) Or THE AFFIDAVIT OF SERVICE. (e) When the service of the declaration is made in the regu- lar way, the next step to be taken, in order to obtain judg- ment against the casual ejector, is to make an affidavit of luch service ; which affidavit is annexed to the declaration, and is the ground upon which the rule for judgment is to be moved for. But, when the circumstances of the case are special, it is usual to move, in the first instance, for a rule to show cause why the service mentioned in the affidavit, should not be deemed good service ; and this motion may be made, either before, or after the service of the declara- (c) Ibid. 464. (e) Appendix, No. 16, 17, 18. (d) Ibid. 463. Appendix, No. 41. OF THE AFFIDAVIT OF SERVICE. 217 lion; although, if the lessor be aware of the difficult ic- In will have to encounter, it is better to make an affidavit of the circumstances, which are likely to happen, and move, prior to the service, for a rule to show cause, why a service of such a nature should not be sufficient. (/) The affidavit may be sworn before a judge, or a com- missioner, and should regularly be made by the person who served the declaration ; although the Court have been satisfied with the affidavit of a person, who saw the decla- ration served upon, and heard it explained to, the tenant in possession. (g) When no special circumstances take the case out of the general rule, the affidavit must state that the declaration was delivered to the tenant in possession, or his wife, &c. and that the notice, thereto annexed, was read and ex- plained at the time of the delivery, or generally that the tenant was informed of the intent and meaning of the ser- vice, (h) If the affidavit only state that the notice was read, the service will not be sufficient,(z) unless the tenant after- wards acknowledge that he understands the meaning and intention of the service ; but with such acknowledgment the service will be good, without any statement of the read- ing or explanation of the notice or service. (y) If the service was upon the wife, the affidavit must also state that the service was on the premises, or at the hua- (/) Methold v. .Voright, W. Blk. (A) Appendix, No. 16, 17, 18. 290. Gulliver v Wagttaff, \V. Blk. (0 Doe, d. Whitjidd, v. Rot, K. B 317. T. T. 1815. MS. (g) Gooillille, d. Wanklen, v. Bad- (j) Doe, A. Quint in v. Roe, K. B. ti'le, 2 B. 4tP. 120. T. T. 1810. MS. 28 218 OF THE AFFIDAVIT OF SERVICE. band's house,() or that the husband and wife were living together ;(/) and, if the service were on the child or servant of the tenant, " that the service was afterwards acknow- ledged by the tenant," and also, provided the proceedings are in the King's Bench, that the tenant received the de- claration, or acknowledged that he knew of the service thereof,(m) before the essoign day of the term.(n) The affidavit must be positive, that the person, to whom the notice was addressed, was the tenant in possession, or that he acknowledged himself to be so ; for no one should be evicted from possession without a positive affidavit, on which, if it be false, the person who made it may be sub- jected to the penalties of perjury. (o) An affidavit, there- fore, that the deponent did serve A. B., tenant in posses- sion, or his wife, was held not to be sufficiently certain as to eithcr.(^) So also an affidavit, that the deponent did serve the wives of Jl. and B., who, or one of them, are te- nants in possession, was held insufficient.^) If several persons be in possession of the disputed pre- mises, and separate declarations in ejectment be served upon them, one affidavit of the service upon all, annexed to the copy of one declaration, is sufficient, provided one action of ejectment only be intended ;(r) but if the eject- ments are made several, so as to have separate judgments, writs of possession, &c. then separate affidavits, of the se- (A-) Doe, d. Morland, v. Bayliss,6 (o) Anon. 1 Barn. 330. Goodtitlt T. R. 7t>5 v. Doris, I Barn. 429. (/) Jenny, d. Preston, v. Cults, IN. (p) Birkbeck v. Hughes, Barn. 173. R.308. Appendix, No. 18. (y) Harding, d. Baker, v. Green- (m) Doe, d. Wilson, v. Roe, K. B. smith, Barn. 174. T. T. 1815 MS. (r) Appendix, No. 17. (n) Roe, d. Hambrook, \. Dot, 14 East, 441. OF JUDGMENT AGAINST THE CASUAL EJECTOR. 219 veral services upon the different tenants, must be annexed to copies of the several declarations respectively, (s) When one action only is intended, the names of all the the tenants are generally prefixed to each notice ; but in a case where, in the several declarations served, the name of the individual tenant alone, to whom any particular decla- ration was delivered, was prefixed to the notice to such de- claration, instead of the names of all the tenants, so that the person making the affidavit of service could not swear that a copy of any one declaration and notice had been served on all the tenants, the Court, notwithstanding, thought one rule sufficient, on motion for judgment against the casual ejector.(f - It often happens that an affidavit of the service of the de- claration is defective ; as, for example, from not stating the particular mode in which the party was served :() in such case, a supplemental affidavit should be made, and taken to the clerk of the rules, who will attend a judge thereon, and obtain an order to draw up the rule for judgment. OF JUDGMENT AGAINST THE CASUAL EJECTOR.(TJ) The motion for judgment against the casual ejector, in ordinary cases, is of course ; that is, such only as requires the signature of a counsel, or sergeant ; and after it is signed, it must be taken by the attorney to the clerk of the rules in the King's Bench, or to the secondary of the Com- mon Pleas ; as these motions will not be received in court (4) 2 Sell. Prac. 100. (u) Jenny, d. Preston, v. Culls, 1 (0 Roe, d. Burlton, v. Roe, 7 T. R. N. R. 3U8. 477. (v) Ante, 216. 220 OF THE TIME ALLOWED unless there is something special in the service of the decla- ration : but when any special circumstances exist, the rule in i-i In- moved for as in other cases. The rule granted upon this motion is, that the judgment be entered for the plaintiff against the casual ejector by default, unless the tenant in possession appear, and plead to issue, within a certain time mentioned in the rule.(w)[2] The time for moving Cor judgment, as also the time for the defendant's appearance, is governed by the locality of the premises, and the time mentioned in the notice, when the defendant is to appear. In the King's Bench, if the premises are situated in Lon- don, or Middlesex, and the notice requires the tenant to appear on the first day, or within the first four days of the next term, the motion for judgment against the casual ejector should regularly be made in the beginning of that term ; and then the tenant must appear within four days, inclusive, after the motion, or the plaintiff will be entitled to judgment. If, however, the motion be deferred until the latter end of the term, the Court will order the tenant to appear in two or three days, and sometimes immediately, that the plaintiff may proceed to trial at the sittings after term ; but, if the motion be not made before the last four days of the term, the tenant need not appear, until two days before the essoign day of the subsequent term. (w) Appendix, No. 20, 21, 22. [2] A default for the tenant's not appearing, must be entered before judg- ment by default can be entered against the casual ejector. Jackson v. Smith, 1 Johns. Cas. 106. A default, for want of a plea, must be entered against the casual ejector, and not against the tenant. Jackson v. Vischcr. 2 Johns. Cas. 106. FOR APPEARANCE. 221 In the Common Pleas, if the premises are situated in London, or Middlesex, and the tenant has notice to appear in the brimming of the term, judgment against the casual ejector must be moved for, within one week next after the first day of every Michaelmas and Easter term, and within four days next after the first day of every Hilary and Trinity term,(x) except, it seems, when the tenant has absconded, and the proceedings are upon the statute of 4 Geo. II., and then the motion may be made at any time during the term ; because the rule of 32 Car. II., relates only to declarations in ejectment, served upon tenants in posses- sion.^) When the premises are situated in London or Middle- sex, and the notice is to appear generally of the term, or being situated elsewhere, the notice is to appear in an issu- able term, judgment must be moved for, both in the King's Bench and Common pleas, during the term in which the notice is given to appear. When the cause of action arises elsewhere than in Lon- don or Middlesex, and the declaration is delivered, with a notice to appear in Michaelmas or Easter term, if the eject- ment be brought in the Court of Common Pleas, the rule for judgment may be moved for at any time during the next issuable term ; but if the proceedings are in the Court of King's Bench, such motion must be made during the same term in which the tenant has notice to appear. If, how- ever, the lessor of the plaintiff neglect to make this motion during that term, the Court will grant him a rule to show (s) Reg. Trio. 82 Car. II. C. B. rcct, it seems to extend to similar (y) A'etfo/tre, d. Parsons, v. Poti- cases when thn prof-fling's are at /tre, Barn. 172 If the principle upon common law. which tliis exception i taken he ror- OF THE TIME ALLOWED, &C. cause at any time during the next is suable term ;(?) but if he delay to move for such rule, until within the four last days of such issuable term, he cannot make it absolute un- til the succeeding term. (a) Notwithstanding this difference in the practice of the two courts, as to the time of moving for judgment against the casual ejector, the time for the appearance of the tenant is in both courts the same ; that is to say, he has in all cases, until four days after the next issuable term, to appear and plead : and if the lands be situated in Cumberland, or in any other county, where the assizes are held but once a year, whatever may be the term in which the notice is given, the tenant is not compellable to appear until four days next after the term preceding the assizes. By a rule of the Court of King's Bench, which has been adopted by the Court of Common Pleas,(6) the clerk of the rules now keeps a book, in which are entered all the rules delivered out in ejectments, instead of that formerly kept, which contained a list of the ejectments moved. The entry must specify the number of the entry, the county in which the premises lie, the name of the nominal plaintiff, the first lessor of the plaintiff, with the words " and others," if more than one, and also the name of the Casual ejector. And unless the rule for judgment be drawn up, and taken away from the office of the clerk of the rules within two days after the end of the term, in which the ejectment shall be moved, no rule is to be drawn up or entered, nor any proceeding had in such ejectment. (2) Doe, d. Pearson, v. Rot, K. B. v. Badlitle, K. B. H. T. 1814. MS. H. T. 1814. MS. (6) M. T. 31 Gco. III. 4 T. R. 1 . () GoodKlle, d. Duke of Richmond, T. 48 Geo. III. 1 Taunt. 317. THE CASUAL EJECTOR. 223 When the proceedings are in the King's Bench by bill, bail must he tiled for the casual ejector before the judgment can be signed against him, or the Court will set the judg- ment aside ;(c) but the bail need not be filed until after the rule for judgment is drawn up.(/J) The reason for this form seems to be, that there is no cause in court against the casual ejector, before bail is filed ; and, therefore, nothing upon which to ground the judgment.(e) But where no bail was filed in ejectment, and a writ of error was brought, and it appeared by the at- torney's books, that the attorney had his fee to file bail, but was since dead, the Court ordered bail to be filed nunc pro tune, that no error might appear upon the record ; be- cause, as it was on the part of the defendant to file bail, therefore he should not be allowed to take advantage of his own error; and although the plaintiff proceeded with- out any bail filed by the defendant, yet as the defendant's attorney had had his fee to file such bail, and as there was no proper remedy against the defendant, because he had given the fee, nor against the attorney, because he was dead, it therefore became the justice of the court to set it right, that the plaintiff might have no mischief.(/) In the time of Charles II. the Court published a rule,(g) that no person should be permitted to take out judgment (c) Boiukiery. Friend, 2 Sliow. 249. scarcely consistent with the modem (rf) Gilb. Eject. 21. principles of the remedy. Gilb. Eject, (e) It has been said, that if the ten- 22. ant appear, and the cause go on to (/) Gilb. Eject. 22. This casr trial, the Court will not compel him (if seems scarcely applicable to the mo- thr proceedings are by bill) to confess dern practice. (Vide, post, Writ of lease, entry, and ouster, unless com- Error ) raon bail has been filed for the casual (g) Reg. Trin. 14 Car. II. and Mich ejector ; but this doctrine teem* 33 Car. II. Z4t OF FILING COMMON BAIL. against the casual ejector, without a certificate that a latitat had been taken out, and bail filed ; because the Court had no authority to proceed by bill, unless the defendant ap- peared to be a prisoner of the court. But this certificate is not now required, nor is a latitat necessary ; for when the casual ejector finds common bail, he admits himself to be a prisoner of the court, and whether he came into court regularly by latitat, or not, yet the judgment is not coram non judice.(h) When the time appointed for the appearance of the land- lord, or tenant, has expired, it is not necessary to give a rule to plead, but judgment may at once be signed against the casual ejector, provided the party interested has ne- glected to appear; which fact is ascertained by searching the ejectment books of the judges in the King's Bench and the prothonotary's plea book in the Common Pleas. A rule for judgment must then be drawn up with the clerk of the rules in the former, and the secondary in the latter court ; and an incipitur of the declaration made on a proper stamp, and also on a roll of that term. These must be then taken to the clerk of the judgments in the King's Bench, and to the prothonotary in the Common Pleas, (together, when the proceedings are in the Common Pleas, with a warrant of attorney for the defendant,) and judgment will then be signed accordingly.(i) The judgment, however, must not be signed, until the afternoon of the day next after that on which the rule ex- pires ; and if Sunday happen to be the last day, not until the afternoon of Tuesday. (j) (ft) Gilb. Eject. 22. (j) Hyde, d. Culliford, v. Thnul^ (i) App. No. 23. out, Say. 308. THE CASUAL EJECTOR. 225 After the judgment is signed, the writ of possession must be made out, (together with the praecipe for it, if in the King's Bench,) and delivered to the sheriff, who will exe- cute the same by giving possession of the premises to the plaintiff's lessor. Judgments against the casual ejector irregularly obtain* ed, will, as a matter of course, be set aside ;[3] and as the situations of claimant and defendant in ejectment, are ma- terially different, the courts are liberal in their rules for setting aside judgments against the casual ejector, although regularly signed ; and will grant them even after execution executed, upon affidavit of merits, or other circumstances, which at their discretion they may deem sufficient.^) The regular mode of setting aside such judgments is by rule of court, for the party having obtained the judgment to give up the possession ; but if the circumstances of the case re- quire it, the courts will order a writ of restitution to be is- sued.(0 (k) Doe, d. Troughlon, v. Roe, ny, v. Roe, 5 Taunt. 205. Sed vide Burr. 195MJ. Dohbs v. Passer, Stran. Doe, d. Ledger, v. Roe, 3 Taunt. 606. 975. Mason, d. Kciidale, v. Hodgson, (I) Goodright, d. Russell, v. JVb- Bara. 250. Doe, d. Grocer's Compa- right, Barn. 178. Dacies v. Doe, W, Blk. 892. Appendix, No. 41. [3] Where the tenant swears to merits, and no trial has been lost, a regu- lar default will be set aside, and a writ of restitution ordered on payment of costs. Jackson v. Stiles, 4 Johns. 489. 1 Cai tics' Rep. 603. The Court will go further to set asid a default in ejectment, than in any other action. Ibid ; and where tenant swore, that he supposed the Supreme Court was held at the Circuit, and where a trial had been lost, default was cet aside on payment of costs. Jmckton v. Stilu, 3 Caines' Rep. 139. 29 CHAPTER IX. OF THE APPEARANCE PLEA AND ISStJK IN the preceding chapter, the suit has been conducted to its termination, when no appearance is entered in pur- suance of the notice subscribed to the declaration ; we must now consider, who may appear and defend the action, and in what manner such appearance should be made. Notwithstanding the power possessed by the courts of framing rules for the improvement of this remedy, the in- terference of the legislature has, at times, been called for, and it has been most beneficially exerted in regulating the appearances to the action. The tenant in possession, be- ing the person prima facie interested, is, of course, the party on whom the declaration is always served ; although it fre- quently happens in practice, that the lands belong to some third person out of possession, to whom such service can af- ford no information of the proceedings against him, and who, by the common law, has no remedy against his tenant, if he omit to give him notice of them. By the rules and practice of the courts, also, (for it would scarcely be correct to say by the common law,) the landlord, it seems, was not permitted to defend, even when he did receive notice, un- less the tenant consented to become a co-defendant with WHO MAT APPEAR. 227 him ;(m) and no means existed by which the tenant could be compelled to appear, and be made such co-defendant.(n) This system occasioned great inconvenience to landlords. The tenants, from negligence or fraud, frequently omitted to appear themselves, or to give to the landlords the neces- sary notice : and although judgments against the casual ejec- tor have been set aside, upon affidavits of circumstances of this nature, the remedy was still very incomplete. (o) To remedy these imperfections, by the statute 1 1 Geo. II. c. 19. s. 13., it is enacted, " That it shall and may be law- " ful for the court in which an ejectment is brought, to suffer " the landlord or landlords to make him, her, or themselves " defendant or defendants, by joining with the tenant or " tenants, to whom such declaration in ejectment shall be " delivered, in case he or they shall appear ; but in case " such tenant or tenants shall refuse, or neglect to appear, "judgment shall be signed against the casual ejector for " want of such appearance ; but if the landlord or land- " lords, of any part of the lands, tenements, or.heredita- " ments, for which such ejectment was brought, shall de- " sire to appear by himself or themselves, and consent to " enter into the like rule that, by the course of the court, " the tenant in possession, in case he or she had appeared, " ought to have done ; then the court, where such eject- " ment shall be brought, shall and may permit such land- " lord or landlords so to do, and order a stay of execution, " upon such judgment against the casual ejector, until they " shall make further order therein." By the 12th section of the same statute it is also enacted, (m) Lill. Pr. Reg. 674. (o) Jnon. 12 Mod. 21 1 . ') Goodrightv. Hart, Straw. 830. 228 OF THK APPEARANCE. " That every tenant, to whom any declaration in ejectment " shall be delivered, shall forthwith give notice thereof to hi* "landlord, bailiff, or receiver, under the penalty of forfeit- " ing the value of three years improved, or rack-rent, of " the premises eo demised or holden, in the possession of " such tenant, to the person of whom he holds, to be re- " covered by action of debt, to be brought in any of His " Majesty's courts of record at Westminster, or in the " counties palatine of Chester, Lancaster, or Durham, re- " spectively, or in the courts of grand sessions in Wales." With respect to this latter section, it may be proper at once to observe, that it has been interpreted to extend only to those cases in which the ejectments are inconsistent with the landlord's title. Thus, a tenant of a mortgagor, who does not give him notice of an ejectment, brought by the mortgagee upon the forfeiture of the mortgage, is not within the penalties of the clause. (p) The first enactment in the thirteenth section of this statute, namely, that landlords may be made defendants by joining with the tenants in possession, is decidedly only a legislative sanction of the previous uniform practice of the courts ; and it is also said, by Wtimot, J., in the case of Fairclaim, d. Fowler, v. Shamtitle,(q) that landlords were permitted, before this statute, to defend ejectments with- out joining the tenants in possession. There is, indeed, but one case extant in which the contrary doctrine is main- tained ;(r) and the loose notes to be found of cases previous to that decision, certainly favour Mr. J. Wilmofs opi- nion.(s) It is, therefore, probable, particularly since the (p) Buckley v. Buckley, 1 T. R. (r) Goodriglit v. Hart, Strau. 830. 647. (s) Lamb v. Archer, Comb. 308. (?) Burr. 1801 . Anon. 12 Mod. 21 1 . WHO MAY APPEAR. 229 wase above alluded to happened but a few years before the statute was passed, that the practice was not clearly settled until the time of that decision, and that the statute was enacted in consequence of the inconvenience resulting therefrom, (t) By the words of the statute, the courts can admit land- fords only to defend, instead of tenants in possession ; and difficulties have frequently arisen, as to the meaning of the word landlord in the act, and as to what interest in the dis- puted premises, will be sufficient to entitle a person claim- ing title to appear and defend the action. In the first reported case upon the construction of this section, it was holden, that it was not every person claim- ing title, who could be admitted to defend as landlord, but only he, who had been in some degree in possession, as re- ceiving rent, &c. ; and, upon this principle, the court would not allow a devisee, claiming under one will of the testator, to defend as landlord in an ejectment, brought by a devisee claiming under another will of the same testa- tor.(u) But this doctrine was afterwards reprobated by Lord Mansfield, in a case where the principles of the sec- tion were fully considered, and the decisions, anterior to the act, investigated and explained. " There are, (says Lord Mansfield,) two matters to be considered : First, whether the term ' landlord? ought not, as to this purpose, to extend to every person whose title is connected to, and consistent with, the possession of the oc- cupier, and devested or disturbed by any claim adverse to (t) Fairclaim, d. Fowlfr, v $h*ni- (v) Pnr, cl. T.rnk, v. Doc, Bam. 193. title, Btirr. 1290. 1998 230 OF THE APPEARANCE. tuch possession, as in the case of remainders or reversions, expectant upon particular estates ; secondly, whether it does not extend, as between two persons claiming to be. landlords de jure, in right of representation to a landlord de facto, so as to prevent cither from recovering by collu- sion with the occupier, without a fair trial with the other. Where a person claims in opposition to the title of the tenant in possession, (r) he can in no light be considered as landlord ; and it would be unjust to the tenant, to make him a co-defendant : their defences might clash. Whereas, when there is a privity between them, their defence must be upon the same bottom^] and letting in the person be- hind, can only operate to prevent treachery and collusion. It is no answer, " that any person affected by the judgment may bring a new ejectment ;" because there is a great difference between being plaintiff, or defendant, in eject- ment.^) (v) Driver, d. Oxendon, v. Law- a landlord under the statute 11 Geo. rence, W. Blk. 1259. II. c. 19. s. 13. (w) Fairclaim, d. Fowler, v. Sham- Lord Kenyan, C. J., " If the person title, Burr. 1290. 1294. The princi- requiriug to be made a defendant un- ples laid down by Lord Kenyan, C. der the act had stood in the situation J., in the case of Lovtlock, d. Norris, of immediate heir to the person last v. Dancaster, (3 T. R. 783.) seem to seised, or had been in the relation of support the doctrine of Lord Mans- remainderman, under the same title field, above mentioned ; although, as the original landlord, I am of opi- from the omission, in the report of nion that he might have been permit- the case, of the facts upon which Lord ted to defend as a landlord, by virtue Kenyan's judgment was founded, the of the directions of the statute; but point cannot be clearly ascertained. here the very question in dispute be- lt was moved, that the cestui que tween the adverse party and himself trust might be made defendant in eject- is, whether he is entitled to be land- ment instead of the tenant, and ob- lord or not ; and, therefore, we are not jected to on the opposite side, be- authorized to extend the provision of Cause he had never been in posses- the statute to such a case as this." sion, and could not be considered as The rule was discharged. [4] A party will not be admitted t defend, unless be swear there is a pri : WHO MAY APPEAR. 281 The judgment in this case was not, indeed, ultimately given upon these points ; but the principle upon which the statute is to be interpreted, seems to have been established by it ; and we may now consider, that the word landlord is extended to all persons claiming title, consistent with the possession of the occupier ; and that it is not necessary they should previously have exercised any act of ownership over the lands. Thus, the courts have permitted an heir, who had never been in possession, to defend an ejectment, where the father, under whom he claimed, had died just before, having previously obtained the same rule.(x) So a devisee in trust, not having been in possession, was permitted to defend an ejectment,(#) and a mortgagee has been made defendant with the mortgagor.(z) If a party should be admitted to defend as landlord, whose (x) Doe, A. JJeblethwaite, v. Roe, report of this case, whether the mort- oited 3 T. R. 783. gagee had previously received any (y) Lovelock, d. Norris, v. Danccuter, rent ; but, from the principles above, 4 T. R. 122. laid down, the circumstances seem (*) Doe, d. TUynrd, v. Cooper, 8 T. immaterial. (Serf vide B. N. P. 95.) R. 645. It does not appear, from the vity between him and the tenant in possession. Jackson v. M'Evoy, 1 Caiues Rep. 151. Jackson v. Stilrs, 10 Johns. 67 A person may be admitted to defend as landlord, between whom and the defendant a privity of interest exists, although he does not receive rents, which is not the true test. Coleman's Cas. Prac. 56. The assignee of a mortgage may lie let in to defend as landlord, but he must stipulate to give no evidence of any title except that acquired under the mortgage. Jackson v. Babcock, 17 Johns. 112 Where a person had been disi barged under the insolvent act, it was held that he had no further right in the premises, and could not be let in to defend as landlord. Jackton v . stilts, 1O Johns 67, '>!'. Where landlord is admitted to defend, plaintiff can only recover such pre- mises as he proves to be Lu possession of the ttuiuit. Fenn T. Hood, 1 Bos. & Pul. 673. vr 232 OF THE APPEARANCE. title is inconsistent with the possession of the tenant, the lessor of the plaintiff may apply to the court, or to a judge at chambers, and have the rule discharged with costs.(a) If, however, he neglect to do so, and the party continue upon the record as defendant, such pajrty will not be al- lowed to set up such inconsistent title as a defence at the trial.(6) The Court of King's Bench, in a case which has already been frequently cited, exercised a singular species of equi- table jurisdiction, with respect to the admission of a person claiming title to defend an ejectment. The action was brought by one, claiming as the heir of a copyholder ; and the lord of the manor, claiming by escheat pro defectu h<&- redis, obtained a rule to show cause why he should not be admitted defendant. After considerable argument as to the legality of the lord's claim to defend, it was agreed by both parties, at the recommendation of the court, that the then ejectment should be discontinued, and a fresh one brought in the lord's name, in which the heir should be admitted defendant ; and Lord Mansfield, C. J., declared afterwards, that if the heir had refused to consent to this arrangement, they would have admitted the lord to defend, and that if the lord had refused his consent, they would have discharg- ed the rule.(c) A wife has been permitted to defend an ejectment, where the title of the plaintiff's lessor arose from a pretended in- termarriage with her, which marriage she disputed.(J) (a) Doe, d. Hnrwood, v. Lippen- (c) Fairclaim, d. Fowler, v. Shani- oott.Coram Wood, B. Trin. Vac. title, Burr. 1290. 1817. MS. (d) Fenwick r. Gravenor, 7 Mod- (6) Doe, d. Knight, Y. Lady Smytke, 71. 4M.&S.347. OF THE CONSENT RULE. 233 But a parson claiming a right to enter, and perform divine service, has been held not to have a sufiicient title to be ad- mitted defendant ;(e) and, where the application for admis- sion appeared only a device to put off the trial, the Court refused to grant a It may be useful to observe, that it is not necessary for the landlord to be made defendant, in order to make his title admissible in evidence ; but that he may, with the tenant's consent, defend the ejectment in the tenant's name. And where a suit was so defended, and the lessor of the plain- tiff, having knowledge thereof, obtained from the tenants a retraxit of the plea, and a cognovit of the action, the Court directed the judgment to be set aside. (g) Thus far as to who may appear : we must now consider how the appearance should be made, and herein first of the Consent Rule. The form(/i) and purposes of the consent rule have al- ready been cursorily mentioned ;(t) but they must now be spoken of more fully. It is in substance as follows : First, The person appearing consents to be made defendant in- stead of the casual ejector. Secondly, To appear at the suit of the plaintiff; and, if the proceedings are by bill, to file common bail. Thirdly, To receive a declaration in ejectment,(^') and plead not guilty. Fourthly, At the trial of the issue to confess lease, entry, and ouster, and insist (e) Martin v. Darit, Stran. 914. (/t) Appendix, No. 26. Vid. con/. Ilillingfworth v. Brnctter, (i) Ante, 13. Salk. 256. (j) The declaration, served upon (/) Fenwick's case, Salk. 207. the tenant to bring him into court, (#) Doe, d. Lofkr, v. Franklin, 1 is the only declaration now delivered. Taunt. P. 30 234 OF THE CONSENT RULE. upon title only. Fifthly, That if at the trial the party ap- pearing shall not confess lease, entry, and ouster, wherebj the plaintiff shall not be able to prosecute his suit, such party shall pay to the plaintiff the costs of the non pros, and suffer judgment to be entered against the casual ejector. Sixthly, That if a verdict shall be given for the defendant, or the plaintiff shall not prosecute his suit for any other cause than the non-confession of lease, entry, and ouster, the lessor of the plaintiff shall pay costs to the defendant. Seventhly, When the landlord appears alone, that the plain- tiff shall be at liberty to sign judgment immediately against the casual ejector, but that execution be stayed until the Court shall further order.(A;) A trifling variation, with respect to the manner of de- scribing the premises, exists in form between the consent rule of the Court of King's Bench, and of the Court of Common Pleas. The defendant, in the former court, con- senting to confess lease, entry, and ouster, generally of all the premises mentioned in the declaration ; but, in the lat- ter, of so much of them only as are in his own, or his under- tenant's possession. The consent rules are, however, now considered as essentially the same in both courts ; and it is in all cases necessary for the plaintiff's lessor to give evi- dence at the trial, of the possession of the defendant, or his under-tenants, of the premises in dispute, at the time of the commencement of the action. (/) Formerly the consent rule was drawn up in both courts, according to the present practice in the Common Pleas, or it specially described the premises defended, at the discre- (7;)Sel. N. P. 644. (/) Goodright, d. Baltk, T. Rich, " 7 T. It. 327. OF THE CONSENT RULE. 235 lion of the defendant. Evidence of the possession of the tenant was then held necessary in the former case, but not in the latter; and so different were the principles upon which the courts then acted in regard to this action, from those by which they are now governed, that, by a rule of the court of King's Bench, in the time of Charles II.,(m) the defend- ant, in case the consent rule were drawn up generally, was obliged to give to the lessor of the plaintiff notice in writing of the particular premises for which he meant to defend, in order to release the lessor from the proof of the defendant's possession. This practice was, indeed, soon discontinued, and it became customary in lieu thereof, to insert in the margin of the consent rule, the particular premises for which the defendant appeared, which was then supposed to super- sede the necessity of any proof of possession ; but this mar- ginal insertion has also now degenerated into a mere form, and since the cases of Goodright, d. Balsh, v. Rich, in the King's Bench,(n) and Fenn, d. Blanchard, v. Wood, in the Common Pleas,(o) by which cases it has been decided in both courts upon principles the most correct, that evidence must in all cases be given of the possession of the defend- ant, or such of his under-tenants as have declarations in ejectment served upon them, the distinctions between ap- pearing for part, or appearing for the whole, or generally, or specially, describing the premises in the consent rule, no longer prevail. The general consent rule will, in all cases, be sufficient to prevent a nonsuit for want of a real lease, entry, and ouster, except when it is necessary that an actual entry(p) ahould be made upon the land previously to the commence- (m) Trio. Term, 16 CM. II. (o) 1 B. k P. 573. (n) 7 T. R. 327. (p) Ante, chap. 4. 236 OF CONSOLIDATING ACTIONS. ment of the suit. When, therefore an ejectment is brought by a joint tenant, parcener, or tenant in common, against his companion, (to support which an actual ouster(q") is ne- cessary,) the defendant ought to apply to the court upon affidavit,(r) for leave to enter into a special rule, requiring him to confess lease and entry at the trial, but not ouster also, unless an actual ouster of the plaintiff's lessor by him, the defendant, should be proved ;[5] and this special rule will always be granted,(s) unless it appear that the claimant has been actually obstructed in his occupation. (/) As the consent rule contains conditions to be observed on the part of the claimant, as well as of the tenant, the clarimant is obliged to join in it : and an attachment will lie against either party for disobedience of this, as of every other rule of court. It may here be observed, that when several tenants are in possession, to whom the claimant delivers declarations for different premises, the Court will not join them in one action, on the motion of either party, although the claim- ant has but one title to all the lands ; for, if the motion be made on the part of the plaintiff, the Court will object, that each defendant must have a remedy for his costs, which he could not have if all were joined in one declaration, and the plaintiff prevailed only against one of them ; and if it be made on the part of the defendants, that the lessor might (q) Ante, 56. (/) Jtoion. 7 Mod. 39. Oatu, d. (r) Appendix, No. 26. Wig/all, v. Brydon, Burr. 1996 Doe, ($) Appendix, No. 27, 28. d. Ginger, v. Roe, 2 Taunt 397. [5] A defendant claiming as tenant in common, must enter into this spe. cial consent rule, otherwise he cannot allege no actual ouster as a defence. Jackton v. Denniston, 4 Johns. 312. OF CONSOLIDATING ACTION. 237 have sued them at different times, and it would be obliging him to go on against all, when perhaps he might be ready against some of them only.(w) But where several eject- ments are brought for the same premises, upon the same de- mise, the Court, on motion, or a judge at his chambers, will order them to be consolidated ;(z>) and although, where the premises are different, the Court will not consolidate the actions, yet, in a modern case, where, on a rule to show cause why the proceedings in all the causes (which were thirty-seven in number, and brought against the several in- habitants of the houses in Sackville-street) should not be stayed, and abide the event of a special verdict in one of them, as they all depended upon the same title, Lord Ken- yon, C. J. said, it was a scandalous proceeding on the part of the claimant; and the rule was made absolute. (TO) When the tenant intends to apply to be made defendant, his attorney must procure a blank form of a consent rule, and entitle it in the margin with the names of the plaintiff and casual ejector, inserting also therein, the premises as described in the declaration, or such part of them as he would wish to defend, and stating in the body the consent of both parties, that the tenant be made defendant. He must then sign his name to this paper, which is called the agreement for the consent rule,(x) and leave the same at one of the judge's chambers, when the proceedings are in the King's Bench, or with the prothonotary when in fhe Common Pleas, (where it will also receive the signature of the attorney of the lessor of the plaintiff,) together with a plea of the general issue. Common' bail is then entered (u) Medlifotv.Brewtlery2Keb.524. Burghen, Barn. 176. Hoe, d. Burl- Smith v. Crabb, Stran. 1149. ton, v. Roe, 1 T. R. 477. (p) Grinulone, d. Lord Bowers, v. (w) 2 Sell. Prac. 144. (x) Appendix, No. 24. 238 OF THE APPEARANCE. for the tenant, if the proceedings are by bill, or the usual appearance, if by original ; and the suit proceeds in his name, instead of that of the casual ejector.(^) When the landlord and tenant appear jointly, or the landlord appears alone, the same forms are observed, mu- tatis mutandis, together with the addition of counsel's sig- nature to a motion (which is motion of course, and must be annexed to the consent rule) to admit the landlord and te- nant, or landlord only, to defend : accompanied also, when the landlord appears alone, with an affidavit of the tenant's refusal to appear. (z) When the party who wishes to be made defendant is not the tenant, or actual landlord, but has some interest to sus- tain, the Court must be moved, on an affidavit of the facts, to permit him to defend with or without the tenant, as the case may require. If the tenant refuse to appear, the landlord cannot ap- pear in his name, nor appoint an attorney to do so for him, and an irregular appearance of this sort will be ordered to be withdrawn. (a) When it happens that the lessor of the plaintiff claims lands in the possession of different persons, and one of the tenants would be a material witness for the others, such tenant should suffer judgment to go by default, as to the part in his possession ; because, if he appear, and be made a defendant, he becomes a party to the suit, and conse- O) 2 Sell. Prac. 102. (a) Roe, d. Cook, v. Doe, Barn. 30. (a) Hobson, d. Bigland, v. Dobson, 178. Bam. 179. 2 Sell. Prac. 102. Ap- pendix, No. 29. HOW TO APPEAR. 239 quently cannot be a witness therein ; and it seems, that if he appear and plead, the Court will not afterwards strike out his name upon motion. (6) When the landlord is admitted to defend without the tenant, judgment must be signed against the casual ejector, according to the conditions of the consent rule. The rea- son for this practice is, to enable the claimant to obtain possession of the premises, in case the verdict be in his favour; because, as the landlord is not in possession, no writ of possession could issue upon a judgment against him. The motion to admit the landlord to be defendant, in- stead of the tenant, ought regularly to be made before judgment is signed against the casual ejector, by the oppo- site party ; and if it be delayed until after that time, the Court will grant the motion or not, at their discretion.(c)[6] Thus, where a judgment against the casual ejector was signed, and a writ of possession executed thereon, and it appeared, upon motion, that the landlord's delay in his ap- plication arose from the tenant's negligence, in not giving him due notice of the service of the declaration, according to the provisions of statute 11 Geo. II. c. 19. s. 12., the Court ordered the judgment and execution to be set aside, compelled the tenant to pay all the costs, and permitted the landlord to be made defendant on the usual terms ; notwithstanding it was strongly argued by the opposite (6) B. N. P. 98. (c) Dobbt v. Passer, Strao. 975. [6] After judgment by default against the casual ejector, the Jandlord may be let in to defend. Jackson r. Stile*, 4 Johns. 493. In such case, the judgment against the casual ejector remains, with stay of execution, till the further order of the court. Ibid. 4V5. 1 Her. Laws, 443, 444. 240 OF THE APPEARANCE. party, that the judgment was perfectly regular, and that the tenant's negligence was entirely a matter between him and his landlord, for which the statute had given the land- lord ample compensation.(J) But in a recent case, the Court of Common Pleas, after a recovery in an undefended ejectment, without collusion, and after the lessor of the plaintiff had contracted for the sale of part of the premises, and let the purchaser into possession refused to set aside the judgment, and writ of possession upon an application of this nature, and assigned as their reason, that the conceal- ment of the delivery of the declaration was a matter be- tween the tenant and his landlord, with which the plaintiff's lessor had no concern. (e) And, in another case, where the landlord applied to be made defendant, after judgment had been signed, but before execution, and the claimant offered to waive his judgment, if the landlord, who re- sided in Jamaica, would give security for the costs, 'to which offer the landlord's counsel would not accede, the Court refused the application, and permitted the plaintiff's lessor to take out execution. (/) The appearance should, in all cases, be entered of the term mentioned in the notice, unless it be a country cause, and the notice be to appear in a non-issnable term, and then the appearance must be of the next issuable term ; and where the notice was to appear in Hilary term, and the tenant entered an appearance in Michaelmas term, and did nothing farther, and the plaintiff's lessor, finding no ap- pearance of Hilary term, signed judgment against the casual ejector, the Court held the judgment regular, but (rf) Doe, d. Troughton, v. Roe, (/) Roe, d. Hyde, v. Doe, Barn Burr. 1996 186. (e) Goodtitlt v. Badtitie, 4 Taunt, fc OP THE APPEARANCE. 241 afterwards set it aside upon payment of costs, to try the merits.(g) The party, intending to defend the action, having ap- peared according to the forms above mentioned, the les- sor's duty in consequence thereof, must be our next con- sideration. When the time for appearance has expired, the lessor's attorney must search at the proper offices for the agree- ment before mentioned on the part of the defendant, to enter into the consent rule ; and, having signed his name on it, above that of the defendant's attorney, and also (when the proceedings are in the King's Bench) obtained the signature of the judge, at whose chambers the agreement was left, he must take it to the clerk of the rules, or secon- dary, who will file it, and draw up the consent rule there- upon :(h) which consent rule is, in truth, a copy of the agreement, prefixing only the date of drawing it up, omit- ting the premises in the margin, and adding " by the Court," instead of the attornies' names, at the end. The plea of the general issue, we have before observed, is generally left by the defendant with the agreement for the consent rule 7] and, when this is the case, as soon as the consent rule is drawn out, the issue is at once made up, with a copy of the rule annexed, and delivered to the de- fendant's attorney, with notice of trial as in other actions. (g) Mason, A. Kendall, v. Hodgson, (A) Appendix, No. 25. Barn. 250. [7] The delivering a new declaration, putting in common bail, and filing a plea, are acts simultaneous with the entering into the consent rule. Jackson v. Woodward, 2 Johns. Gas. 110. 31 242 OF THE PLEA. But if the plea be not left with the consent rule,(t) the plaintiff must give a rule to plead, and then judgment may be entered for want of a plea, as in other actions without a special motion in court for the purpose.^'^S] OF THE PLEA, AND ISSUE. The general issue in this action is, not guilty ;(k) and it seldom happens, by reason of the consent rule, that the defendant can plead any other plea. It is not, indeed, easy to imagine a case in which any other plea in bar can be necessary ; for as the claimant must, in the first instance, prove his right to the possession, whatever operates as a bar to that right, as a fine with non-claim, the statute of li- mitations, a descent cast, &c. must cause him to fail in proving his possessory title, and consequently entitle the defendant to a verdict upon the general issue. (/) As, how- ever, the consent rule was introduced for the purposes of () Where the plea was entitled (j) Reg. Hil 1649, and Trin. 18 with the true na.ne of the cause, but, Car. II. B. R. by mistake in the body of the plea, (&) Appendix, No. 30. the name of the lessor was inserted (/) In the time of Lord Coke, (Pey- as the person complaining, instead of toe's case, 9 Co 77.,) an accord with that of the plaintiff, and the lessor's satisfaction was held to be a good attorney, looking upon this plea as plea in ejectment, " because an eject- null and void, signed judgment against ment is an action of trespass in its the casual ejector ; the judgment was nature, and in trespass accord is a set aside, with costs, as irregular, for good plea ;" but as this plea is quite the plea was properly entitled, and inapplicable to the modern uses of the not a nullity. Goodlitle v. Badtitle, action, the Court, it is conceived, Barn. 191. would not at this time allow a defen- dant to plead it. [8] And where tenant had entered into consent rule, but does not file hit plea, he is considered as not having appeared, and default must be taken against casual ejector. Jackson v. Vitcher, 2 Johns. Cas. 106. Jackson r. Woodward, 2 Johns. Cas. 110. OF THE PLEA. 243 justice, the courts would undoubtedly permit the defendant to plead specially, if the particular circumstances of the case should require it.(m) A plea to the jurisdiction may be pleaded in ejectment by permission of the Court, but not otherwise. This per- mission is necessary, because a plea to the jurisdiction is a plea in abatement, and must, therefore, be pleaded within the four first days of the term next ensuing that of which the declaration is entitled, at which time the casual ejector, and not the tenant, is defendant. To obtain leave to plead such plea, the Court must be moved upon affidavit before the expiration of the four first days of term, the plea itself being first filed; and the motion should be for a rule to show cause why the defendant should not be permitted to plead the facts stated in the affidavit, and why the plea then filed to that effect should not be allowed. The latter part of the rule, and the filing of the plea, are necessary parts of the application ; because the four days would, in all pro- bability, expire before cause could be shown and the plea pleaded, unless such plea were pleaded be bene esse in the first instance. (n) Such, at least, has been the mode of proceeding in the only two reported cases upon the subject, which can be cited as authorities. But a practical difficulty occurs, for which these cases seem not to provide. At the time when the application for leave to plead to the jurisdiction is made, the tenant has not appeared, and the proceedings are against the casual ejector. By whom then should the plea be plead- ed, and how is the tenant to appear ? The most simple Cm) Philip* r. Bttry, Carth. 180. W. BIk. 197. Doe, d. Morion, r. Roe, (n) H'illiamt, cL Johtuvn, v. Keen, 10 East, 523. 244 OF THE PLEA. method of avoiding these difficulties is for the tenant, iu the first instance, to file the plea in his own name, and then move for a rule to show cause " why he should not be forth- with admitted defendant upon the usual terms, except as far as relates to pleading the general issue, and why he should not be permitted to plead the facts stated in the af- fidavit, upon which he moves, in lieu thereof, and why the plea already filed by him to that effect should not be al- lowed." Ancient demesne is a good plea in ejectment ;(o) but it is a plea much discouraged, and the person pleading it must carefully observe every form which the Court deems neces- sary. As it is a plea in abatement, application for leave to plead it must, as has already been stated, be made within the four first days of term ; and the application must be ac- companied by an affidavit, that the lands are holden of a manor which is ancient demesne, that there is a Court of ancient demesne regularly holden, and that the claimant has a freehold interest ; and the court will refuse the mo- tion if any of these facts be omitted in the affidavit.(/?) Ancient demesne cannot of course be pleaded where the ejectment is brought for copyhold lands ;(( j BY HEIRS. 251 he may prefer one tenant to another.( J)[7] In like manner, a person who has mortgaged lands cannot be an evidence (d) Fox v. Su>cmn, Styl. 482. Bell v. Harwood, 3 T. R. 308. [7] The tenant is a competent witness when testifying against his interest. Jackson v. Vredenbrugk, 1 Johns. Rep. 157. A feme covert, who bad executed a deed with her husband, is a competent witness to prove that the deed was antedated ; for, if antedated, an acknow- ledgment made by her, at any time, would bar her right to dower, and if not acknowledged her signing was no bar. Jackson v. Bard, 4 Johns. 230. A person having a right of dower in the premises in dispute, is a competent witness, for the recovery in ejectment cannot be given in evidence against her. Jackson v. I'anduaen, 6 Johns. 144. The declarations of a party to an instrument, who may be considered as interested at the time to declare in the particular manner testified to, can in no case be admitted as evidence for any purpose. Clarke v. Haile, 12 Mass. Rep. 439. So the declarations of a grantor are inadmissible, even after the death of the grantor, and all the subscribing witnesses. Bartlet v. Delprat, 4 Mass. Rep. 702. Evidence of the declarations of one who has given a deed with warranty, cannot be received to support a title deduced from such person, for the testi- mony of the person himself to that point would be inadmissible, but the de- clarations may be received to show in what character such person entered. Jackson v. Vredenbrugh, 1 Johns. 159. A. gave a deed with warranty to B., and afterwards, by another deed with warranty, conveyed land adjoining to C. In an action in which the question was, whether the bounds of the land granted to B. did not extend go as to in- clude the premises granted to C. A. was held not a competent witness as to the boundaries, for he is interested to support C.'s title. Jacksonv.Hallenbach, 3 Johns. 394. But had he been equally liable to either, in case cither had recovered, then he would have been competent. Ilderton v. Atkinson, 7 T. R. 480. Where A. conveys to B. with warranty, and B. conveys to C. with warranty, A. is a good witness for C. on being released by C., for the release prevents C. from resorting either to A. or B. Jackton v. Root, 18 Johns. 60. A grantor in a deed which is impeached as fraudulent, on being released by the grantee, is competent to prove, as well as to disprove, the fraud, the objection going only to his credit. Jackson v. Frost, 6 Johns. 135. The Supreme Court of Massachusetts has decided, that a party to a deed of land, who is not interested, is competent to prove the deed fraudulent or rid. Hill T. Payson, 3 Mass. Rep. 669. and Laker v. Haynts, 11 Mass. Ben. 498. 252 OF THK EVIDENCE concerning them ; for the equity of redemption still re- mains in him.(e) An heir apparent may, however, be a witness concerning the title of the land, because his heir- ship is a mere contingency ;[8] but a remainderman can- not, for he hath a present estate in the land : and this rule extends to the remainderman in tail.(/) Let us now consider the proofs to be adduced by a claim- ant in ejectment, when his title to the lands can be contro- verted. When the party claims as heir at law, he must prove that the ancestor from whom he derives his title, was the person last seised of the actual freehold and inheritance ; that is to say, who was last actually in possession of the lands in fee-simple, (g) and that he, the claimant, is his heir. This seisin of the ancestor may be proved in the first instance, by showing that he was either in the actual pos- session of the premises, at the time of his death, or in (e) Anon.\l Mod. 364. (g) Co. Litt. 11. b. Jenkins, A (/) Smith v. Blackham, Salk. 283. Harris, v. Prilchard,2 Wils. 45. But that a persn, who has undertaken to convey a title to land, is incom- petent to testify that he had no tide. Slorer v. Balson, 8 Mass. Rep. 431. The Supreme Court of Pennsylvania say, in Lessee of Cain v. Henderson, (2 Bin. Penn Rep. 108.) that the grantor of a tract of land, who has not given any warranty, nor practised any deception, is a competent witness to sup- port the title. And they also say, in M'Ferran v. Powers, (1 Serjeant &, Rawle, 102.) that the rule, that no man shall be permitted to impeach his own deed, applies only to negotiable instruments ; and a grantor in a deed with- out warranty is a good witness to invalidate it. [8] A remote, or contingent interest, goes only to the credit, and not to th* competency of a witness. Stewart T. Kip, 5 Johns. 266. BY HEIRS. 253 the receipt of rent from the ter-tenant ; for possession it presumptive evidence of a seisin in fee, until the contrary be shown.(/t)[9] If, however, it is probable that the de- fendant may be able to rebut this presumption, the lessor should be prepared with other proofs of his ancestor's title. In order to show the heirship of the claimant, he must prove his descent from the person last seised, when he claims as lineal heir, or the descent of himself and the per- son last seised from some common ancestor, or at least from two brothers or sisters,(i) if he claims collaterally ; together with the extinction of all those lines of descent which would claim before him. This is done by proving the marriages, births, and deaths, necessary to complete his title, and showing the identity of the several parties. Thus, supposing A. the claimant, and B. the person last seised; to be cousins, descended from a common ancestor C., B. being the only child of Z)., the elder son of C., and A. the only child of E., the younger son of C. In this Case A. must prove the marriage of C., the birth and mar- riage of D., the birth, marriage, and death of ., the birth and death without issue of ., and his own birth ;(j) for it is a maxim of law, that he who asserts the death of ano- ther, who was once living, must prove bis death, whether the affirmative issue be that he be dead or living. (A:) (/) B. N. P. 103. (j) -2 Blk. Comra. 208, &c. (i) Roe, d. Tlwrnt, v. Lord, 2 W. (k) Wilson v. Uodget, 2 East, 312. Blk. 1099. [9] Where the ancestor died in possession, and his son and heir succeeded, and continued in undisturbed possession for 18 years, it was held, that a pur- chase of the title by the ancestor might be presumed, Jackson v, M'Call, 1O Johns. 377. 254 OF TriE EVIDENCE The testimony of persons present when the events hap- pened, or who knew the parties concerned at those periods, and the production of extracts from parish registers, are the most satisfactory modes of proving facts of this nature ; and when the claimant is the lineal descendant of the per- aon last seised, but little difficulty can arise in procuring the necessary proofs. But when he claims as collateral heir, and it is necessary to trace the relationship between him and the person last seised through many descents to a common ancestor, difficulties often intervene, from the remoteness of the period to which the inquiries must be directed, which, upon the ordinary rules of evidence, would be insuperable. To remedy this evil, the courts, from the necessity of the case, have relaxed those rules in inquiries of this nature ; and allow hearsay and reputation (which latter is the hearsay of those, who may be supposed to have known the fact, handed down from one to another) to be admitted as evidence in cases of pedigree. (/)[1][2] Thus, declarations of deceased members of the family are admissible evidence to prove relationship ; as who was (0 Higham v. Ridgway, 10 East, 120. [1] Ip an action of ejectment the lessors, who claimed to be heirs, resided in England, a witness here deposed that he knew the ancestor, and had charge of his land as agent, and corresponded with him, and after his death with the lessor, who sent him a power of attorney to act for him as heir and devisee, and that his information was also derived from persons acquainted with the lessor's family ; it was held, this was prima facie sufficient evidence of pedi- gree to go to the jury. (Spencer, J. dissenting.) Jackson v. Cooley, 8 Johns 128. [2] Where witnesses are not connected with the family, have no personal knowledge of the facts of which they speak, and have not derived their infor- mation from persons connected or particularly acquainted with the family. but speak generally of what they have heard, their testimony will not be rc : reived to prove a pedigree. Jackson v. Browner, 18 Johns. 37. BY HEIRS. 255 a person's grandfather, or whom he married, or how many children he had, or as to the time of a marriage, or of the birth of a child, and the like, of which it cannot reasonably be presumed, that better evidence is to be procured. (m)[3j So also declarations made by a deceased husband, as to the legitimacy of his wife, are evidence, though he was not re- lated to her by blood ; for the husband must be supposed to have more intimate knowledge on that subject than a distant relation. (w) In like manner the declarations of parents, as to whether they were ever married, or whether their children were born before or after marriage, is admissible evidence ; although their declarations cannot be received to bastardize their children born in wed- lock.(o)[4] But hearsay evidence is not admissible to prove the place of any particular birth ; for that is a question of locality only, and does not fall within the principle of the rules applicable to cases of pedigree :(p) nor are the opi- nions of deceased neighbours, or of the acquaintances of the family, evidence on questions of this nature 5(9) nor is Cm) B. N. P. 294. (?) Vowels v. Young, 13 Vez. 147, (n) Vowels v. Young, 13 Vez. jun. 614. Rex v. Inhabitants of Ens- 148. well, 3 T. R. 7u7, 723. Week* T. (o) Goodnghl, d. Stevens, v. Moss, Sparke, 1 M. it S. 688. et vide 14 Cowp. 591. East, 330. (p) Rex v. Inhabitants of Erith, S East, 542. [3] Hearsay is admissible evidence of the death of a person. Jackson \. Boneliam, 15 Johns. 226. [4] Declarations m extremis are inadmissible, except in the single instance f homicide. Wilson v. Doer tin, 15 Johns. 286. The declarations of a person, who is himself a competent witness, cannot be given in evidence. H ovdard v. Paine & Lake, 15 Johns 4U3. 256 OF THE EVIDENCE the hearsay of a relative to be admitted when the relative himself can be produced. (r) It is also necessary, in order to entitle the declarations of a deceased relative to be ad- mitted, that they should be made under circumstances, when the relation may be supposed without an interest, and without a bias ; and, therefore, if they are made on a subject in dispute after the commencement of a suit, or after a controversy preparatory to one, they ought not to be received, on account of the probability that they were partially drawn from the deceased, or, perhaps, intended by him to serve one of the contending parties. (s) Entries in family bibles, or other books, may likewise be received in evidence in questions of pedigree. (<) So also recitals in family deeds, monumental inscriptions, engrav- ings on rings, old pedigrees hung up in a family mansion, and the like.(u) And where a will of a deceased ancestor was found, amongst the papers of the person last seised, cancelled, and no evidence was given of its having ever been proved or acted upon, it was nevertheless allowed to be read in evidence as a paper relating to the family ; the place in which it was found being considered as amounting to its recognition, by the party last seised,as the declaration of his ancestor concerning the state of his family.(w) And in a late case, proof by one of the family, .that a particular person had many years before gone abroad, and was sup- posed to have died there, and that the witness had not heard in the family of his having married, was held good (r) Pendrell v. Pendrell, Stran. (/) Whitlocke v. Baker, 13 Ve*. 294. Harrison v. Blades, 3 Campb. 614. 467. (u) Vowel* T. Young, 13 Vez. (*) The case of the Berkeley Peer- 148. fige, 4 Campb. 401. (r) Doe, d. Johnson, v. Lord Pem- broke, 11 East, 505. BT HEIRS. 257 prima facie evidence of the person's death without lawful issue. (tc) The original visitation books of heralds, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were veri- fied to them on oath, are allowed to be good evidence of pedigrees. (x) When the lessor claims as heir to copyhold premises, he must, in addition to the foregoing evidence, produce the rolls of the manor,(7/) which show a surrender to him, or to those under whom he claims ; but it is not necessary that he should prove his own admittance, unless the ejectment be against the lord. (2) If, however, the ejectment is against the lord, he must either show that he is admit- ted, or that he .has tendered himself to be admitted and been refused ; but it is not necessary to tender himself to be admitted at the lord's court, if the steward, upon appli- cation out of court, has refused to admit him. (a) When he claims as customary heir, he must, after prov- ing his pedigree, show that he is heir strictly within the custom, for every custom which departs from the common law is construed strictly ; and if the custom be silent, the common law must regulate the descent.(i) Thus, where the custom is that the eldest sister shall inherit, the eldest (to) Doe, d. Banning, v. Grffii, Holilfasl, d. Woollams, v. Clapham, 1 15 East, 293. et vide 19 Car. U. E. R. 600. Doe, d. Tarrant, v. ///- c. 6. R. 1. Doe, d. George, v. Jetton, Her, 3 T. R. 162. Ante, 66. 6 East, 80. (a) Doe, A Burrell, Y. Bellamy, 2 . (x) 2 S. N. P. 772. M. &t S. 87. Ante, 67. (y) Pott. 270. (6) Co. Copy, 43. (z) Rwnruy Y. Eva, 1 I eon, 100. 33 238 OF THE EVIDENCE aunt, or niece, is not within it.(c) So, also, if the custom be that the youngest son shall inherit, it will not extend to the youngest nephtw.(d) The usual method of proving these several customs, is by means of the different admissions of the customary hein upon the court rolls of the manor, produced by the steward upon oath, or by the medium of verified examined copies. But if the ancient court rolls should be lost, or there should be no instance of an admission upon them, similar to the cus- tom set up by the lessor, an entry upon the rolls, stating the mode of descent of lands in the manor, will be admissible evidence as to the existence of the custom. (e) Where, however, the lessor claimed as youngest nephew, and pro- duced, as the only evidence to support his title, an admis- sion upon the court rolls of a youngest nephew, as custo- mary heir, at a court-leet and baron held in 1657 ; and for the defendant it appeared .upon the same, rolls, that at a court-leet and baron held in 1692, the jury and homage found, that the custom of descent extended only to the youngest son, and if no son, to the youngest brother, and no farther ; (which entry was corroborated by two old wit- nesses, who testified, that they had heard and believed that the custom went no farther ;) upon a verdict being found for the lessor of the plaintiff, the Court refused to set it aside. (/) It may here be useful to observe, that when the lessor claims as heir, and proves his pedigree and stops, and the defendant sets up a new case, which is answered by fresh (c) Radeltff v. Cliaplin, 4 Leon. T. R 26. Denn, d. Goodwin, v. Spray, 242. 1 T. R. 466. (rf) 1 Roll. 624. (/) Doe, t been contrary to the deed, and where the subscribing witnesses have been long dead, a recital in another deed, particularly if made by persons likely to know the fact, is evidence of the lost deed. So a deed containing such a recital, by a person to whom the lost deed is alleged to have been given, and who has been in the possession a longtime, may be evidence to show the nature of his possession, and that he exercised acts of ownership, and held under the lost deed. The Supreme Court of the United States have decided, in the jcase of Barr v. Gratz, (4 Wbeaton, 215, 221.) that a deed more than 30 years old, proved to have been in the possession of plaintiff', and actually asserted by him at the ground of his title in a Chancery suit, v. as admissible without regular proof of its execution. A deed cannot be given in evidence until some interest is shown in the grantor. Lessee of Peters v. Cmulfon, 2 Serjeant i: Rawle's Penn. Rep. 80. But this rule cannot apply to an ancient <\c-<\ BY DEVISEES. 261 credible witnesses, or else shall be utterly void and of ) Indeed, even short notes taken by an attorney for the purpose of drawing up a will, where the party died before the will could be completed, have been held sufficient to pass copyhold premises. (zo) It has been said, that any paper, which the Ecclesiastical Court would hold to be a will, shall be sufficient to pass a copyhold previously surrendered,(x) and it is, therefore, (77) Doe, d. Walker, v. Slcphenson, (t) Doe, d. Bennington, T. Hall, 16 3 Esp. 284. S. C. 4 Esp. 50. East, 208. (?) Roe, d. Jefferey, v. Hickt, 2 (u) 32 Hen. VIII. c. 1. Wils. 13. Doe, d. Vernon, v. Vernon, (t>) JVuA v. Edmunds, Cro. Eliz. 7 East, 8 Jhile, 66. 100. Doe, d. Cook, v. Danvers, 7 (r) Folkard v. Hemet, W. Blk. 1061. East, 299. The King v. Shelly, 3 T. R. 141. (u>) 1 Ander. 34. 8S. (*) Doe, d. Hanson, v. Smith, 1 (*) Carey v. Atktw, 2 Bro. Cha. Oampb. 197. Rep. 68. BY DEVISEES. 271 usual to produce the probate, as well as the original paper- writing ; but this probate does not appear to be necessary, for it seems that the Courts of Common Law may enter into the question, whether the paper amounts to a will, al- though no probate has in fact been granted, (y) If the lessor be the legatee of a term for years, he must give in evidence the probate of the will, and prove the as- sent of the executor to the devise ; for where a person de- vises either specifically or generally, goods or chattels, real or personal, and dies, the devisee cannot take them without the assent of the executors. (z) He must also prove the title of his testator, and show that he had a chattel and not a freehold interest in the premises ; because, when a party dies in possession, it is presumed that he is seised in fee until the contrary is shown. (a) This is most commonly done by the production of the lease : but in a late case, where the lessor put in an answer of the defendants to a bill in equity, in which the defendant stated, that " he believed the lessor was possessed of the leasehold premises in the bill mentioned," it was held, as against the defendant, suffi- cient evidence that the interest of the testator was only a, chattel interest.(i) When an ejectment is brought by a personal representa- tive, he must produce the probate of the will, or letters of administration, or the book of the Ecclesiastical Court, wherein they are entered, in addition to the proof of his testator's or intestate's title. (c) (.V) Doe, A. Smith,*. SmM,Peake's (6) Doe, d. Digby, T. Steel, 8 Evid. 456. Campb. 1 15. () 1 Inst. Ill (a) Anltt 73. (r) Garret v. Litter, 1 Ley. 26. (a) Ante, 252. Elden v. Keddell, 8 ast, 187. Coot B. N. T. 108. J? J OF THE EVIDENCK When an ejectment is brought by the surrenderee of copyhold lands, he must prove the surrender to his use, and his subsequent admittance ; but it is immaterial whether the admittance be before or after the day of the demise in the declaration. (J) When the lessor of the plaintiff is the lessee for years of a copyholder, he must, after proving his lessor's title, show either a special custom in the manor, allowing the copy- holder to make leases for years, or that the licence of the lord was obtained before the lease was granted. (e) When an ejectment is brought by a tenant by elegit, arid the debtor is himself in possession of the land, the only evi- dence necessary is an examined copy of the judgment roll, containing the award of the elegit, and return of the inqui- sition. If, however, the possession is in a third person, the lessor must either show that such third person came into possession under the debtor, and that his right to the pos- session has ceased, or (should the party in possession hold adversely to the debtor) be prepared with evidence of his debtor's title, (f) It is not necessary in any case to prove a copy of the elegit and inquisition. (g) The conusee of a statute merchant, when the debtor is in possession, must prove a copy of the statute, of the capias si laicus, extent and liberate returned ; for although by the return of the extent an interest is vested in the conusee, yet the actual possession of that interest is acquired by the li- berate.^) The same proofs are also necessary when a (d) Antt, 66. (g) Ramsbottom v. Brickhurst, 2 M. (e) Co. Copy, s. 61. &. S. 665. (/) Doe, d. Da Costa, v. Wharton, (h) Hammond v. Wood, 2 Salk. 668 9 T. R. 2 BY TENANTS BY ELEGIT, &C. 273 third person is in possession, as in the case of a tenant by clegit. When a parson brings ejectment for the parsonage-house, glebe, or tithes, he must prove his admission, institution, and induction 5(7) but he need not show a title in his patron, for institution and induction, although upon the presentation of a stranger, are sufficient to put the rightful patron to hie quare impedit.(j) Proof was also formerly required that he had read and subscribed the thirty-nine articles, according to the statute, and declared his assent and consent to all things contained in the book of Common Prayer; but this is no longer held to be necessary, unless some ground be laid by the defen- dant to show that he has not complied with these requisites ; because the presumption is, that every man has conformed to the law, until there be some evidence to the contrary. (k) Entries made by a deceased rector in his books, may be given in evidence by his successor,(/) upon a question of tithes ; and he is also entitled to give in evidence such ter- riers as have been regularly made and preserved in the pro- per repository ; that is to say, such terriers as are signed by a churchwarden, or (if the churchwardens are nominated by the parson) by some of the substantial inhabitants of the parish,(w) and are found either in the bishop's register of- fice,^*) or in the registry of the archdeacon of the diocese.(o) (t) Snow v. Phillips, 1 Sid. 220. (m) B. N. P. 248. Earl r. Lcwit, 4 ( B. N. P. 105. Esp. 3. (*) Poteel v. Milburn, 3 Wils. 355. (n) Alkitu v. ITatton, 4 Gwill. I40. S. C. 2 W. Black. 851. (o) Potts r. Ditrant, 4 Gwill. 1460. (I) Glyn v. Batik of England, 2 Vw. 1454. 38. 43. Roe, d. Hrunr, v. Kaiclingt, 7 Eut, 270. 290. 34 1't I OF THE EVIDENCE It is not necessary that the terrier should be signed by the parson ; but, unless it possesses the marks of authenticity above mentioned, it cannot in general be received in evi- dence. But where a terrier was found in the registry of the dean and chapter of Litchfield, it was admitted in evidence against one of the prebendaries upon the principle, that there appeared to be a proper connexion between the ter- rier and the place where it was found. (p) An ejectment for a parsonage and glebe, will not be sup- ported by showing that the defendant entered and took the tithe belonging thereto ; because the tithes and the rectory are not the same. (q) When a lay impropriator brings an ejectment for tithes, the strict proof of title is to show, that the rectory origi- nally belonged to one of the dissolved monasteries, and was granted by the crown to those under whom he claims ;(r) but, as deeds and instruments are liable to be lost, length of possession, and old deeds conveying tithes, have been deemed sufficient evidence of title. (s) When an ejectment is brought by a guardian in socage, he must prove, in addition to the title of his ward, that he (the ward) is under fourteen years of age ;(<) and upon the same principle, when a testamentary guardian is the lessor, he must show the age of his ward to be less than twenty- one years. When the assignees of a bankrupt are the lessors of the (p) Miller v. Foster, 4 Gwill. 1406. (s) Ktnaston v. Clarke, 5 T. R. 266. (q) Hem v. Stroud, Latch. 61. in notit. (r) Vide Com. 661. (/) Doe, d. Rigge, T. Bell, 5 T. R 471. BY JOINT TENANTS, &C. 275 plaintiff, they must give evidence of the assignment, bank- ruptcy, &c. in the same manner, and subject to the same rules, as in other actions. (M) They must likewise prove the bankrupt's title to the premises ; and, if the lands are freehold, the bargain and sale, and enrolment thereof ;(i>) and also, if his title accrued after his bankruptcy, a spe- cial conveyance of them by the commissioners to the as- signees.(zo) Where several lessors declare upon a joint demise, proof of a joint interest in the whole premises must be given.[9] But, if a demise is laid by each of several lessors separate- ly, they will be entitled to recover, whether they have a joint or several interest, for a several demise severs a joint tenancy.(x) And in a case where a joint demise was laid by seven trustees of a charity, who were appointed at dif- ferent times, and the tenant had paid one entire rent to the common clerk of the trustees, it was held that such pay- ment of rent should enure in the most beneficial way for the trustees in support of their title as brought forward by themselbs, unless the defendant expressly proved them to be entitled in a different manner. And it was considered (u) 49 Geo. HI. c. 121. fjr) Doe, d Afarsack, v. Read, 12 (r>) Egp. N. P. 431. 438. East, 67. (w) Ante 69. [9] An admission contained in a recital of a deed of one of the lessors, in an action of ejectment, is evidence against all of them, as he could not be called as a witness, and there was a community of interest among them. Brandt v. Klein, 17 Johns. 336. A deed, containing a recital of another deed, is evidence of the recited deed against the grantor, and all persons claiming by title derived from him sub- sequently. But it is not evidence against one who claims from him by title, prior to the deed containing the recital, nor is it evidence against a stranger. Penrose Y. Griffith, 4 Binney's Penn. Rep. 231. 276 OF THE EVIDENCE that the circumstance of their being appointed at different times was not sufficient evidence for that purpose. (y) When an ejectment is brought by one joint-tenant, parce- ner, or tenant in common, against his companion, the lessor may be called upon to produce the consent rule, and if it appear that a special one has been granted, that the de- fendant shall confess lease and entry only, the lessor must prove an actual ouster by his co-tenant ;(z) but if the con- sent rule be in the common form, it will be sufficient evi- dence of an ouster.(a) Next, of the proofs required when a privity exists be- tween the defendant and lessor of the plaintiff, or those under whom he claims. ' ;'f'*"-O.. ' . . .-t ' ' ;;" " ' it*> ',- ' :._J. When a privity exists between the parties to the eject- ment, the claimant, instead of proving his title, should show the existence and termination of the privity ; for a privity will not be presumed to exist without proof, but being proved, the presumption is in favour of iL continu- ance. Thus, if the defendant be let into possession, pend- ing a negotiation for a purchase or a lease, proof must be given of the circumstances under which he was let into possession, and also of the breaking off of the negotiation before the day of the demise in the ejectment. In like manner, if he has become tenant at will of the premises, the lessor must show how he became so, and that the will was determined by demand of possession or otherwise, and o forth.(i) (y) Doe, d. Clarke, v. Grant, 12 (a) Doe. d. White, v. Cuff, 1 Campb. East, 221. 173. () Ante, 6. (b) Ante, 98. 1 1 1. In a case, where the landlord by his own negligence, BY JOINT TENANTS, &C. 27? When the relationship of landlord and tenant regularly subsists between the parties, or those under whom they claim, which is commonly the case in ejectments of this nature, the tenancy may be determined, as we have al- ready observed,(c) in three several ways. First, by the efflux of time, or the happening of a particular event. Secondly, by a notice from the landlord to the tenant to deliver up the possession, or vice versa ; and, thirdly, by a breach on the part of the tenant of any condition of his tenancy, as by the non-payment of rent, or non-perform- ance of a covenant. When the tenancy is determined by the efflux of time, the lessor has only tb prove the counterpart of the lease, (d) (for which purpose he must call one of the subscribing witnesses, if capable of being called,) provided the demise be by deed, or the agreement by some person present at the making of it, if it be by parol : and it is not necessary for him also to show, that he, or those under whom he claims, has received the reserved rent within the last twenty years. (e)[lj Where the tenancy is determined by the happening of a suffered a third person to recover in quarters of the term was unezpired. ejectment against his tenant, who held Baker v. Mellish, 10 Ves. 544. ct ride under a lease, and who attorned to Due, d. Powell, v. King, Forrest. 19 such third person, the court of Chan- (c) .//;'. 101. eery restrained the tenant from set- (d) Roe, d. IVat, v. Davit, 7 East, ting up the lease against an ejectment 363. about to be brought by his landlord, (e) Orrell v. Maddox, Runn. Eject. although only one year and three Appendix, 458. [1] If the validity of a deed depend on an act in pais, party producing it is bound to show the performance of such act. Williams v. Peyton, 4 Whea- tort'iU. S. Rep. 77. 278 OP THE EVIDENCE particular event, the lessor must, of course, also prove that the event upon which the tenancy is to determine, has happened. When the tenancy expires by reason of a notice to quit, the lessor must prove the tenancy of the defendant, the service of the notice and its contents, (and if given by an agent, the agent's authority,) and that the notice and the year of the tenancy expire at the same time. When also the notice is for a shorter period than half a year, or ex- pires at any other period than the end of the year of the tenancy, it will be necessary to show the custom of the country where the lands lie, or an express agreement, by which such notice is authorized. (f) *>.!'' < n '-'ii The tenancy of the defendant is commonly admitted, and may be proved when necessary, if no direct evidence can be given of the demise, by declarations on the part of the tenant, the fact of payment of rent, (and it is advisable to give the tenant notice to produce his receipts,) or the like.[2] The service of the notice, and the authority to serve it? (f)Antt, 131. [2] A deed produced at the trial pursuant to a notice, by a party to the deed, is prima facie to be taken to be duly executed, and may be read in evi- dence without proof of its execution. Belts v. Badger, 12 Johns. 223. On this subject the English decisions are not agreed. See 2 T. R. 44. 1 Etp. Rep. 409. 8 East, 648. 2 Camp. Rep. 94. But if party producing be not a party to the deed, then evidence of its exe- cution must be produced by the party calling for the deed. Jackson v. Kingi- ley, 17 Johns. 158 ; and the circumstance of the names of the subscribing wit- nesses being torn off, will not exempt the party from the necessity of proving the hand-writing of the party who executed it, there being no evidence tha 1 the party producing the deed had mutilated it. Ibid. BY JOINT TENANTS, &C. will be proved by the person who delivered it to the te- nant ; but if there is a subscribing witness thereto, such sub- scribing witness must also be called, although it should happen that he only witnessed the signature of the land- lord, and did not deliver the notice himself. The contents of the notice may be proved by a duplicate original, which should be compared with the notice actually served, by the party serving it ; but if this precaution is not taken, parol evidence may be given of its contents ; and it is not necessary in either case, to give the defendant notice to produce the original in his possession.(g) When the notice is given by an agent, it must be shown that he was vested with his authority at the time the notice was given. (h) And where two or more joint tenants, &c. are lessors of the plaintiff, and a notice to quit is given by one or more in the name of all, although they all afterwards join in an ejectment, it will not be presumed, from that circumstance, that an authority was originally given by the parties not joining in the notice, to their co-tenants. (t) But where a notice to quit was given by the steward of a corporation, it was presumed, inasmuch as he was an officer of the corporation, that he had an authority to give the notice, (j} When the tenant has been long in possession of the premises, it frequently becomes extremely difficult to prove the time of his original entry ; but nevertheless, some evi- dence must be given, from which the jury may presume that the time of the expiration of the notice, and of the (g) Jory v. Orchard, 2 B. fa. P. 41. (j) Roe, d. Dean of Rochesler, r. (h) Ante, 120. Pearce, 2 Campb. iH. (0 Right, d. Fisher, r. Cutheli, 5 Ust, 491. Ante, 120. 280 OF THE KV ll.K.Ni I year of the tenancy are the same, or the plaintiff will be nonsuited. If the tenant has heen applied to by his landlord, re- specting the time of the commencement of his tenancy, and has informed him that it began on a certain day, and, in consequence of such information, a notice to quit on that day is given at a subsequent period, the evidence is conclusive upon the tenant, and he will not be permitted to prove that, in point of fact, the tenancy has a different com- mencement : nor is it material whether the information be the result of design or ignorance, as the landlord is in both instances equally led into an error.(Ar) When also the te- nant, at the time of the service of the notice, assents to the terms of it, he will be precluded from showing that it ex- pires at a wrong time. But such .assent must be strictly proved ; and in a case where the party made no objection to the notice at the time of its delivery, but said, " I pay rent enough already, it is hard to use me thus ;" it was held, that these circumstances were not sufficient to pre- vent him from showing the time when the tenancy actually commenced. (/) When a notice to quit upon any particular day, is served upon the tenant personally, if he read its contents, or they be explained to him, without any objection being made on his part, as to the time of the expiration of the notice, it will be prima facie evidence of a holding from the day mentioned in the notice.(m) In like manner, a receipt for a year's rent up to a particular day, is prima facie evidence (k) Doe, d. Eyre, T. Lambley, 2 (m) Thomas, d. Jones, v. Tliomat. Esp. 635. 2 Campb. 647. Dot, d. Clarges, v. (/) Oaknpple, d. Green, v. Copous, Potter, 13 East, 405. 4 T. R. 361. BY LANDLORDS. 281 of a holding from that day.(n) But if the notice be not delivered personally, or be not read over or explained to the party, no such presumption will arise, although a con- trary doctrine was formerly maintained. (o) When also the notice is to quit generally at the expiration of the current year of the tenancy, &.c.(p) no presumption can arise, as to the time of the commencement of the tenancy, from a personal delivery to the tenant. But where a general no- tice was delivered on the 22d of March, to quit at the ex- piration of the current year, &c., and on the 16th of Janu- ary following, a declaration in ejectment was delivered to the tenant, laying the demise on the 1st of November, and the tenant on the receipt of this declaration made no ob- jection to the notice to quit, nor set up any right to the possession of the premises, but said he should go out as soon as he could suit himself with another house, it was ruled by Lord Ellcnborough, C. J., that the defendant's declaration^ when served with the ejectment, was evidence to go to the jury, whether the holding was a Michaelmas holding, and the jury found a verdict for the landlord. (7) And in a case, where the notice was delivered on Septem- ber 27, to quit " at the expiration of the term for which you hold the same," which notice was served personally upon the tenant, who observed, " I hope Mr. M. does not mean to turn me out," Holroyd, J. permitted the lessor to prove, that it was the general custom, in that part of the county where the demised lands lay, to let the same from Lady-day to Lady-day, and that the defendant's rent wa due at Michaelmas and Lady-day respectively, and direct- (n) Doe, d. Cattleton, T. Samuel, 6 (p) Ante, 132. I'M-. 174. ( ? ) Doe, brought upon a clause of re-entry for non-payment of rent, if the proceedings are at common law, the lessor must prove the lease or counterpart,^) and that the rent has been demanded with all the formalities mentioned in a preceding chapter.(/) If the case falls within the provisions of the statute 4 Geo. II. c. 28. instead of proving a demand of rent, he must show that H\ months rent is in arrear, and that there is not a sufficient distress upon the premises. (w) In order to prove the latter fact, evidence must be given that every part of the premises has been searched ; and in a case where a party who was about to make the distress, omitted to enter a cottage upon the premises, the Court considered the search insufficient. (p) But where the rent was payable on the 25th of March, with a proviso, that the right of re-entry should accrue, if the rent remained unpaid by the space of fourteen days next af- ter it became payable, and the lessor proved that there was no distress upon the premises some day in May, (the demise being laid on May 2.) the Court held this to be sufficient prima facie evidence to call upon the defendant to show, that there was sufficient distress upon the premises within the terms of the proviso. (a;) When the ejectment is for the breach of any other co- venant, the lessor must show the covenant broken, by the (r) Doe, A. Mines, v. Larnb, Not- (n) Ante, 150. n-lMin Summer Assi/.os, 1817 MS. (r) Doe, d. Powell, v '. King, For- (t) Roe, d. Wtst, v. Data, 7 Eust, rest. 19. 6tf. (IP) Doe, d. Smelt, v. Furhnn. 1* (0 Jnte, 149. East, 286. ' OF MORTGAGEES. 283 same evidence as in an action of covenant ; arid if he has been ordered by the Court to give to the tenant particulars of the breaches upon which he means to rely, he will be precluded from giving in evidence different breaches from those contained in the particulars. In a case where the c ;<( tment was upon a proviso for re-entry if the lessee should assign or underlet, it was ruled by Lord Al-canley, C. J., that if a person was found in possession, acting and appearing as tenant, it was sufficient prima facie evidence of an underlet- ting, to call upon the defendant, (the lessee,) to show in what character such person was upon the premises ; and that the declarations of such person were admissible in evi- dence against the lessee. (x) If the claimant is the assignee of the reversion, after prov- ing the forfeiture, evidence must be given that he was en- titled to the reversion at the time the forfeiture was com- mitted,^) and if possible, of the mesne assignments from the original lessor. These mesne assignments, however, will be presumed, if the original lease be for a long term, and the possession of the assignee have continued for a consi- derable time.(z) When the ejectment is brought for the forfeiture of a mortgage, if the mortgagor is the defendant, the mortgage deeds are the only evidence required, because a man can- not set up any title incon.-i>ieiil with his own deed. And if the ejectment be against a third person, who holds the mort- gaged lands as tenant to the mortgagor, or mortgagee, it will be only necessary in addition to the proof of the mortgage deeds, to give evidence of such tenancy, and either of its (r) Doe, d. Hinrf/ey, v. Rirkarby, 5 (*) Earl, d. Gocin : v. Baxter, Esp. 4. \\.. Black. 1228. (y) .Me, 74. 284 OF THE EVIDENCE regular determination, or of the mortgagor himself having been in possession of the lands at the time of the mortgage, and of the tenancy heing unacknowledged by the mortga- gee.^) If, however, such third person hold the lands by a title adverse to that of the mortgagor, evidence of the mortgagor's title will of course be required. When the lord of a manor brings an ejectment for a for- feiture, he must prove that he was lord at the time of the forfeiture committed, and that the person, who is alleged to have committed the forfeiture, has been admitted tenant on the rolls of the manor. Proof of the admittance of the father, and of the descent to the copyholder as son and heir, and payment of quit-rents by him, will not be suffi- cient evidence : the tenant must be himself admitted, for nothing vests in a copyholder which he can forfeit, before admittance and entry. The act of forfeiture must of course also be proved ; but proof is not required of the present- ment of the forfeiture, nor of the entry, or seisure, of the lord.(6) When the lord seises the land as forfeited pro defectu ie- nentis, if he seise absolutely, he must prove a special cus- tom in the manor entitling him to do so ; but if he seise only quousque, the custom need not be proved, and an abso- lute seisure unwarranted by the custom, cannot afterwards be set up as a seisure quousque.(c} He must also prove, that the regular proclamations have been made, and in one (a) Ketch v. ffatt,Doug. 21. Than- 11 East, 56. B. N. P. 108. el vide ier, d. Wearer, v. Rtlcfter, 3 East, Walk. Copy. v. i. 324. to 353. 449. Bircli v. WriglU, 1 '. R. 378. (c) Lord Salisbury'! case, 1 Lev. 63. Ante, 106. S. C. 1 Keb. 287. Doe, d. Tanant. (b) Roe, d. Jeffrey*, v. Hickt, 2 v. Hellier, 3 T.R. Id2. WU 8 . la Doe, d. Foley, v. Wiimn, BY THE DEFENDANT. 285 report of Lord Salisbury's case, it is said, that the procla- mations must be proved by rt'ra xoce evidence, and that the entry thereof on the Court rolls is not sufficient ;(r/) but no mention is made of this point in another report of the same case,(<) nor does it appear in a late similar decision, that any evidence of this nature was required.(/) A lord of a manor cannot maintain ejectment for mince upon his manor, without proof that he has been actually possessed of them within the last twenty years ; because they are a distinct possession from the manor, and may be of different inheritances. (g) And a verdict in trover, for lead dug out of them, will not be evidence of the possession of the mines ; for trover may be brought on property with- out possession.(A) The doctrine of presumption extends to copyhold lands, and upon proper evidence an enfranchisement of them may^ be presumed even against the crown. (i) Secondly, Of the evidence on the part of the defen- dant. The principle that a claimant in ejectment must recover on the strength of his own title, is now so clearly establish- ed that little can be said respecting the evidence necessary on the part of the defendant. The lessor of the plaintiff must always, in the first instance, make out a clear and sub- stantial possessory title to the premises in question ; and the defendant's evidence is altogether confined to falsifying () and in another case staid the pro- ceedings.^) (n) Styles, d. Redhead, v. Oalcts, the demise, he could not maintain bis Barn. 182. Fenn, d. Rickaltson, v. declaration. The present practice Marriott, Barn. 185. was adopted in the reign of William (o) Claxmore v. Searle, Ld. Rayro. III. (Haddock's case, 1 Vent. 365.) 729 B. N. P. 98. Formerly, if some Fogg v. Ruberts, 2 Vent. 196 of the defendants did not appear, the (p) Jones, d. Thomas, v. Hengest, plaintiff was nonsuited as to all ; be- Barn. 175. cause all the defendants not admitting (4) Law v. U'allis, 1 Barn. 156. OF THE TRIAL AT BAR. 291 In a case where the demise was laid on a day not come at the time of the trial, the defendant was notwithstanding obliged to confess, as the plaintiff would otherwise have been nonsuited, and have been entitled to judgment against the casual ejector.(r)[6] If the property litigated be of great value, and difficul- ties are likely to arise in the course of the trial, the Court will grant a trial at bar ; and the motion for this purpose may be made by either party. But the mere value of the premises,(s) or the probability of a protracted trial, will not be sufficient to induce the Court to grant the applica- tion ; difficulty must concur ; and, therefore, the motion must be supported by an affidavit, stating " the value per annum of the estate ; that many witnesses are to be pro- duced on each side ; that the title of the lessor of the plain- tiff will depend, as the case may be, on an intricate course of descent, or the legal operation of deeds ; that various points of law, and other questions, will necessarily arise at the trial ; and that the cause, therefore, should be tried at the bar of the Court, by a special jury of the county where the estate lies, if the Court shall so think fit, and not before any one judge of assize." (r) Anon. Ld. Raym. 728. el Sma//, (*) Lorrf Sandwich's case, Salk. 648. d. Baker, v. Cole, Burr. 1169. [6] In ejectment brought oa the forfeiture of a lease, the Court will com- pel the plaintiff to deliver a bill of particulars of the breaches of the covenant on which he intends to rely. So, if the plaintiff declare geneially in rjrct- tnent, and the defendant have any doubt what lands the plaintiff means to proceed for, he may call upon him by a judge's order to specify them. And, on the other hand, the plaintiff may call OD the defendant to specify for what he defends, when that is not ascertained by the consent rule. Doe v. Hull. 7 Term Rep. 332. n. (a.) Tidd's Pract. Vol. 1. 636. 292 OF THE TRIAL AT BAR. It has been said, that the rule is not to allow a trial at bar in ejectment, unless the value of the lands be a hun- dred pounds p< r annum ;(<) and in some authorities it is laid down, that it is not sufficient to swear generally, that the cause is expected to be difficult, but that the particular difficulty, which is expected to arise, ought to be pointed out, to enable the Court to judge whether it be sufficient.(w) And, in a recent case, the Court refused a trial at bar, on the mere allegation of length, and probable questions of difficulty in a cause respecting a pedigree. (T) In other actions, a rule for a trial at bar is never granted before issue joined ; but as the issue in ejectment is very seldom joined until after the end of term, when it would be too late to make the application, the motion in this action may be granted even before appearance. (tw) As the granting of a trial at bar is a favour conferred upon the applicant, the courts exercise the power of annex- ing equitable conditions to their grant. Thus, where, on an application made by the defendant for a trial at bar, it appeared, on showing cause against the rule, that the lessor of the plaintiff was unable to bear the expense, and that one of his witnesses was above eighty years of age, who might die before a trial at bar could be had. The Court granted the application, but said, that as it was a favour asked by the defendant, they would lay him under terms, that if he succeeded, he should only have nisi prius costs, but if the lessor of the plaintiff were to succeed he should have bar costs, and that the old witness should be examined (f) GoodrighJ v. Wood, I Barn. 141. (r) Tidd, 768. (u) Rex v. Burgessts of Caermar- (w) Roe, d. Cholmondlcy, v. Doe, then, Say, 79. 2 Lil. P. R. 740. Good- Barn. 466. right v. Wood, 1 Barn. 141. OF THE NEW TRIAL. 293 on interrogatories, and her deposition read, if she should die before the trial. It was also, by consent, made part of the rule, that the cause should be tried by a Middlesex jury, instead of one from Norfolk, where the premises were situated. (x) And, in another case, where the lessor of the plaintiff had had a rule for a trial at bar, but having laid the demise by a wrong person, had discontinued the ac- tion, and brought a new ejectment ; the Court would not grant him a second rule for a trial at bar until he had paid the costs of the former ejectment.(i/) After verdict, the successful party is, of course, entitled to the judgment of the Court ; but the same time is allowed to the other party to move for a new trial, or an arrest of judgment, in ejectment, as in other actions.[7] The courts will seldom grant a new trial in ejectment, when the verdict is given for the defendant, because all parties remaining in the situation they were, previously to the commencement of the action, the claimant may bring a second ejectment without subjecting himself to additional difficulties ; but this principle does not apply when the verdict is given against the defendant. The possession is then changed. The defendant in the first ejectment be- comes the plaintiff's lessor in the second, and is obliged to give evidence of his own title, instead of merely rebut- ting the claim set up by his opponent ; and as this is a point (x) rtotmti, tl. rotcn 7 T. Brown, (y) Lord Coningsby's case, Stran. Doug. 437. 648. [7] The Supreme Court of Pennsylvania have ruled, that two verdicts the same a\ in ejectment are no l>ar to a new trial, where there is ground to apprehend that the jury have erred, and that the statute of limitations wouM dpfrnt a nen- unit, tente f MHthf.ll v. Mitchell, 4 Bin. 180. 294 OF THE JUDGMENT. of material consequence to him, " the courts (to use Lord Mansfield's words) rather lean to new trials on behalf of defendants in case of ejectments, especially on the footing ef surpri8e."(z) OF THE JUDGMENT. By the judgment in ejectment, the plaintiff's lessor ob- tains possession of the lands recovered by the verdict, but does not acquire any title thereto, except such as he pre- viously had. If, therefore, he have a freehold interest in them, he is in as a freeholder; if he have a chattel interest, he is in as a termor ; and if he have no title at all, he is in as a trespasser, and liable to account for the profits to the legal owner, without any re-entry on his part ;(a) the ver- dict in the ejectment being no evidence in a subsequent action, even between the same parties. (b) Since, however, the claimant has a mere possession given to him by the judgment, it may be asked how he can become seised ac- cording to his title, if he have more than a chattel interest in the land. This is effected by another fiction. It is a rule of law, that when a man, having a title to an estate, comes into possession of it by lawful means, he shall be in possession according to his title ; and, therefore, when pos- session is once given by the sheriff, the possession and title are said to unite, and the plaintiff's lessor holds the lands according to the nature of his interest in them. As the judgment is grounded on the verdict, it ought not to be entered up for more land, or for different parcels, than the defendant was found guilty of by the verdict, though a (?) Clymerv.LUtUr, lW.Blk.345. (a) Taylor, d. Atkins, v. Horde, 348. Burr. 60. 90 114. (6) Uerke v. liouell, 1 Mod. 10. OF THE JUDGMENT. 295 variance between the verdict and judgment, occasioned by the misprision, or default, of the clerk in entering the judg- ment, is not fatal, but may be amended by the Court, even after a writ of error brought.(c) The Courts, indeed, after judgment, make every possible intendment in favor ofthe claimant ; and if the title declar- ed on can by any means be supposed to exist, consistently with the judgment, such judgment will be supported. Thus, where two demises were laid, by different lessors, of the same premises for the same term, both as to commence- ment and duration, and the judgment was, that the plaintiff recover his terms in the premises ; and it was objected, that both lessors could not have a title to demise the whole : and that, therefore, there was an inconsistency in the judg- ment, and that it did not appear which ofthe lessors' rights was established ; the Court affirmed the judgment ; because, after a verdict, a bare possibility of title consistent with the judgment is sufficient, and the two lessors might have been joint tenants, and yet refuse to join in a lease. (rf) In like manner, where the declaration contained two distinct de- mises, by two different lessors, of two distinct undivided thirds, and judgment was given, that the plaintiff" do re- cover his said terms," and on error it appeared, (from the facts stated in a bill of exceptions to the judge's directions on a point of law,) that the ejectment respected only one undivided third, the judgment was held well enough, when the point was only raised on a bill of exceptions, and semble that it would have been well even on a special verdict.(e) Upon the same principle, when in an ejectment on two se- (e) Mann v. Fox, Cro. Jac. 681. () Rove, '.. and the defendant is found guilty in A. only, the judgment(/) is, that the plaintiff recover hi* term in A. ; and as to the other part, whereof the jury ac- quitted the defendant, that the plaintiff be in mercy, and that the defendant go thereof without day.(m) If the defendant be acquitted of part, and judgment be entered, quod defendens sit quietus quoad, that part whereof he is acquitted, this is error; for the judgment in this ac- tion is not final, as in a writ of right ; nor does it protect the defendant from any further suit, but only acquits him against the title set up by the plaintiff in the action. (n) If a sole defendant die after the commencement of the assizes and before verdict, or after verdict and before judg- ment, it will not abate the suit ; nor can his death be al- leged for error, provided the judgment be entered within two terms after the verdict. (o) When there are several defendants, and one of them die at aay time before judgment, the lessor may proceed against the survivors, upon suggesting the deathQ0) of such defen- dant upon the plea roll : the suggestion need not also be entered upon the nisi prius roll ; for it is sufficient if it there appear to the judge, what he is to try, and between whom ; (0 As an ejectment is an action of T. Clerk, Carth. 390. S. C. 6 Mod. trespass ri et armis, the judgment 285.) before the statute of 5 and 6 W. &. M. (in) Judgment Book, 72, 73. c. 12. used to run quod defendens capi- (n) Taylor v. Wilbort, Cro. Eliz. atw; but, since that statute, such en- 768. try is no longer necessary. (Linsry (o) 17 Car. II. c. 8. (p) 8 and 9 Will. III. c. 11. s. 7. OF THE JUDGMENT. 299 nor need the judgment say, quod quarens nil capiat per breve against the dead defendant.(9)[8] If one of several defendants die before verdict, it is the better way to suggest his death on the roll before the trial, and to award a venire to try the issue against the surviving defendants 5(7) although where in such case the venire was awarded against all, upon suggesting the death of the one upon the roll after the verdict, the plaintiff had judgment for the whole against the others. (r) But if the lessor pro- ceed to trial, and obtain judgment against all the defen- dants, without such suggestion, it is error, because there can be no verdict, or judgment, against a person not in be- ing.^) The entry of the judgment, notwithstanding the death of one of several defendants, ought to be general, that the plaintiff recover his term in the premises against the survi- (q) Far v. Derm, Burr. 362. () Gilb. Eject. 98. (r) Uree v Rolle, Ld. Raym. 716. [8] In ejectment, where defendants sever in pleading, and enter into se- parate consent rules, the notices and pleadings must continue to be entitled against all, but each party must be served with a notice. Jackson v. Cooper, 1 Caines' Rep. 10. Where several defendants plead jointly, plaintiff" is bound to prove a joint possession ; and if it appear that two of the defendants lull in severally, and the others jointly, plaintiff* can hare judgment only against those holding joint- ly, and the defendants holding in geveralty will be entitled to judgment, for otherwise those holding in severally would be liable fur the mcsnc profits of the whole. Jackson v. Hazen,2 Johns. 438. In a subsequent case, however, (Jackson v. Woods, 6 Johns. 281.) Kent,C J. jays, " perhaps tb> doctrine in Jackson v. Hnsen, was pressed too far," and decided, that in ejectment against five defendants, whrre the jury found them separately guilty, as to the part separately occupied by each of them, the plaintiff* was entitled to judgment against all the defendant* severally, accord- ing to the verdict. 300 OF THE COSTS. vors ;(<) but execution must not be taken out for more than the plaintiff has a right to recover. It seems, that if the defendants make a joint defence for the whole land demanded, and one of them die, execution may be given of the whole, because the whole interest comes by survivorship to the others, and therefore the plaintiff hath still persons before the court to defend the whole ; but that where each of the defendants makes a defence for part only, the plaintiff, upon the death of one of them, must not take out execution for the part in his possession, because they are in the nature of distinct defendants, and conse quently, as to that part which was defended by the person deceased, there is no person in court against whom judg- ment can be given, or execution taken out.(w) If an ejectment be brought against baron and feme, and the plaintiff have a verdict against both, but, before judg- ment, the husband dies, the plaintiff, on suggesting his death, may have judgment against the wife ; because (having been, found guilty of the trespass) she must have obtained the unlawful possession jointly with her husband, or have had the whole possession in her own right ; and in either case, the possession is wholly in her on the death of her hus- band.^) OF THE COSTS. When the action is undefended, and judgment is entered against the casual ejector, the, only remedy which the lessor of the plaintiff has for his costs, is an action for mesiie pro- (/) Far v. Denn, 1 Burr. 3C2. (r) Rigtey v. Lee, Cro. Jac. 356. (u) CUb. Eject. 98. Let v. Rowlccley, 1 Roll. 14. OF THE COSTS. 301 fits, in which, at the discretion of the jury, they are reco- verable as consequential damages. When the party interested appears and enters into the consent rule, and afterwards at the trial refuses to confess, he is liable, upon such consent rule, to the payment of costs, and an attachment may be issued against him if he refuse or neglect to pay them ;(a>) but no writ of fieri facias, or capias ad satisfacicndum, will in this case lie, because the judgment in the ejectment is against the casual ejcctor.(x) When there are several defendants, some of whom ap- pear at the trial and confess, but others do not appear, and a verdict is found against those who do appear, each defen- dant is liable for the whole costs, and the plaintiff's lessor may tax them all against any one or all of the defendants at the same time ; that is to say, upon the postea against those who appear, and upon the consent rule against those who do not appear ; and if after satisfaction from one defen- dant for the costs, he take out execution against another, the Court will interfere to prevent it. But it seems he can- not separate the costs, and tax part of them against one de- fendant, and part against anothcr.(y) If the lessor of the plaintiff die before the commission- day of the assizes, and the plaintiff be nonsuited by reason of the defendant's refusal to confess, the lessor's represen- tative cannot recover any costs ; because the consent rule is merely personal, and does not extend to the representa- tive :(z) but where the plaintiff's lessor died after the trial, the defendant was compelled by the Court to pay to his (/) Turner v. Barnaby, 1 Salk. (y) Tlinuiont, d. Wilton, v. Foot, 269 fi. N P. 336. S. C. Bam. HH. (.r) Goodright v. Vice, Barn. 182. (*) Thrutlout v. Bedwcll, 2 Wils. 7. 302 OF THE COSTS. representative the costs, which had been taxed by consent upon the consent rule. (a) When the tenant appears, and there is a verdict and judgment against him, execution may be taken out thereon for the costs, as in ordinary cases ; and the lessor olf the plaintiff may have a capias ad satisfaciendum, or a fieri fa- cias, for the costs, and an habere facias possessionem for the possession, separately, or in one writ at his pleasure.(i) When the judgment in ejectment is against a feme sole, who marries before execution, the plaintiff's lessor should sue out an habere facias possessionem in the maiden name of the defendant for the land, and then proceed by scire fa- cias against the husband and wife for the costs. (c) When the landlord is made defendant without the tenant, the judgment to recover the possession is against the casual ejector ; but, nevertheless, as there is a judgment in exis- tence against the landlord, execution may be taken out thereon for the costs. (c?) It may be collected from the case of Gulliver v. Drink- water,(e) that, independently of these remedies, the lessor may, in all cases, recover the amount of his taxed costs(y) in an action for mesne profits ; but that the Court will not interfere to assist him, if the jury do not include such cost* in their damages, when the lessor might have proceeded for them in a different manner. (a) Goodright v. Holton, Barn. 119. (c) Doe, d. Taggart, v. Butcher, 8 Post, 321. M. it S. 657. Appendix, No. 42. (b) Appendix, No. 36, 37, 38, 39, (;> v of the ca, $a. against the casual ejector, a rule will be granted to show cause why an attachment should not go against him, and that service of the rule at the defendant's house shall be- sufficient. Jackson v. Sliiet, 2 Caines' Rep. 368. [1] On application for attachment for costs, for not confessing lease, entry, and ouster, the affidavit must show an authority to demand them given 07 the lessor. Jackson v. Stilu, 3 Caines', 140. 504 OF THE COSTS. When there are several defendants and one or more of them is, or are, acquitted by the verdict, he, she, or they, will, by the provisions of statute 8 & 9 W. and M. c. 11. be entitled to costs, unless the judge shall certify in open court, that there was good cause for making such person or persons defendant or defendants, (i) When the lessor of the plaintiff is a peer, no attachment will be granted against his person ; but the Court will grant a rule to show cause, why an attachment, as to his goods and chattels, should not be issued, and, if necessary, will make that rule absolute.( j) If the lessor of the plaintiff die after issue joined and be- fore trial, or even after trial and before payment of costs, the defendant cannot recover his costs against the repre- sentative, the consent rule being, (as already mentioned,) merely personal ; and it seems immaterial, whether the de- fendant's claim arises from a verdict in his favor, or from, the plaintiff's being nonsuited upon the merits. (k) "' In a case where baron and feme were lessors in ejectment, and the baron died after entering into the rule, the feme was held liable to the payment of the costs ; because they were to be paid by the lessors of the plaintiff, and both of them were in the lease. (/) Where the lessor of the plaintiff was an infant, and his (j) The provisions of this statute (j) Thornby v. Fleeticood, Cos. Pr. seem scarcely applicable to the pre- C. P. 7. sent mode of conducting ejectments, (k) Thruxtoul v. Bedtrtll, 2 Wils. 7. for how can it be said, that he who Doe, d. Linlot, v. Ford, 2 Smith, 407. was made a defendant at his own re- (/) Morgan v. Slapely, 1 Keb. 827. quest, was made so without good cause ! OF THE EXECUTION. 305 lessee was nonsuited, and 50/. costs were given to the de- frndant, and the infant's father, who prosecuted the cuit. was dead, the Court made a rule, that the lessor should pay the costs ; yet, says the book, it was doubted in this case, because of his infancy; but if the father had been alive, the Court would have made him pay the costs, or, if he had left assets, his executor. The question was ad- journed. (m)[2] If the lessor of the plaintiff abandon the action after the appearance of the tenant, or landlord, and refuse to join in the consent rule, he is held not liable for the defendant's costs, upon the principle, that until he has put his signature to the rule, he has not consented to proceed against the new defendant.(n) If the lessor of the plaintiff sue in forma pauper! s, he will be dispaupered in case of vexatious delay ; but it does not seem, that the Court will also compel him to pay the de- fendant's costs. (o) When there are several defendants, the lessor of the plaintiff has his election to pay costs to which defendant h^ pleases.(/?) OF THE EXECUTION. When the lessor of the plaintiff prevails, he may enter (m) Jinon. 1 Frrem. 373. (o) Dee, d. Leppingwdl, T. Tnu- (n) Smith v. Barnardiston, W. Blk. sell, 6 East, 606. 904. (p) Jordan v. Harper, Stran. 616. [2] It i< too lato after trial to move that the infant lessors of the plaintiff file iecurity for costs. Jackion v. ButhntlL 13 Johns. 380. 39 306 OF THE EXECUTION. peaceably upon the premises recovered, without any writ of execution, l>v:uisr the land recovered is certain ;(y) but it is more prudent to sue out the regular writ, as the assistance of the sheriff may be necessary to preserve the peace. [3] The writ of execution in an ejectment is called the writ of habere facias possessionem, and answers to the habere. facias seisinam in real actions : for as in the one case, the freehold being recovered, the sheriff is ordered to g' n e the demandant seisin of the lands in question, so also in the other case, the possession being recovered, the sheriff is commanded to give execution of the possession. (r) When the landlord is admitted to defend the action, and the judgment is entered against the casual ejector, with a stay of execution until further order, the lessor, before he takes out execution, must move the Court for leave to do so ; and if he sue out a writ of possession without such motion, the execution will be set aside for irregularity.(s) The rule, however, for this purpose is absolute in the first instance. i/) If the lessor of the plaintiff be devested of his right of possession between the time when his demise is laid, and the time of issuing execution, it seems that the Court will prevent him from issuing a writof habere faciaspossessionem, or set one aside, if issued. (u) (q) Taylor, d. Atkins, v. Horde, (/) Ftnn, d. Rickaitson, v. Marriott, Burr. 60. 88. Anon. 2 Sid. 156.6. Bam. Ifcj. (r) Appendix, Nos. 36 to 40. (u) Doe, d. Morgan, v. Blurk, 3 () Goodright, d. Rowell, v Vice, Camp. 447. Barn 182. Appendix, No. 35. [3] After jiiilg-ment lessor may enter without n habere fac. pots., and it pro- tected from trespass between parties and privies, but he mu>t enter before the expiration of the demise. Jackton v. Haciland, 13 John*. 229. OF THE EXECUTION. 307 In other cases, the execution follows, of course, upon the judgment. The writ of possession is drawn up in general terms, commanding the sheriff to give to the plaintiff, " the pos- session of his term, of and in the premises recovered in the ejectment ;" but without any particular specification of the lands whereof he is to make execution ; and as the descrip- tion of the premises, in the demise in the declaration, is also too general to serve as a direction to the sheriff, it is the practice, for the lessor of the plaintiff, at his own peril, to point out to the sheriff the premises whereof he is to give him possession ; and if the lessor take more than he has recovered in the action, the courts will interfere in a sum- mary manner, and compel him to make restitution. (r) They will, also, if circumstances require, interfere be- fore the execution of the writ, and restrain the lessor from taking possession of more than he is entitled to. As, where the lessor had declared for lands held under two separate titles, and by a mistake of the judge upon the law of the case, the verdict was given for the plaintiff upon both titles, when it ought to have been entered for the defendant as to the lands comprised in one of them ; the Court, after argu- ment, granted a rule to confine the execution to those lands only, to which the lessor had a valid title.(t)[4] (r) Roe, A. Saul, v. Dmcson, 3 WiU. T. R. 1 18, in notii. F.I vide Brooke, d 49. Jbile, 21. Mence, \. Baldwin, Barn. 468. (u-) Doe, d. Forsler, v. Wandlass, ^ [4] Where the jury ijires a general verdict for the plaintiff in ejectment, but he shows title to only a moiety of tlie promises, the Court will order hiiu to take possession of thr> moJetv onlr. Jcflnon v. I'an Rnrgen, 1 Johns. Cas 101. OF THE EXECUTION. The sheriff, it seems, previously to the execution of thr writ, may demand an indemnity from the plaintiff ;(x) and wlien he has to deliver possession of any particular num- ber of acres, he must estimate them according to the cus- tom of the country in which the lauds are situated. (y) The possession to be given by the sheriff, is a full and actual possession, and he is armed with all power neces- sary to this end. Thus, if the recovery be of a house, and he he denied entrance, he may justify breaking open the door, for the writ cannot otherwise be executed, (z If the lessor recover several messuages in the posses- sion of different persons, the sheriff must go to each of the several houses, and severally deliver possession thereof, (which is done by turning out the tenants ;) for the delivery of the possession of one messuage, in the name of all, is not a good execution of the writ ; since the possession of one tenant is not the possession of the olher.(a) But when the several messuages are in the possession of one tenant only, it is sufficient if he give possession of one messuage in the. name of all. (6) When the recovery is of land, the same distinction seems to prevail ; that is to say, if there be only one tenant, a de- livery of any part, in the name of the whole, will be suffi- cient ; but if there be more than one, a separate delivery of the lands in the possession of each tenant respectively must be made. (a) If the officers be disturbed in the execution of the writ, (i) Gilh. Eject. 1 10. (a) I Roll. Ab. 886. H. 2. (.V) Roll. Ah. 8841 H. 4. (b) Floyd v. Betfiill, 1 Roll. Rep. () Semayiic's case, 5 Co. 91 . (6.) 420. OF THE EXECUTION. 309 the Court will, on affidavit of the circumstances, grant an attachment against the party, whether he he the defendant, or a stranger :(r and the writ is not understood to he com- pletely executed, until the sherilFand his officers are gone, and the plaintiff is left in quiet possession. In an old case where the sheriff returned, that in the execution of the writ, he, removed all the persons, whom upon diligent search he could find on the premises, and gave peaceahlc possession to the plaintiff, and that, imme- diately after he was gone, three men, who were secretly lodged in the house, expelled the plaintiff, upon notice of which he returned to the house to put the plaintiff in full possession, but met with such resistance that he could not do it, but at the peril of his life ; the Court held, that the same was no execution, and awarded a new Wjit.(rf) In the old authorities we find it laid down, that if the lessor, after having had possession given to him by the sheriff, and before the writ of possession has been returned and filed, be again ousted by the defendant, he shall have a new writ of possession, or an attachment ; but that if he be ousted by a M ranger, he shall be driven to another ejectment ; and the reason assigned for this distinction is, that in the one case the defendant shall never, by his own act, keep the posses- sion which the plaintiff has recovered from him by due course of law, and in the other that, as the title was i tried between the plaintiff and the stranger, he may claim the land under a title paramount to that of the plaintiff, and therefore the recovery and execution in the former action oii^ht not to hinder the stranger from keeping that posses- sion to which he may have a right. It is also said, that the () Kingsrialc v. .Vc/in, 6 Mod. 27 v'rf.) Upton v. Wclli, 1 L*>n. 9. C. Salk:321. 310 OF THE EXECUTION. return of the writ of the execution is so much in the power of the plaintiff, that the Court will not, at the instance of the defendant, direct it to be returned ; for the return is left to the discretion of the plaintiff, that he may do what is most for his own advantage, in order to have the benefit of his judgment ; the best way to effect which is, to permit him to renew the execution at his pleasure, until full execution be obtained. (e) All these cases, however, seem to be overruled by a re- cent decision of the Court of Common Pleas. The lessor of the plaintiff had been put into possession by virtue of a writ of habere facias possessioncm, on the 22d day of Fe- bruary, 1 806, which writ had never been returned by the sheriff; and on the 10th day of October, 1807, whilst he continued in possession, the person, against whom he had recovered the premises, entered into the house by force, and resisted with violence all attempts to regain the pos- session. Upon these grounds, a new writ of habere facias was moved for, and the case of Radcliff v. Tate,(f) was cited : but " the Court denied the authority of that case, and held, that possession having been given under the first writ, the sheriff ought to have returned, ' that he had given possession,' and that the plaintiff could not afterwards have had another writ : an alias cannot issue after a writ is exe- cuted. If it could, the plaintiff, by omitting to call on the sheriff to make his return to the writ, might retain the right of suing out a new habere facias possessionem, as a remedy for any trespass which the same tenant might commit with- (e) Rex v. Harris, Ld Rayra. 482. v. Tatcnor, 1 Roll. R>p. 353. Dm. JIulintiu: v. Fulgam, Palm. 289. vies, d. Porey, v. Doe, W. Blk. 892. Raldijf v. Tote, 1 Keb. 776. Lore- Anon. 2 Brown, 263. Kingtdale v. less v. Ratcliff, 1 Keb. 7O>. Dece- Mann, 6 Mod. 27. S. C. Salk. 321. reux T. Underbill, 2 Keb. 245. For- Goodrighi v. Hart, Stran. 321. tune T. Johnson, Styl. 318. Piermn (/) 1 Keb. 779. OF THE EXECUTION. 311 in twenty years next after the date of the judgment ;"(#) and the rule was refused. If the lessor neglect to sue out his writ of possession for a year and a day after judgment, he must revive the judg- ment by scire facias, as in other cases ; and when the judg- ment is against the casual ejector, the tcr-tenant must be joined in the writ.(A) When a sole defendant in ejectment dies after judgment, and before execution, it has been doubted whether a scire facias is necessary, because the execution is of the land only, and no new person is charged ;(i) but the surer me- thod is, notwithstanding, to sue out a scire facias. And as a scire facias for the land must issue against the ter-tenant, whoever he may be, it will be also necessary to sue out an- other scire facias for the costs against the personal repre- sentative, unless he be himself the ter-tenant.(y) When the judgment in ejectment is against a feme sole, who marries before execution, the plaintiff's lessor should sue out an habere facias possessionem in the maiden name of the defendant for the land, and then proceed by scire facias against the husband and wife for the costs. (j) If the lessor of the plaintiff die after the teste of the writ, but before it is actually sued out, it is not necessary to re- vive the judgment by scire facias ; and as he is not a party on the record, it seems no scire facias would be necessary, (?) Doe v. Roe, 1 Taunt. 65. tor v. Johnson, 2 Salk. 600. S. C. Li! (//) Willier* v Harris, Lord Kay in. Raym. <*>y. 806. Appendix, No. 4:2 (j) Doe, d. Taggart, T. Butcher, (i) Per Holt, C,. J. Wilhm v. /for- 3 M. & S. 667 rii, LA Raym. 806. Std vide Proc- 312 OF THE WRIT OF ERROR. if he died before the tcsle of the haberc facias possessionem, although the case of JDo, d. Beyer v. Roejjc) has certainly left this point somewhat doubtful. [5] OF THE WRIT OF ERROR. A writ of error in ejectment cannot he brought in the name of the casual ejector,(/) and consequently it will not lie until after verdict ; for, before appearance, the casual ejector is the only defendant in the suit, and, after appear- ance, the new defendant is bound by the terms of the con- sent rule to plead the general issue. (m) If al^o the defen- dant refuse at the trial to confess, &c. he will be precluded from bringing error, because the plaintiff will then be non- suited as to him, and the judgment will be entered against the casual ejector, (w) When indeed the landlord defends alone, and the ver- dict is found against him, error may be brought, notwith- standing that the judgment, upon which the execution i~- (k) Burr. 1970. course limited to the modern practice. (/) Roe, d. Humphreys, v. Doe, Ante, chap. VI. Barn. 181. This principle is of (m) Ante, 232. [5] If the defendant alleges that the lessor has taken possession of more land than was recovered by the verdict, a writ of restitution will be ordered ; but if lessor deny the allegation, he will be allowed a feigned issue to try the fact. Jackson v. Hasbrouck, 5 Johns. 366. 5 Burr. 2673. On setting aside default against casual ejector, and a writ of possession thereon, the Court will, on payment of costs, order a writ of restitution Jack- son v. Stiles, 1 Caines' Rep. 603. No tenant, who was in possession anterior to the commencement of an ejectment, can be dispossessed upon a judgment and writ of possession, to which he is not party. Ex parte Reynolds, 1 Caines' Rep. 600. And if a tenant, whose possession is distinct from that for which the action was brought, be turned out, he may hare a writ of restitution. Ibid. OF THE WRIT OF ERROR. 318 sues, is entered against the casual ejector ;(m) for a judg- ment is also in existence against the landlord, and upon that judgment the writ of error may be taken out in the landlord's name. To enable him, however, to proceed with the writ of error, he must show the error brought, as cause against the plaintiff's rule for taking out execution against the casual ejector ;(n) and if he omit to do this, and suffer a regular execution to take place, the Court will not, on a subsequent motion, order the execution to be set aside. (o) By statutes 16 and 17 Car. II. c. 8. s. 3 and 4. it is enacted, that no execution shall be staid by writ of error, upon any judgment after verdict in ejectment, unless the plaintiff in error shall become bound in a reasonable sum to pay the plaintiff in ejectment all such costs, damages, and sums of money, as shall be awarded to such plaintiff, upon judgment being affirmed, or on a nonsuit, or discon- tinuance had ; and, in case of affirmance, discontinuance, or nonsuit, the Court may issue a writ to inquire, as well of the mesne profits, as of the damages by any waste com- mitted after the first judgment ; and are upon the return thereof to give judgment, and award execution for the same, and also for costs of suit.[6] The words of this statute seem to render it necessary for the plaintiff in error to be personally bound ; but by a reasonable construction, it is held sufficient, if he procure (m) Anlc, 234. (o) George, d. Bradley, v. Wisdom, (n) Ante, 3l5. Burr. 766. [6] The statute of New- York (1 Rev. Laws, 143.) is similar in its provisions to this. The statute ;il.s<> provides, that no writ of error shall issue to remove a judgment out of the Supreme Court, without the certificate of a counsellor in said court, that in his opinion there is error in substance ua the proceedings. 40 314 OF THE WRIT OF ERROR. proper sureties to enter into the recognisance of bail, for otherwise lessors residing in distant counties would sustain great inconvenience, and an infant lessor, or a lessor be- coming a. feme covert after action brought, would be entire- ly excluded from the benefit of the act.(p) But, although the sureties may be examined as to their sufficiency, the plaintiff in error cannot, and, therefore, where the lessor of the plaintiff swore, that the defendant was insolvent, and also that he (the lessor) had a mortgage upon the land for more than it was worth, the Court still held, that the de- fendant's recognisance was sufficient to entitle him to hie writ of error. (9) The reasonable sum, in which the plaintiff in error is bound under this statute, is generally double the improved rent of the premises in dispute, and the single costs of the ejectment.(<7) The writ of error does not operate as a stay of execu- tion until bail is put in, which cannot be done until the plaintiffs lessor has taxed his costs, for until costs are taxed, the amount of the penalty of the recognisance of the bail in error cannot be fixed ; and if the lessor choose to waive his taxation of costs, and proceed for his posses- sion only, the Court will not interfere to prevent him, not- withstanding the allowance of the writ of error.(r) In the case of Wharod v. Smart ,(s) the defendant brought a writ of error in parliament, and the Court compelled him (p) Barnes v. Bulmcr, Carth. 121. Keenc, d. Lord Byron, v. Deardon, Lushinglon v. Dose, T Mod. 304. 8 East, 298. Keene, d. Lord Byron, v. Duirdon, 8 (r) Doe, d. Mcuiter, v. Dinely, 4 East, 298. Taunt. 289. (q) Tliomas r. Goodlitle, Burr. 2601. (*)-Burr. 1823. OF BRINGING A SECOND EJECTMENT. 315 to enter into a rule " not to commit waste or destruction during the pendency of the writ of error." When the plaintiff's lessor proceeds against the bail by action on the recognisance, they are not chargeable with the mesne profits under stat. 16 and 17 Car. II. c. 1. s. 4., unless their amount has been first ascertained by writ of inquiry pursuant to the provisions therein contained.(f) After a recovery in ejectment, the lessor of the plaintiff may peaceably enter, pending a writ of error, if he find the premises vacant ; but he cannot enter by force, nor take out a writ of execution. (u) OF BRINGING A SECOND EJECTMENT. We have now traced the proceedings in this action, from the commencement to the conclusion ; and it only remains to add a few remarks respecting the bringing of a new, or second ejectment. It has already been observed, that a judgment in eject- ment confers no title upon the party in whose favour it is given ; and that it is not evidence in a subsequent action, even between the same parties. (r) From these circum- stances it is manifest, that the judgment can never be final : and that it is always in the power of the party failing, whe- ther claimant or defendant, to bring a new action. The structure of the record also renders it impossible to plead a former recovery in bar of a second ejectment : for the plaintiff in the suit is only a fictitious person, and as the (/) Dot r. Reynolds, 1 M. &. S. 247. Recog. in WHhtrt v. Harrit, Ld. (u) Badger v. Floyd, 12 Mod. 398. Raym, 806. 8. (r) Jinie, 192. 316 ACTION OF EJECTMENT. demise, term, &c. may be laid many different ways, it never can be made appear that the second ejectment is brought upon the same title as the first. It is said by Mr. Sergeant SC//OH, in his Practice of the Courts,(a>) " that it has sometimes been attempted in Chancery, after three or four ejectments, by a bill of peace. to establish the prevailing party's title ; yet it hath always been denied, for every termor may have an ejectment, and every ejectment supposes a new demise, and the costs in ejectment are a recompense for the trouble and expense to which the possessor is put. But that where the suit begins in Chancery, for relief touching pretended incumbrances on the title of lands, and the Court has ordered the defend- ant to pursue an ejectment at law, there, after one or two ejectments tried, and the right settled to the satisfaction of the Court, the Court hath ordered a perpetual injunction against the defendant, because there the suit is first at- tached in that court, and never began at law ; and such precedent incumbrances appearing to be fraudulent, and inequitable against the possession, it is within the compass of the Court to relieve against it." It should seem, how- ever, from the cases of Barefoot v. Fry.(x) and Leighton v. Leighton,(y) that courts of equity will sometimes interfere, and grant perpetual injunctions, when the ejectments have been commenced in the usual way at the common law. And in one case, where upon a most vexatious prosecution of ejectments, the Court of Chancery refused to grant a perpetual injunction, upon an appeal to the House of Lords, the injunction was allowed. (z) (w) 2 Sell. Prac. 144. (z) Earl of Bath v. Shenein, Bra. (x) Bunb. 158. Cas. Parl. 270. (y) 1 P. Wins. 671. 317 CHAPTER XII. OF STAYING THE PROCEEDINGS IN THE ACTION OF EJECTMENT. THE discretionary power exercised by the Courts in the regulation of ejectments, is frequently called forth by ap- plications from the defendant, to stay the proceedings in the action ; and a separate consideration of the cases in which these applications have been granted, seems prefer- able to intermixing them with the detail of the regular practice. When the ejectment is brought on the forfeiture of a lease, the proceedings will be staid upon the application of the tenant, until the lessor of the plaintiff has delivered par- ticulars of the breaches of covenant, on which he intends to rely ; and a summons for this purpose will be granted be- fore the tenant has appeared to the action, or entered into the consent rule. When ) The rule will also be granted, whether the merits be decided in the former action, or whether a judgment of nonsuit, or of non-pros, be given; nor is the length of time which elapses between the two actions any bar to the rule ; for many good reasons may exist for such delay, as the poverty of the other party, or a wish to end the controversy.^) (m) Doe, d. Hamilton, v. Hatherly, (o) Roberts v. Cook, 4 Mod. 379. Stran. 1152. Thrustoul, d. Williams, (p) Thrustoul, d. Williams, v. Hold- er. Holdfast, 6 T. R. 223. Keene, d. fast, 6T. R. 223. Angel, v. Angel, 6 T. R. 740. Doe, d. (q) Dence v. Doble, Comb 110. Feldon, v. Roe, 8 T. R. 645. Keene, d. Angel, v. Angd, 6 T. R. 740. (M) Doe, d. Chadwick, v. Law, W. Anon. Satk. 255. Blk. 1180. OF STAYING PROCEEDINGS. 321 The Courts will likewise stay the proceedings in a se- cond ejectment until the costs of a former one be paid, if the conduct of the party, against whom the application is made, lias been vexatious or oppressive, although he is not liable to the costs of the first action. Thus, where the les- sor of the plaintiff in the second action was also the lessor in the first, and had refused, after the appearance of the de- fendant in such first action, to enter into the consent rule, whereby, although nonsuited for want of a replication, he was exempted from the costs of the defendant's appearance, the Court would not let him proceed in the second eject- ment until he had satisfied the defendant for the expenses of such first appearance. (r) And, upon the same prin- ciple, where the first ejectment was on the demise of the husband and wife, but the husband alone entered into the consent rule, and judgment was given therein in the Com- mon Pleas for the defendant, (which judgment was after- wards affirmed in the King's Bench and the House of Lords,) and after the death of the husband, the wife brought a se- cond ejectment on her own demise ; the Court would not suffer her to proceed until the costs of the first ejectment were paid, saying, " We are not going to compel the les- sor to pay the costs, but only to prevent her being vexa- tious."^) It was once, indeed, holden, that the proceedings in a second ejectment ought not in any case to be staid for non- payment of the costs in the first action, if costs were not of right payable to the party applying ;(/) and that it was in nil cases necessary to show, that the party against whom (r) Smith, d. Ginger, v. Barnardit- (1) Thmsloiit, ort of this case, that the other mort- (m) JltUc, 156, &c. Append. No. 47. gaged premises were included in the CHAPTER XIII. OK THE ACTION FOR MESNE PROFIT? WHILST the action of ejectment remained in its origi- nal state, and the ancient practice prevailed, the measure of the damages given by the jury, when the plaintiff re- covered his term, were the profits of the land accruing dur- ing the tortious holding of the defendant. But upon the introduction of the modern system, an alteration took place in this particular ; and as the proceedings are now alto- gether fictitious, the damages assessed are only nominal, and do not include the real injury sustained by the claimant from the loss of his possession. When, therefore, this al- teration took place, it became necessary to give another remedy to the lessor for these damages ; and this was ef- fected by a new application of the common action of tres- pass m et armis, generally termed an action for me sne pro- Jits :(n) in which action, the plaintiff complains of his ejec- tion and loss of possession, states the time during which the defendant (the real tenant) held the lands and took the rents and profits, and prays judgment for the damages which he has thereby sustained. It has been said, that a lessor in ejectment may, if hr (n)Rer. E.L. 4vol. 169. OF THE ACTION FOR MESNE PROFITS. 329 please, waive the trespass, and recover the mesne profits in an action for use and occupation ;(o) but this election must be limited to the profits accruing antecedently to the time of the demise in the ejectment ; for the action for use and occupation is founded on contract, the action of eject- ment upon wrong, and they are, therefore, wholly incon- sistent with each other when applied to the same period of time; since in the one action the plaintiff* treats the defen- dant as a tenant, and in the other as a trespasser. (p) When, however, a tenant holds over after the expiration of the landlord's notice to quit, the landlord, after a recovery in ejectment, may waive his action for mesne profits, and maintain debt upon the 4 Geo. II. c. 28. against the tenant, for double the yearly value of the premises during the time the tenant so holds over: for the double value is given by way of penalty, and not as rent.(^) The action for mesne profits may be brought pending a writ of error in ejectment, and the plaintiff may proceed to ascertain his damages, and to sign his judgment ; but th Court will stay execution until the writ of error is deter- mined. (r) The action is bailable or not, at the discretion of the court, or judge, and when an order for bail is made, the recognisance is usually taken in two years value of the pre- mises, but this is also discretionary.^) (o) GooHlitle T. Worth, Doug. 584. debt upon the 11 Geo. II. c. 19 for Doe, d. Cheney, v. Batten, Cowp 2-43. double rent, but it seeing the better (p) Birch v. Wright, \ T R. 378. opinion that he is not. Ante, 143. (q) Timming* v. Ruwliion, Burr. (r) Harris v. Allen, Cas Prac. C. 1603 It is not jet settled whether, P. 46. Donford v. //, 12 Mod. 138. \> hen tho ejectment is founded upon () Hunt v. IJinl. *. fPM, 7 T. R. 1 12. 466. et MS 43 OF THE ACTION brought to recover the rents and profits of the estate, but may give such extra damages as they may think the parti- cular circumstances of the case may demand. (t) When the judgment in the ejectment is against the casual ejector for want of an appearance, the coats of the ejectment are gene- rally included in the damages ; and, indeed, the lessor of the plaintiff has no other remedy in that case for them. When also the ejectment is regularly defended, the taxed costs may, it seems, be recovered with the mesne profits as damages. (w) But this mode of recovering taxed costs is seldom resorted to ; and where after a recovery in ejectment, and before an action for mesne profits, the defendant became bank- rupt, and the lessor inserted the taxed costs of the eject- ment as damages in his action for mesne profits, but the jury did not include them in their verdict in executing a writ of inquiry therein, the Court refused to set aside the inquisition ; because the costs being a liquidated debt, the plaintiff might have proved them under the defendant's commission of bankruptcy, and as he had chosen to take the chance of recovering in an oblique way more than he could have recovered in a direct manner, and had failed, the Court did not think it necessary to assist him.(r) If the plaintiff in an action for mesne profits recover les* than forty shillings, and the judge do not certify that the title came in question, the plaintiff is entitled to no more costs than damages ; and this is the case whether the action is brought in the name of the lessor of the plaintiff in the ejectment, or in that of his nominal lessce.(ze) (/) Goodlitlt Y. Tombs, 3 Wils. 118. (r) Gulliver v. Drinkwater, 2 T. R ai. 261. (u) Dot T. Davit, 1 Esp. 308. (ID) Doe v. Davit, 6 T.R. 593. 9. C. 1 Esp. 358. FOR MESNE PROFITS. 339 If in an ejectment there be a verdict for the plaintiff, and the defendant bring a writ of error, and enter into a recog- nisance to pay costs in case of nonsuit, &c. pursuant to stat. 16 & 17 Car. II. c. 8. and he be nonsuited, &c. the defendant in error needs not bring a scire facias or debt on the recognisance, but may sue out an elegit, or writ of in- quiry, to recover the mesne profits since the first judgment in ejectment.( a:) (:c) Short v. Heath, 2 Cromp. Prac. 226. 341 No. 1. Notice to C,_ OIK, quit by thr I hereby give you notice to quit and deliver up, a on the day of next, the yeart< possession of the messuage or dwelling house, (or " rooms and apartments," or " farm lands and premises,") with the appurtenances, which yon now hold of me, situate in the parish of in the county of Dated the day of 18 Your's, &c. A. B. To Mr. C. D. (the tenant in possession :) or (if it be doubtful who is tenant) To Mr. C, D., or whom else it may concern. No. 2. SlR, The like by an agent for 1 do hereby, as the agent for and on behalf o f thelandlord< your landlord A. B., of give you notice to quit and deliver up, on (&c.) (as in No. I.) which you now hold of the said A. B n situate, (&c.) Dated, (&c.) Your's, &c. E. F. Agent for the said A. B. To Mr. C. D. (&c.) APPENDIX. No. 3. SlR > ' hereby give you notice, &c. (as in No. 1. to * ne d ate ) provided your tenancy originally com- m enced at that time of the year ; or, otherwise, that you quit and deliver up the possession of the said messuage, (&c.) at the end of the year of your tenancy, which shall expire next after the end of half a year from the time of your being served with this notice. Dated, (&c.) Your's, &c. To Mr. C. D. (&c.) A. B. No. 4. The like, by SlR, a tenant from _ , - - year to year, 1 hereby give you notice of my intention to of his inten- . f J tiontoqmu quit, and that I shall on the day of next, quit and deliver up the pos- session of the messuage, (&c.) which I now hold of you, situate, (&c.) Dated, (&c.) Your's, &c. To Mr. A. B. C. D. No. 5. Letter of at- Know all men by these presents, that I, A. B., torney, to i enter and o f have made, ordained, constituted, seal a lease miKs pre ~ an< * a PP om ted, and by these presents do make, ordain, constitute, and appoint, C. D., of my true and lawful attorney, for me, and in my name, to enter into and take possession of a cer- tain messuage, (&c.) late in the tenure and occu- pation of situate, (&c.) but now 1 1 11 ten untcd ; and after the said C. D. hath taken APPENDIX. 343 possession thereof; for me, and in my name, and as my act and deed, to sign, seal, and execute, a lease of the said premises with the appurtenances, unto E. F. of to hold the same to him, the said E. F., his executors, administrators, and assigns, from the of last past, before the date hereof, for the term of years, at the yearly rent of a pepper- corn, if lawfully demanded : subject to a proviso, for making void the same, on tendering the sum of sixpence to the said E. F., his executors or ad- ministrators. In witness, (&c.) Sealed and delivered, (&c.) No. 6. I. K. of gentleman, maketh oath Affidavit ot and saith, that he was present, and did see A. B. the^m? of named in the letter of attorney hereunto annexed, duly sign, seal and deliver, the said letter of attorney. Sworn, (&c.) I. K. No. 7. This indenture, made the day of ' (&c.) between A. B. of of the one part, and E. F. of of the other part, witnesseth, that the said A. B. for and in consideration of the sum of five shillings of lawful money- of Great Britain, to him in hand paid by the said E. F. at, or before the sealing and delivery of these presents, the receipt where- of the said A. B. doth hereby acknowledge, hath demised, granted, and to farm let, unto the said E, F., his executors and administrators, all that 344 APPENDIX. messuage, (&c) situate, (&c.) late in the tenure and occupation of but now untenantcd ; to have and to hold the same unto the said E. F., his executors and administrators, from the day of last past, before the date hereof, for, and during, and unto the full end and term of years from thence next ensuing, and fully to be com- plete and ended : yielding and paying therefor yearly and every year, during the said term, unto the said A. B. or his assigns, the rent of one pep- per corn, if lawfully demanded at the feast of Provided always, and these present* are on this condition, that if the said A. B. or his assigns shall, at any time or times hereafter, ten- der, or cause to be tendered unto the said E. F. his executors or administrators, the sum of sixpence, that then and in such case, and from thenceforth, this present indenture, and every thing herein con- tained, shall cease, determine, and be absolutely void, any thing herein contained to the contrary thereof in any wise notwithstanding. In witness whereof, the parties here have interchangeably set their hand and seals, the day and year first above written. Sealed and delivered, as the act and"" deed of the above named A. B. by C. D. of by virtue of a letter of attorney to him for that purpose made, / * * by the said A. B. bearing date, (&c.) being first duly stamped in the pre- sence of I. K. . No. 8. Notice to p. Take notice, that unless you appear in his Ma- p.car, fee. jesty's Court of King's Bench at Westminster, APPENDIX. 3-15 within the first four days (or, if in the country, within the first eight days) of next term, at the suit of the above named plaintiff, E. F., and plead to this declaration in ejectment, judgment will be thereon entered against you by default. Yours, &c. To Mr. G. H. J. K. plaintiff's attorney. No. 9. In the King's Bench. %Sh," P . < E. F. on the demise of A. B. plaintiff, tt"" to etween JandG. H. - - - defendant. I. K. of gentleman, maketh oath, and saith, that on the day of last, he, this deponent, did see C. D. in the letter of attorney hereto annexed named, for, and in the name of A. B., the lessor of the plaintiff, enter upon, and take possession of the messuage in the lease hereto also annexed men- tioned, by entering on the threshold of the outer door thereof; and putting his finger into the key- hole of the said door, the said messuage being then locked up and uninhabited, so that no other entry thereon could be made, nor any possession thereof taken, without force ; and this deponent further saith, that he did, on the same day, see the above named C. D. after such entry made, and whilst he stood on the threshold of the said door, duly sign and seal the lease hereunto an- nexed, in the name of the said A. B. and as his act and deed deliver the same unto the said E. F. the plaintiff above named ; and that after the said lease was so executed, this deponent did see the said E. F. take possession of the said messuage, by virtue of the said lease, by entering upon the 44 APPENDIX. threshold of the said outer door, and putting his finger into the key-hole of the said door, the said messuage being then locked up and uninhabited, so that no other entry could be made thereon, save as aforesaid ; and that immediately after- wards, the said G. H. the defendant, came and re- moved the said E. F. from the said door, and put his foot on the threshold thereof; whereupon this deponent did, on the day and year aforesaid, de- liver to the said defendant, G. H., who still con- tinued upon the said threshold, a true copy of the declaration of ejectment, and notice thereunder written, hereto annexed. Sworn, (&c.) No. 10. George the Third, (&c.) to the sheriff' of greeting : If John Doe shall give you security of prosecuting his claim, then put by gages and safe pledges, Richard Roe, late of yeoman, that he be before us on wheresoever we shall then be in England, (or in C. P. " that he be before our jus- tices at Westminster, on ") to show wherefore, with force and arms, he entered into messuages (&c.)-with the appurtenances, in which A. B. hath demised to the said John Doe, for a term which is not yet expired, and ejected him from his said farm ; and other wrongs to the said John Doe there did, to the great damage of the said John Doc, and against our peace : And have you there the names of the pledges, and this writ. Witness ourself at Westminster, the day of in the year of our reign. APPENDIX. 347 No, 11. } TOHV Dritf SheriflTg re- Pledges to prosecute ' tur "> e '- ) RICHARD FEN, The within named Richard ) JOHN SMITH, Roe is attached by pledges. ) WILLIAM STILES. No. 12. In the King's Bench, (or Common Pleas,) E^A* term, in the year (if*3? the reign of King George the Third, (to wit) Richard Roc, late of yeoman, was attached to answer John Doe of a plea, wherefore the said Richard Roe, with force and arms, c. entered into messuages, barns, stablca, outhouses, yards, gardens, orchards, acres of arable land, acres of meadow land, and acres of pasture land, with the appurtenances, situate, &c. which A. B. had demised to the said John Doe, for a term which is not yet expired, and ejected him from his said farm ; and other wrongs to the said John Doe there did, to the great damage of the said John Doe, and against the peace of our lord the now king, (&c.) And thereupon the said John Doe, by his attorney, com- plains ; that whereas the said A. B. on, &c. at, &c. had demised the said tenements with the appur- tenances, to the said John Doe, to have and to hold the same to the said John Doe and his as- signs, from the day of then last past, for and during, and unto the full end and term of years from thence 348 APPENDIX. next ensuing, and fully to be complete and ended : By virtue of which said demise, the said John Doe entered into the said tenements with the ap- purtenances, and became, and was thereof pos- sessed, for the said term so to him thereof granted : And the said John Doe being so thereof possessed, the said Richard Roe afterwards, to wit, on, &c. with force and arms, &c. entered into the said tenements with the appurtenances, which the said A. B. had demised to the said John Doc, in man- ner, and for the term aforesaid, which is not yet expired, and ejected the said John Doe from his said farm ; and other wrongs to the said John Doe then and there did, to the great damage of the said John Doe, and against the peace of our said lord the now king ; wherefore the said John Doe saith, that he is injured, and hath sustained da- mage to the value of and therefore he brings his suit, &c. No. 13. Koticetoap- Mr. C. D. pew- . f I am informed that you are in pessession of, or claim title to, the premises in this declaration of ejectment mentioned, or some part thereof: and I, being sued in this action as a casual ejector only, and having no claim or title to the same, do advise you to appear in next term, (or, in London or Middlesex, " on the first day of next term,") in his Majesty's Court of King's Bench, wheresoever his said Majesty shall then be in England, (or, in the Common Pleas, " in his Majesty's Court of Common Bench at Westminster,") by some attorney of that court ; and then and there, by rule of the same court, to cause yourself fo be made defendant in my stead ; APPENDIX. 349 otherwise I shall suffer judgment therein to be en- tered against me by default, and you will be turn- ed out of possession, Your's, &c. Richard Roe. No. 14. Tin- like ou In the King's Bench, (or Common Pleas.) a double - APPENDIX. ally serve C. D., tenant in possession of the pre- mises in the declaration of ejectment hereunto annexed mentioned, or (if he be not tenant of the whole) some part thereof, with a true copy of the said declaration, and of the notice thereunder written, hereunto annexed, and this deponent, at the same time, read over the said notice to the paid C. D., and explained to him the intent and meaning of such service, t (or generally thus : and this deponent, at the same time, acquainted the said C. D. of the intent and meaning of the said declaration and notice.) Sworn, &c. I. K. i No. 17. wh"re k thcre (^ 8 m ' as * precedent to this mark *) personally u^amT 1 serve C. D., (&c.) tenants in possession, (&c.) (as in the last) with the said declaration, and the no- tice thereunder written, by delivering a true copy of the said declaration and notice to each of them the said C. D., &c. (and, if the notice was not di- rected to all the tenants, say " except that the said notice was directed to each of them the said C. D., &c. separately ;") and this deponent, at the same time, read over the said notice to each of them the said C. D., (&c.) and explained to them respec- tively the intent and meaning of such service ; (or generally, that " this deponent, at the same time, acquainted each of them the said C. D., &c. of the intent and meaning of the said declaration and notice.") Sworn, &c. I.K. APPENDIX. 353 No. 18. (As in No. 16, to *) personally serve C. D., te- Theiike. ' . . - f ., ~ . ., where (be nant in possession of part of the premises in the deruranoa . wiu served declaration of e ectment hereunto annexed men- one ten- . . ant, and the tioned, with a true copy, &c. (as in No. 16, tot :) wife of BT r J ' other. And this deponent further saith, that he did, on the same day, also serve G. H., tenant in posses- sion of other part (or residue) of the premises in the said declaration mentioned, with another true copy of the said declaration and notice thereunder written, by delivering the same to, and leaving it with M. II., the wife of the said G. H., at the dwelling house of the said G. H., being parcel of the premises in the said declaration mentioned, and this deponent, at the same time, read over the notice thereunder written to the said M. H., and explained to her the intent and meaning of such service. (Sworn, &c.) I. K. No 19. In the King's Bench, (<&rc.) Theiike,ou ' v ' stat 4. Geo. C John Doe on the demise of A. B., plaintiff, "h^eThf" Between < JD-UJT> jrji premises ar* ( and Richard Roe, defendant, umenante* A. B., of lessor of the plaintiff in this case, and 1. K., of gentle- man, severally make oath and say; and first, this deponent, I. K., for himself saith, that he did, on, &c. affix a copy of the declaration in ejectment hereunto annexed, and the notice thereunder writ- ten, upon the door of the messuage in the said de- claration mentioned, (or, in case the ejectment is not for the recovery of a messuage, " upon being a notorious place of lands, tene- 45 354 APPENDIX. ments, or hereditaments, comprised in the said de- claration in ejectment,") there being no tenant then in actual possession thereof. And this de- ponent, A. B., for himself saith, that before such copy of the said declaration in ejectment was so fixed, as aforesaid, there was due to him, this de- ponent, as landlord of such messuage, (or, " lands, tenements, or hereditaments,") with the appurte- nances, from C. D., the tenant thereof, the sum of for half a year's rent, upon and by virtue of a certain indenture of lease, bear- ing date, frc. and made between, &c. and that no sufficient distress was then to be found upon the said messuage, (or, " lands, tenements, or heredi- taments,") with the appurtenances, countervailing the arrears of rent then due to this deponent : And this deponent further suith, that at the time of affixing the copy of the said declaration in eject- ment, as aforesaid, he had power to re-enter the saW messuage, (or, " lands, tenements, and here- ditaments,") with the appurtenance's, by virtue of the said lense, for the nonpayment of the rent so in arrear, as aforesaid. Sworn, (&c.) A. B. I. K. No. 20. Rule for next after in the judgment for , the whole VCar OJ. &C. pre iiise* in Doe on the demise of A. B. ) Unless the tenant T. Roe, ---------^ in possession of (or, if the premises are un tenanted, " unless some person claiming title to,") the premises in ques- tion shall appear and plead to issue, on next after let judg- APPENDIX. 355 ment be entered for the plaintiff, against the now defendant Roe by default. Upon the motion of Mr. By the Court. No. 21. Doe on the demise of A. B. ) Unless C. D., te- J^nk*, fol v. Roe, --- ) nant in possession of part of the premises in question, shall appear and plead to issue, on next after let judgment be entered for the plaintiif, against the now defendant Roe, by default : But execu- tion shall issue for such part of the premises only as is in his possession. Upon the motion of Mr. By the Court. No. 22. Doe on the demise of A. B. > Unless C. D. C&c.) \ ' o. Roe, ) tenants in posses- sion of part of the premises in question, and un- J r \ led u ' u l { 1 less or some other person named * claiming title to such part of the said premises as are untenanted, shall appear and plead to issue, on next after let judgment be entered for the plaintiif, against the now defendant Roe, by default : But execution shall issue for such part of the premises only as is in the possession of the said tenants, and such ther parts as are untenanted. By the Court. 356 APPENDIX. No. 23. Jiidpmf nt for A B ,- f> f /%f tfrm in thf* tht'r'iintiff *o J^**- "1 ICJ III, 111 tilt. bvmliiiri: hy VCBT &C. JmL*i h * Witness, Edward Lord Ellcnborough. (to wit,) John Doe, on the demise of A. B. puts in his place 1. K. his attorney, against Richard Roe, in a plea of trespass and ejectment of farm. (to wit.) The said Richard Roe in person, at the suit of the said John Doe, in the plea aforesaid. (to wit.) Richard Roe was at- tached to answer John Doe, &C. (copy the declara- tion to the end, omitting the notice, and proceed on a new line as follows ;) And the said R. R. in his proper person, comes and defends the force and injury, when, &c. and says nothing in bar or preclusion of the said action of the said J. D. whereby the said J. D. remains therein undefended against the said R. R. : There- fore, it is considered, that the said J. D. recover against the said R. R. his said term yet to come, of and in the tenements aforesaid, with the appurte- nances; and also his damages sustained by reason of the trespass and ejectment aforesaid : And hereupon the said J. D. freely here in court re- mits to the said R. R. all such damages, costs, and charges, as might, or ought to be adjudged to him, the said J. D., by reason of the trespass and ejectment as aforesaid : therefore, let the said R. R. be acquitted of those damages, costs, and charges, &c. : And hereupon the said J/D. prays the writ of the said lord the king, to be directed to the sheriff of the county aforesaid, to cause him to have p08S( j ?sion of his said term yet to come, of APPENDIX. 357 and in the tenements aforesaid, with the appurte- nances ; and it is granted to him, returnable before the said lord the king, on wheresoever, fee. No. 24. -in the- -on, (or next after,) year, &c. (to wit.) Doe on the mise of A. B. against Roe, for messuages, (&c.) in the parish of in the said county : (or, if there be seve- ral demises, say} u Doe, on the demise of A. B. for messuages, (&c.) in the parish of in the said county, and, also, on the demise of E. F. for other messuages, (&c.) in the parish of It is ordered '> by the consent of the attor- nies for both parties, that C.D. be made defendant in the stead of the now de- fendant Roe, and do forth- with appear at the suit of the plaintiff; and (if the eject- ment be by bill) file common Consent of attornics, for I'M tenant to be admitted to defend, IUY in the said county, against Roe ;" and if the tenant appear for part only, add, " be- ing part of the premises mention- ed in the declaration." bail, and receive a declaration in an action of trespass and ejectment, for the premises in ques- tion, and forthwith plead thereto not guilty, and upon the trial of the issue,* confess lease, entry, and ouster, and insist upon the title only ; other- wise let judgment be entered for the plaint ill' against the now defendant Roe, by default : And if, upon the trial of the said issue, the said C. D. shall not confess lease, entry, and ouster, where- by the plaintiff uhall not be able further to prose- 368 APPENDIX. eute his writ (or " bill,") against the said C. D. then no costs shall be allowed for not further pro- secuting the same, but the said C. D. shall pay costs to the plaintiff, in that case to be taxed : And it is further ordered, that if, upon the trial of the said issue, a verdict shall be given for the said C. D. or it shall happen that the plaintiff shall not further prosecute his said writ (or " bill,") foranj other cause, than for nott confessing lease, entry, and ouster, then the lessor of the plaintiff shall pay to the said C. D. costs in that case to be ad- judged. I. K. attorney for the plaintiff, L. M. attorney for the defendant. No. 25. Consent Rule In the Common Pleas. itt C. P. term in the year &c. the day of (to wit.) Doe, on the de-~\ It is ordered mise of A. B. against Roe, for f by consent of messuages, &c. (as in the f I. K. attorney last precedent.) ) for the plain- tiff, and L. M. attorney for C. D., who claims title to the tenements in question, that the said C. D. shall be admitted defendant, and that the said C. D. shall immediately appear by his said attorney, who shall receive a declaration, and plead thereto the general issue, this term ; and that at the trial to be had thereon, the said C. D. shall appear in his proper person, or by his coun- sel or attorney, and confess lease, entry, and ous- APPENDIX. 369 ter for so much of the tenements specified in the plaintiff's declaration, as are in the possession of the said defendant or his tenant, or any person claiming by, or under his title ; or that, in default thereof, judgment shall be thereupon entered against the defendant, Richard Roe, the casual ejector : but proceedings shall be stayed against him, until default shall be made in any of the pre- mises. And, by the like consent, it is further or- dered, that if, by reason of any such default, the plaintiff shall happen to be nonsuited upon the trial, the said C. D. shall take no advantage there- of, but shall thereupon pay to the plaintiff costs, to be taxed by the prothonotaries. And it is further ordered, that the lessor of the plaintiff shall be liable to the payment of costs to the said C. D. by the Court here, to be in any manner allowed or adjudged. By the Court. No. 26. In the King's Bench. Affidavits C. D. of maketh oath, and saith, i ( . to au - tborlzf the te- that no actual ouster of the lessor of the plaintiff" "tcon- li * !ca-'nd has been committed by this deponent, and that '!j> ou| y '" (as he, this deponent, verily believes,) this eject- ment may involve a question between tenants in common, or joint-tenants. Sworn, (&c.) C. D. No. 27. Doe, on the demise of A. B. ) Upon readme the Rat? in K.B _ to authorize r. Koe - - -------V rule made yester- hc |enant |o . confeM Ira day, and upon hearing Mr. &c. for 360 APPENDIX. the lessor of the plaintiff, and Mr. &c. for the tenant ; it is ordered, that the defendant enter into a rule for confessing lease and entry, and also for confessing ouster of the nominal plain- tiff, incase an actual ouster of the plaintiff's lessor by the defendant shall be proved at the trial, but not otherwise. By the Court. No. 28. consent Rui Doe ") It is ordered, &c. (as in No. 24. to *) 'hercon. f v. > confess lease and entry, and also ouster Roe. ) of the nominal plaintiff, in case an actual ouster of the plaintiff's lessor by the defendant shall be proved at the trial, but not otherwise, and insist upon the title, and such actual ouster only; otherwise let judgment be entered for the plaintiff against the now defendant Roe, by default. And if, upon the trial of the said issue, the said C. D. shall not confess lease and entry, and also ouster, upon the condition aforesaid, whereby, &c. (a* m No. 24 to t ) con- fessing lease and entry, and also ouster subject to the conditions aforesaid, then the lessor of the plaintiff shall pay to the said C. D. costs in that case to be adjudged. By the court. No. 29. RuicinK.B. Doe, on the demise of A. B. ) It is ordered, that lor admitting I he 'J" T>. Roe \ E. F. landlord of (o defend, &c. * the tenant in possession of the premises in ques- tion in this cause, shall be joined and made de- fendant with the said tenant, if he shall appear : And the said . F. desiring, if the said tenant APPENDIX. 361 shall not appear, that he may appear by himself, and consenting that in such case he will enter into the common rule to confess lease, entry, and ouster, in such manner as the said tenant ought, in case he had appeared ; (or if the rule be special, to confess lease and entry only, say, " to confess lease and entry only, without ouster, unless an actual ouster of the lessor of the plaintiff, by the said C. D. or those claiming under him, be proved at the trial,") leave is given to the said E. F. pur- suant to the late act of Parliament, if the said tenant shall not appear, to appear by himself, and upon his entering into such Common Rule, to become defendant in the stead of the casual ejector, and to defend his title to the said premises without the said tenant: the plaintiff nevertheless is at liberty to sign judgment against the casual ejector ; but execution thereon is stayed, until the court shall further order. Upon the motion of Mr. By the court. No. 30. C. D. ^ term, (&c.) pica of m / guilty. ats. \ And the said C. D., Doe, on the demise of A. B. 3 by L. M., his attor- ney, comes and defends the force and injury, when, &c. and says that he is not guilty of the supposed trespass and ejectment, (or if several ousters are laid in the declaration, " of the sup- posed trespasses and ejectments,") above laid to his charge, in manner and form as the said John Doe hath above thereof complained against him ; And of this he, the said C. D., puts himself upon the country, &c. 46 362 APPENDIX. No. 81. And the said msn. a f g> f j^ his a ttor- Doe, on demise of A. B. ^ ney comes arid defends the force and injury, when, &c. and says, that all the tenements and premises in the declaration aforesaid specified, in which the trespass and ejectment are above supposed to have been done, are held of as of his manor of in the county of and which said manor is, and from time whereof the memory of man is not to. the contrary, was of an- cient demesne of the crown of the king of Eng- land, and now of our lord the king ; and that the aforesaid tenements and premises are, and for all the time aforesaid, were pleaded and pleadable in the court of the same manor by patent writ of our lord the king, of right close only, and not else- where or otherwise ; and this he is ready to verify as the Court shall think proper : Wherefore, he prays judgment, if the Court of our said lord the king, now here, will take cognisance of the said plea, &c. No. 32. Affidavit to c D. the tenant in possession of the premises accompany " in the declaration of ejectment in this cause above mentioned, maketh oath, and saith, that the said premises in the said declaration in this cause above mentioned, with the appurtenance, are held of as of his manor of in the county of and which said manor is holden in an- APPENDIX. 363 cient demesne : And this deponent further saith, that there is a Court of ancient demesne held within the said manor of and that there are suitors in the same Court, in which aid Court, and before which suitors the said A. B. the lessor of the plaintiff above named might have proceeded in the said ejectment ; and this depo- nent further saith, that to the best of this depo- nent's knowledge and belief, the said A. B., the said lessor of the plaintiff is seised in his demesne as of fee, of and in the said premises, with the ap- purtenances in the said declaration of ejectment mentioned. C. D. Sworn, &c. No. 33. Afterwards, that is to say, on, &c. at, &c., be- ?? tM i for J ' defendant on fore, (&c.) comes the within named John Doe, o S nf by his attorney within mentioned, and the within- ! named C. D. although solemnly required, comes not, but makes default ; therefore, let the jurors of the jury whereof mention is within made, be taken against him by his default ; and the jurors of that jury being summoned also to come, and to speak the truth of the matters within contained, being chosen, tried, and sworn, the said C. D., al- though solemnly called to appear by himself or his counsel or attorney, to confess lease, entry, and ouster, doth not come, by himself or his coun- sel or attorney, nor doth he confess lease, entry, and ouster, but therein makes default ; where- fore the said John Doe doth not further prose- cute his writ, (or bill,) against the said C. D. Therefore, (&c.) ingle rya ter. 364 APPENDIX. No. 34. fo U r d t f j*uin- (To the end of the issue, and then as follows :) of ff ihepre- art At which day, before our lord the king at West- Ibr'thede'i minster, comes, (or in the Common Pleas or Ex- tSStnt^* chequer, " At which day comes here,") the parties e aforesaid by their attornies aforesaid ; and here- upon the said C. D. as to parcel of the tenements in the said declaration mentioned, relinquishing his said plea by him above pleaded, says, that he cannot deny the action of the said John Doe, nor but that he, the said C. D. is guilty of the trespass and ejectment above laid to his charge, in manner and form as the said John Doe hath above thereof complained against him : And upon this the said John Doe says, that he will not further prosecute his suit against the said C. D. for the trespass and ejectment in the residue of the tenements aforesaid ; and he prays judgment, and his term yet to come, of and in the said with the appurtenances, parcel, &c. to- gether with his damages, costs, and charges, by him in this behalf sustained : Therefore, it is con- sidered, that the said John Doe do recover against the said C. D. his said term yet to come, of and in the said with the appur- tenances, parcel, (&c.) and also for his said damages, costs, and charges, by the Court of the said lord the king now here adjudged to the said John Doe, and with his assent, and also with the assent of the said C. D. : And let the said C. D. be acquitted of the said trespass and ejectment in the residue of the tenements aforesaid, and go thereof without day, (&c.) : And the said John Doe prays the writ of our said lord the king, to be directed to the sheriff of APPENDIX. 365 aforesaid, to cause him to have possession of his said term yet to come of, and in the said with the appurtenances, parcel, (&c.) and it is granted to him, returnable before our said lord the king on wheresoever, (&c.) (or in the Common Pleas or Exchequer, " return- able here on &c.") No. 35. Doe on the demise of A. B. ) Upon reading a rule Rule for ee- \ cution a- T. Roe, ) made in this cause ^"ejectoT" on and E. F., therein ulldtorlniad named, having made himself defendant in the I^fem'unl stead of the casual ejector, pursuant to the said the tail? rule, and the postea in the said cause being pro- duced and read, and a rule made in the same cause this day ; it is ordered, that the said E. F., upon notice of this rule to be given to his attor- ney, (&c.) show cause, why the plaintiff should not have leave to sue out execution, upon the judgment signed against the casual ejector pur- suant to the first mentioned rule. Upon the mo- tion of Mr. By the Court. No. 36. George the Third, (&c.) To the Sheriff of greeting : Whereas, John Doe, lately in our court before us at Westminster, by our writ, (or if by bill, say, "by bill without our writ, 1 ') and by the judgment of the same court recovered against C. D., (or if the judgment, be by default " against Richard Roe,") his term then and yet to come, of and in dwelling houses, &c. pMt 366 APPENDIX. (as in the declaration in ejectment) with the ap- purtenances, situate, &c. which A. B., on, &c. had demised to the said J. D., to hold the same to the said J. D. and his assigns, from, &c. for and during, .>, and unto the full end and term of - years $ from thence next ensuing, and fully to be com- plete and ended, * by virtue of which said demise, the said J. D. entered into the said tenements with the appurtenances, and was possessed there- of, until the said C. D. afterwards, (to wit,) on, &c. with force and arms, (&c.) entered into the said tenements with the appurtenances, which the said A. B. had demised to the said J. D. in man- ner, and for the term aforesaid, which was not then, nor is yet expired, and ejected the said J. D. from his said farmO^?-; whereof the said C. D. is convicted, as appears to us of record ; there- fore we command you, that without delay you cause the said J. D. to have the possession of his said term yet to come of and in the tenements aforesaid, with the appurtenances : and in what manner you shall have executed this our writ, make appear to us, on wheresoever we shall then be in England, (or by bill, " to us at West- minster, on next after ,"t) and have there (or by bill, " have there then,") this writ. Witness, Edward Lord Ellenborough, (&c.) No. 37. (^ S m P rece ding precedent to* ;) and also his term, then, and yet to come, of and in other dwelling houses, (&c.) with the appurte- nances, which E. F., on, &c. had demised to the said J. D., to hold the same to the said J. D. and his assigns, from, &c. for and during, and unto. APPENDIX. 367 the full end and term of years from thence next ensuing, and fully to be complete and ended ; by virtue of which said several demises, the said J. D. entered into the said several tenements with the appurtenances, and was possessed there- of, until the said C. D. afterwards, to wit, on, &c. with force and arms, &c. entered into the said several tenements with the appurtenances, which the said A. B. and E. F. had respectively demised to the said John Doe, in manner, and for the se- veral terms aforesaid, which were not then, nor are yet expired, and ejected the said J. D. from his said several farms ; whereof the said C. D. is convicted, (adding in K. B. " as appears to us of record :") therefore we command you, that with- out delay, you cause the said J. D. to have the possession of his said several terms yet to come, of and in the said several tenements, with the appur- tenances : and in what manner, &c. (a? in preced- ing precedent to the end.) No. 38. (As in No. 36, to t.) We also command you, TH^ iik ?) aa that of the goods and chattels of the said C. D., costs, by ori- ginal in K. D. in your bailiwick, you cause to be made . which the said J. D., lately in our said court be- fore us, at Westminster, aforesaid, recovered against the said C. D. for his damages, which he had sustained, as well on occasion of the trespass and ejectment aforesaid, as for his costs and charges by him, about his suit, in that behalf ex- pended ; whereof the said C. D. is convicted, as appears to us of record : and have you the moneys before us, on the return day aforesaid, whereso- ever, (&c.) to be rendered to the said John Doe, 368 APPENDIX. for his damages aforesaid, and have there this writ. Witness, Edward Lord Ellenborough. No. 39. Tbeiike,nd (As in No. 36, to t) we also command you, that .-.i pi-is ad sa- v tisfacirndum y OU take the said C. D., if he shall be found in lor costs, by y Our bailiwick, and him safely keep, so that you may have his body before us, on the return day aforesaid, wheresoever, (&c.) to satisfy the said J. D. . which in our said court before us, at Westminster aforesaid, were adjudged to the said J. D., for his damages, which, &c. (as in pre- ceding precedent to the end.) No. 40. ai in * (Copy the last precedent to the end, omitting inerror,on the words "and have there this writ," and then an affirmance o" L"ords use as fU ws : ) an d also . which in our Court of Parliament were adjudged to the said J. D., ac- cording to the form of the statute in such case made and provided, for his damages, costs and charges, which he had sustained and expended, by reason of the delay of execution of the judgment afore- said, on pretext of prosecuting our writ of error, brought thereupon by the said C. D. against the said J. D., in the same Court of Parliament, the said judgment being there in all things affirmed : whereof the said C. D. is also convicted, as by the inspection of the record and proceedings thereof, remitted from our said Court of Parlia- ment into our said court before us, likewise ap- pear to us of record ; and have there this writ. Witness, (&c.) APPENDIX. 369 No. 41. (As in No. 36. to " whereof the said C. D. is writer rwu- tutioo. convicted," &c. and then as follows :) and whereas we afterwards, to wit, in term aforesaid, by our writ, commanded you, that without delay you should cause the said J. D. to have possession of his said term, then to come, of and in the tene- ments aforesaid, with the appurtenances ; and that you should make known to us on a day now past, in what manner you should have executed that our writ : and because since the issuing of our said writ, it hath appeared to us, that the said judgment, obtained by the said J. D., in manner aforesaid, was irregularly obtained, and that our said writ thereupon issued improvidently and un- justly ; therefore we command you, that if pos- session of the tenements aforesaid, with the appurtenances, hath, by virtue of our said writ, been given or delivered to the said J. D., then that without delay you cause restitution of the said tenements with the appurtenances, to be made to the said G. H. or his assigns, at whose instance the judgnu nt aforesaid hath been set aside by our said Court, he, the said G. H., being landlord and owner of the tenements aforesaid, with the appur- tenances ; and that whatever has been done by virtue of our said writ, you deem altogether void, and of no effect, as you will answer the contrary at your peril : and in what manner, &c. (as in No. 34. to the end.) No. 42. As in No. 36. to this mark (7-. and then as fol- &**/** for th plaii- lows :) and also . for the damages which the Mr - 47 370 APPENDIX. said John Doe had sustained, as well on occasion of the trespass and ejectment aforesaid, as for hii costs and charges by him, about his suit in that behalf expended ; whereof the said C. D. is con- victed; as appears to us of record : And now, on the behalf of the said J. D. in our said Court be- fore us, we have been informed, that although judgment be thereupon given, yet execution of that judgment still remains to be made to him ; wherefore the said J. D. hath humbly besought us to provide him a proper remedy in this behalf; and we being willing that what is just in this be- half should be done, command you. that by honest and lawful men of your bailiwick, you make known to the said G. D. (if against the casual ejector u to the said Richard Roe, and also to and the tenants in possession of the premises aforesaid,") that he, (or they,) be before us, on wheresoever, (&c.) to show if he has or knows of any thing to say for himself, or, (if they have or know, or if either of them hath or knoweth, of any thing to say for themselves or himself,) why the said J. D. ought not to have the possession of his said term yet to come, of and in the tenements aforesaid, and also execution of the damages, costs and charges, aforesaid, according to the force, form, and effect of the said recovery, if it shall seem expedient for him so to do, and further to do and receive what our said Court before us shall consider of him, (or them,) in this behalf: And have there the names of those by whom you shall so make known to him, (or them,) and this writ. Witness, Edward Lord Ellenborough, (&c.) APPENDIX. 371 No. 43. Doe, on the demise of A. B. } Upon reading the ?" r l v. Roe - - - ..... 5 affidavit of L. M. (&c.) it is ordered, that the lessor of the plaintiff, upon notice, (&c.) show cause, why further pro- cecdings in this action should not be stayed, until a sufficient guardian be appointed for the lessor of the plaintiff, who will undertake to pay to the defendant such costs as may happen to be ad- judged to him ; and that in the mean time further proceedings be stayed. Upon the motion of Mr. By the Court. No. 44. Doe, on the demise of A. B. > Upon reading Tbe uke, IHJ O security be v. Roe ...... - --- 5 the affidavit of L. for M. and another, it is ordered, that the lessor of the plaintiff, upon notice, (&c.) show cause, why further proceedings in this action should not be stayed, until * sufficient security be given to an- swer the defendant his costs, in case the plaintiff be nonsuited, or a verdict shall be given for the said defendant ; and that in the mean time further proceedings be stayed. Upon, &c. No. 45. (As in No. 44, to.*) the costs taxed in a former J^.'^j" action brought in the Court of King's Bench, on |^dTfif- thc demise of the lessor of the plaintiff, for the ^ 1 B actit " li " same premises, are paid ; and in the mean time and until this Court shall otherwise order, that all further proceedings be stayed. Upon. &c. 372 AFPENDIX. No. 46. Upon reading the affidavit of G. H., it is order- ea< > tnat t ne lessor of the plaintiff, upon notice, (hown to the contrary, such magistrate shall issue an order or warrant, to be directed to the sheriff of the county within which the premises are situa- ted, or to any constable or marshal of any city or town, commanding him to remove all persons from the said premises, and to put such landlord or lessor, or his or their heirs, executors, adminis- trators or assigns, into the possession thereof. And the said sheriff, constable, or marshal, is hereby required to obey and execute such order or war- rroviso. rant : Provided always, That in case of a tenancy at will or sufferance, the landlord or lessor shall give three months notice in writing to the tenant or tenants of the premises, requiring him or them to remove therefrom, before applying to a magis- trate for relief under this act : which notice shall be served by delivering the same to such tenant or tenants, or some person of proper age residing on the premises : and if the tenant or tenants can- not be found, or there be no such person residing on the premises, then such notice shall be served by putting up the same on the most conspicuous part of the premises, and where the same can be K.irther pro- the most conveniently read : And provided also, That in the case of a proceeding for non-payment of rent, as before mentioned, there shall have been a demand of such rent, or three days notice, in writing, by the person or persons entitled to such rent, to the person or persons owing the same, re- quiring the payment of the said rent, or the deli- very of possession of the premises, to be served in the same manner as last provided, jury wbn U. And be it further enacted. That if such per- t<. be gum- . . . gon or persons in possession of such premises as aforesaid, or claiming the possession thereof, shall APPENDIX. 379 make oath that the term in the premises in ques- tion is not expired, or that he, she, or they, do not hold or claim the said premises contrary to an agreement then existing between them and the person or persons applying for such summons as aforesaid ; or in the case of an application by rea- son of the non-payment of rent, if the person or" persons against whom such application is made, shall make oath that such rent is not in arrear and unpaid, the said magistrate, or any other of the aid magistrates before named, in their respective cities and counties, shall issue a precept, directed to the sheriff of the said city or county, command- ing him to summon a jury of twelve men, qualified to serre as jurors in courts of record, to appear before the magistrate issuing such precept, either on the day of issuing such precept, or on the day thereafter, who shall hear the proofs and allega- tions of the parties, and under the advice and di- rection of such magistrate last mentioned, shall hear and determine the matter in difference be- tween the said parties ; that the said jury shall be empanelled and sworn as is usual in trials by jur> in courts of record ; and if the verdict of the said jury shall be for the landlord or lessor, or person or persons applying for the summons in the first instance, as herein provided, the said magistrate, before whom such trial by jury shall take place, shall issue a similar order or warrant to put the landlord or lessor, or person or persons applying for such summons in the first instance as aforesaid, into the possession of the premises, as is provided for in the first section of this act. III. And be it further enacted, That in the case surhy for of a proceeding under this act for the non-pay- non-' w - f ?.,. j f ^ A mcnt,**. ment of rent, if the decision of the magistrate or 380 APPENDIX. the verdict of the jury, as the case may be, shall be against the person or persons of whom such rent is claimed, the contract or agreement, and the relation of landlord and tenant between the parties shall he thereafter cancelled and annulled, unless the person or persons owing such rent shall forthwith pay the said rent, and the costs of pro- ceeding under this act, or give such security to the person or persons entitled to the said rent, for the payment thereof, with costs, in ten days there- after, as shall be satisfactory to the said magistrate : And further, That no proceeding for non-payment of rent shall take place under this act, in any case where it shall appear that satisfaction for such rent might have been obtained by distress. Construction IV. And be it further enacted. That every agree- of certain . . . ag^eemeuts. ment which shall be made tor the hiring or occu- pation of any lands or tenements in the city of New- York, and which shall not particularly spe- cify the time during which such hiring or occupa- tion is to continue, shall be deemed and held valid until the lirst day of May next after the time when the possession under such agreement shall com- mence ; and that unless it is otherwise agreed upon between the parties to such agreement, the rent under such agreement, or the compensation to the landlord, for the use and occupation of the premises, shall be payable on the usual quarter days for the payment of rent in the said city, and paroi agree- be recoverable accordingly. And further, That inrnts not va- . .^ ,. lid, except no agreement by parole, and not in writing, lor for on* year. . . the letting or hiring of any lands or tenements in the city of New- York, shall be valid or binding in law, for any longer period than one year from the making thereof. APPENDIX. 381 V. And be it further enacted, That if any per- faiie rear- ing perjury. son who shall be sworn to any matter by virtue of this act, shall in such matter swear falsely, such person shall, on conviction thereof, be subject to all the pains and penalties of perjury. VI. And be it further enacted, That nothing in aighu rewr- this act contained, shall be construed to impair the of officer*. rights of any landlord or lessor, under existing laws ; and that the magistrates and officers shall be entitled to the like fees, under this act, as for similar services under any other act or acts, to be paid by the party against whom the decision shall be pronounced, and recovered of him by the other party in an action of debt. VII. And be it further enacted. That it shall and "&>* topm- * sue goods ta- may be lawful for any lessor or landlord, or any ke ? *y ' * J \ J defraud laixl- person or persons by him for that purpose lawfully lord - empowered, at any time within the space of thirty days next after the rent shall have become due and payable, to pursue, take and seize, all such goods or chattels of such tenant, or lessee, as a dis- tress for the arrears of rent, as may have been conveyed away or carried from off the demised premises, and that so much of the thirteenth sec- tion of the act " concerning distresses, rents, and the renewal of leases," as is repugnant hereto, be, and the same is hereby repealed. VIII. And be it further enacted, That any te- special dan- nant or tenants, who shall hold over the posses- tenams^hoM- sion of any lands, tenements or hereditaments, against the provisions of the twenty-first section of the said act " concerning distresses, rents, and the renewal of leases," in addition to the double rent thereby given, shall be liable to pay and re- munerate the landlord or lessor for all special da- mages whatsoever, to which such landlord or les- 382 APPENDIX. sor may be subjected, by reason of such holding over, to be recovered in like manner, as in and by the said act is provided. When land- IX. And be it further enacted, That if the te- lord may re- rioT T*~ nant or l essee f anv lands or tenements shall take the benefit of any insolvent act, or shall abscond and leave the premises vacant, the landlord or lessor shall, in either such case, and on due proof thereof, be entitled to the like proceedings, for obtaining the possession of the said premises as are provided in the first section of this act, unless the tenant or lessee shall give such security to the landlord or lessor of the said premises, for the pay- ment of the rent thereof, as the same shall become due, as shall be satisfactory to the magistrate to whom application shall be made for such proceed- ings as aforesaid. certain act X. And be it further enacted, That the act, en- titled " An act to amend an act, entitled ' an act concerning distresses, rents, and the renewal of leases', passed April 5th, 1813, and for other pur- poses," passed April 21st, 1818. be, and the same is hereby repealed. A ABATEMENT, Page mode of pleading ID .... 243 jurisdiction of another court may be pleaded in . 242 ancient demesne, good plea in . . 244 not created, by death of lessor of plaintiff . . 288 defendant, after assizes began 298 plaintiff, in ancient practice 181 ABATOR, not within stat. 32 Hen. VIII. c. 38. . 43 ACCORD, formerly good plea in ejectment . 242 (7) ACTIONS, real, when first disused .... 9 statute of fines only includes . 91 consolidation of . . . 237. 323 ADMINISTRATOR. Vide Personal Representative. ADMINISTRATION Letters of, when evidence . 271 ADMITTANCE, to Copyholds, surrenderee cannot bring ejectment before . . 66 cannot devise before . . .66 heir may bring ejectment before . . 67. 257 except against lord 67. 257 title relates to time of surrender after . . 66 copyholds cannot be forfeited before . . 284 manner of proving .... 257 to chambers, not similar to . . .66 (y) ADVOWSON, ejectment will not lie for an . . 16 AFFIDAVIT, to stay proceedings under 4 Geo. II. c. 28 . 169 (r) 7Geo. II. c. 20 . . 824 lor leave to plead ancient demesne . . 244 384 INDEX. AFFIDAVIT, Page for motion for trial at bar . . . 291 in ancient practice, of sealing lease . . 179 of service of declaration, must be annexed to declaration . . 216 when to be made . . , . . 216 by and before whom to be made . . 217 facts to be stated in . . . 217,218 must be positive, and why . . . 218 when more than one necessary . . 219 defective, how remedied . . . 219 AFTER-MATH . ... 19 AGREEMENT, void, when implied tenancy created by . .107 for lease, proviso for re-entry in . .170 what words will create . . 109, &c. for increase of rent does not alter tenancy . . 135 ALDER CARR . . . . .21 ALTERNATIVE Notice Fide Notice to quit. AMENDMENT of declaration . . .200 ANCIENT Demesne, plea of . . .244 ANCESTOR, dying under disability to enter . . .60 possessed, evidence of seisin . . 252 descent from common, how proved . . 253 APPEARANCE, how regulated by common law . . . 226 statute .... 227 who may appear as landlords . . 229, &c. of what term to be entered . . . 240 how to be made .... 237, &c. time allowed for . . . 220, &c. for part only, now unnecessary . . . 235 cannot be entered by landlord for tenant . . 238 by parson for right to perform service 233 if trick to put off trial . . 233 when permitted by wife alone . . 232 by landlord, motion for, when to be made . ., . ^ 239 INDEX. 385 APPEARANCE, power once assumed by king's bench respecting how lessor to proceed after ARTICLES of church of England, when proof of subscription to necessary . . 273 ASSIGNEK, of a bankrupt, may maintain ejectment . . 69 evidence in ejectment by . . 275 assignment to, not breacli of general co- venant not to assign 165, If 6 by estoppel, not within 32 Henry VIII. c. 34. . 76 of lesser, when notice to quit to be given to 1-40, 141 of mortgagee, may maintain ejectment . . 62 when exempted from giving notice to quit 107 may defend as landlord . . 231 evidence in ejectment by . . 283 of reversion, may maintain ejectment, in what cases 74. 172 evidence in ejectment by . . 282 ASSIGNMENTS of Lease, when presumed . 283, 284 ATTACHMENT, granted on breach of consent rule . . 23G, 301 for disturbing sheriff in execution . . 309 how in the case of a peer . . . 304 not granted, on consent rule till signed by lessor 236. 2 14 upon stat. 7 Geo. II. c. 20. . . 327 ATTESTATION OF WITNESSES, to devise of freeholds, what sufficient . . 260 how to be made . . 264 form of ... 265 ATTORNEY, must not be lessee in ejectment . . 178, (o) forms in ancient practice, executed by . .179 warrant of to confess judgment, when lease forfeited by 166 ATTORNMENT to stranger destroys tenancy .... . 119 AWARD, ejectment will lie on ... 89 B. BAIL, common, must be filed, in what cases . . 223 386 I N D E X. BAIL, Page to file, when part ol consent rule . . 233 time of filing . . . . .223 BAIL, in error, who may be ..... 313 sum required of . . . .314 when chargeable with mesne profits . . 315 in action for mesne profits . . . 330 HAIL1FF, service of declaration upon, not good . 213 BANKRUPT, assignee of Vide Assignee of Bankrupt. BANKRUPTCY. proviso in lease to re-enter on, good . . 147 and sale, breach of covenant to occupy . . 166 no plea to action for mesne profits . . . 333 BARGAINEE OF REVERSION, within 32 Hen. VIII. c.34. 75 BEAST-GATE . . . . - 21 BILL OF PEACE, when granted in ejectments . 316 BIRTHS, how proved . . . 265,256 BIS PETITUM, no objection in ejectment . . 22 BODY POLITIC Vide Corporation BOG 22 BOILARY OF SALT . . . .17 BREACHES, particulars of, lessor, how and when compelled to give . .317 evidence confined to breaches contained in . 282 BUILDING by encroachment, when to be mentioned in demise 27 BURGAGE 23 C. CAPIAS AD SATISFACIENDUM, writ of. when lessor entitled to for costs . . 300, &c. when to be sued out by defendant for costs . 302 CASUAL EJECTOR. in ancient practice, when fint used, and why . . .12 suit proceeds in name of . . .170 cannot confess judgment . . .181 in modern practice, declaration against, how entitled . . 185 INDEX. 387 CASUAL EJECTOR, judgment aeainst p age motion for, for want of appearance, on what founded . . . 216 not to be moved in court in common cases 219 at what time to be made 220, 221, 222 on 4 Geo. II. c. 28. . . 159 on nonsuit for not confessing . 290 rule for, when and how drawn up . . 222 when common bail necessary before . . 222 how and when to be siffned 222. 234. 259. 247. 289 in what cases set aside, and how . . . 225 how entered, when some of several defendants confess 290 semblc not equivalent to trial under 4 Geo. II. c. 28. 157 CATTLE-GATES . . . . .21 CERTIORARI writ of, ejectment cannot be removed by 180 CESTUI QUE TRUST, lease by, will not bar trustee from recovering in ejectment 86 when legal estate vested in . . . 81, &c. when possession of, not adverse to trustees . 52 when demise to be laid by ... 188 CESTUI QUE USE, within 32 Hen. VIII. c. 34. . 75 CHAMBER ...... 24 CHAPEL, ejectment will lie for .... 16 how to be described . . . .16 service of declaration for . . . 213 CHURCH 16 CHURCH-WARDENS, service of declaration upon . 213 CLERK OF TH E RULES, ejectment book how to be kept by 222 CLOSE, ejectment will lie for a, when . . .24 COAL MINES in Durham, how described in demise . 26 CO-DEFENDANT, landlord may be with tenant . 226 CODICIL, signing of, not signing of will . . 263 COMMON BAIL. HVfe Bail. COMMON, Tenants in Vide Tenant. COMMON, for what kinds of, ejectment will lie . . 17 encroachment on, belongs to whom . . 5ft 388 INDEX. COMMON, Pafe of pasture generally, trood after verdict . . 296 COMPETENCY OF WITNESSES . . 250,265 CONDITION, [{reach of. Vide Proviso. CONFESSION OF LEASE, &c. . . . 235 CONSENT RULE, when invented . . . .14 form and terms of .... 233 how formerly drawn up . . . 234 is not evidence of defendant's possession . . 235 when nonsuit for want of lease, &c. prevented by . 235 how drawn up, in case of joint-tenants, &c. . 236 lessor of plaintiff must join in 236 attachment li^s for breach of . . 236, 237 when to be produced at trial . . . 276 CONSOLIDATION RULE . . . .237 CONTEMPT OF COURT, misconduct on delivery of declaration is . 184, (j) assigning death of plaintiff for error is . . 181 release of plaintiff to tenant is . . .181 CONTINUAL CLAIM, what is, and how made . 99 CONUSEE,of Statute Merchant or Staple, may maintain ejectment 70 evidence by . . 272 COPYHOLDER, may maintain ejectment . . . .65 cannot forfeit lands before admittance . . 284 evidence in ejectment by . . 256. 269. 271 devisee of Vide Copyholds, surrenderee of Vide Copyholds. lessee of may maintain ejectment . . .67 evidence in ejectment by . . . 272 COPYHOLDS, not affected by descents cast . . 41 within slat. 32 Hen. V11I. c. 34. . . 76 not within stat. of uses . . . .85 stat. 29 Car. II. c. 3. . - .' . 72 enfranchisement of, may be presumed . . 285 INDEX. 389 COPYHOLD, Pae what sufficient will, to pass . . . 267 forfeiture of, rannot he before admittance . . 283 who may take advantage of . . 64 q if 21 Jac. I.e. 16. operates on . 65 COPYHOLDS, devisee or surrenderee of, before admittance cannot devise . . 67 maintain ejectment 66. 190 evidence in ejectment by . 270,271 ancient demesne, no plea in ejectment for . 244 receipt of customary rent for, does not create tenancy 118 CORPORATIONS, cannot make a discontinuance . . .40 are within 32 Hen. VIII. c. 33. . .43 may maintain ejectment . . . .79 how notice to quit to be given to . . 124 officers of, may give notices to quit . . 121 how demise to be laid by . . . . 193 how name of to be slated in demise . . 194 CORN MILLS 23 COSTS payable, how under 4 Geo. II. c. 28. . . .154 by infant lessor, when . . . 304 by feme, after baron co-defendant's death . 304 when to one of several defendants acquitted . 304 by such defendants as refuse to confess . 289 by lessor, to which defendant he pleases . 305 not payable, by lessor, if he join not in consent rule 245. 305 by lessor suing in forma pauper is, though dispau- pered . . . . ' . 305 by executor of lessor in any case . 302. 304 to executor of lessor on consent rule, when . 302 how to be recovered by lessor, on judgment for want of appearance . 301.332 on nonsuit for not confessing . . 301 when some of several defendants confess . 301 <^n verdict against tenant . . . 302 landlord 302 390 INDEX. COSTS, feme sole married before exe- tion . . . 302 each defendant liable for the whole . . 301 general remedy for recovery of ' . . 303 defendant when entitled to by 8 & 9 W. 3. c. 11. . 304 how to be recovered, by defendant, in the king's bench . . 303 how to be recovered, by defendant, in the common pleas . 303 when plaintiff's lessor is a peer 304 security granted for, in what cases . 317, &c. proceedings staid till payment of, when . 3iy, &c. in action for mesne profits, when security for granted . . . 330 certificate for necessary, if damages under 40s. 338 COTTAGE ...... 23 COURTS OF EQUITY, ousters of leaseholders formerly redressed by . 7 application to, under 4 Geo. II. c. 28. . 155. 157 interference of, to prevent repeated ejectments . 316 mesne profits, before entry to avoid fine, recoverable in 335 COURT-ROLLS, when evidence . . . . 270 court will grant inspection of ... 270 COVENANT, writ of 2 COVENANT, action of, will waive a forfeiture, when 161 COVENANTS, what incident to the reversion . . .75 what are good ..... 147 how dispensed with . . . 172 breach of, when tenancy determined by . . 147 who may bring ejectment on . 74. 172, 173 actual entry not necessary on . 90. 146 landlord not bound to notice . . 62 what will be a waiver of . . 173 evidence in ejectment on . . 282 what amounts to, not to assign . ] 62. 165 let . 164, 165 INDEX. 391 COVENANTS. Page put away . 163 part with . 164 commit waste . 167 exercise a trade 168 to actually occupy . 167 insure . . 168 deliver up trees . 169 givenoticeof fellinijtimber 170 to repair generally, independent of to repair after noJice 169 what affected by proviso containing the word hereinafter 170 CREDITORS may witness wills . . .266 CUSTOMARY ESTATES not affected by descents cast 41 CUSTOMS, to give three or twelve months notice to quit, good 131 must be strictly proved .... 131 manner of proving .... 258 D. DAMAGES, in ejectment, action may proceed for, though term expire . 204 lessor die . 288 are nominal only .... 289 formerly comprehended real injury sustained . 328 in action for mesne profits .... 337 DEATH, of lessor, no abatement of suit . . . 306 q. if srire facias necessary after . .311 security given for costs upon . . 318 costs not payable to defendant upon . 301 of defendant, not cause of error when . . 298 suggestion of, how entered . . 298 q. if scire facias necessary upon . 311 of plaintiff, no abatement of suit . . .181 to assign for error, is a contempt . 181 of person, how proved . . . 253, &c. DECLARATION, how framed in ancient practice . . .178 892 INDEX. DECLARATION, p ag modern practice . . .13 action for niesue profits . . 332 how entitled . . . . .185 may be by bill, or by original . . . 185 service of, suit commenced by . . .184 resembles service of writ . . 209 service of, must be before essoi;n day . . 207 should be on party actually in possession 209 how made in common cases, upon tenants in possession . 209 wife of tenant . .211 child or servant of tenant . 212 when tenant absconds 213, &c. in ejectment for a chapel . 213 poorhouse . 213 when some of the houses are un- tenanted 216 upon one tenant in possession, good against all 212 wife of one tenant not good against all 212 not good, upon person having keys . 213 receiver under Court of Chan- cery 213 irregular, when made good . . 211, &c. court will not antedate . . . 215 tenant must give notice of, when . . 228 may be good for part, and bad for part 216 in action for mesne profits . . .332 amendment of, sembh, may be before appearance 200, 201 may be in demise, term, &c. 203, &c. names of parties . . 205 description of premises . 205 not permitted to real injury of defendant 204 DECLARATIONS of persons deceased, when evidence 254 DEED, demise by, deed need not be proved . . 194 now unnecessary . . .193 DEFENDANT, who may be admitted. . . . 228, &c. INDEX. 393 DEFENDANT, Page death of, no abatement of suit when . . 298 cause of error, when . . . 299 evidence in ejectment, on the part of . . 285 in action for mesne profits, who should be . 330, &c. when entitled to make the first address to the jury . 25P DEMISE, on, with lessor's title . .186 declaration may be entitled prior to . . 185 on a joint, lessors must have joint interest . . ISC who may make a joint or several . . . 187 when several distinct necessary . . . 187 under a, of whole, undivided moiety may be recovered 187 must be after lessor's title accrues . . 189 should be soon after lessor's title accrues, and why 180 not necessary to state premises to be in a parish in 195 if parish is stated in, must be proved as laid . 196 premises, how described in, when more than one parish 19J" need not state exact quantities to be recovered . 197 time of laying, by heir .... 190 posthumous son . . .190 surrenderee of copyholds .. 190 assignees of bankrupt . . 190 insolvent debtor . 190 when fine levied . . . 191 against tenants at will . . 191 when commencement of tenancy unknown 192 how to be laid, by corporations . . 193 overseers of a parish . . 191 in ejectment for tithes . .194 by masters of colleges, &c. . . 195 infants . . .195 period of, caution respecting . 192, 193 is transitory . . . .181 may be amended after its expiration . 203 intendment is in favour of, after verdict . . 295 DESCENTS CAST, definition of . 40 50 ; is still necessary, when fine with proclamations levied, and why 90, &c. when ancient practice is used . . . 178 is not necessary, if party levying fine has not a freehold interest 93, &c. when fine at common law levied . . 91 when all the proclamations not completed . 96 when fine is once avoided . . .99 when fine is accepted . . .96 in ejectment on the forfeiture of a lease . 146 INDEX. ENTRY, ACTUAL, on fine by joint tenant, &c. without previous ouster 96 to avoid statute of limitations, hut prudent . 100 before fine levied, will not avoid subsequent fine . 92 party making must have right to enter . . 93 time of making to avoid a fine . . .94 by whom to be made .... 94. 96 how to be made . . . . .98 ejectment must be brought within a year after . 09 consent rule no substitute for . . 235 ENTRY, right of, must be in lessor . . . 33. 145 proved at the trial, and how 247- 280 how taken away . . . .34 is not devisable . . . .94 must accrue before day of demise . . 189 of judgment Vide Judgment. of plaintiff, how stated in declaration . . 198 confessed by consent rule . . 233 when pleadable puis darrien continuance 246 of one joint tenant, &c. entry of all . . 97 lease for life cannot be avoided without . . 175 years cannot he avoided without, when 175 of nonsuit for not confessing lease, &c. . . 234 may be made pending error, when . . 315 upon demised lands, substantial time of . 136, &c. when and how proved in action for mesne profits 334 ERROR, judgment quod defendcns sit quietus is . . 298 death of defendant, is not .... 298 want of suggestion of, is . 299 rule not to commit waste pending . . . - 315 bail in . . . . 314 action for mesne profits will lie pending . . 329 elegit for mesne profits may be sued out after . 339 ERROR, writ of, will not lie, before verdict . . . 312 against casual ejector . . . 312 INDEX. J9? KRROR, writ of, Page except in ancient practice 312 (/) if defendant do not confess . . 312 how brought by landlord .... 312 no stay of execution, until bail put in . 314 ESCHEAT, Lord by, not within 32 Hen VIII. c. 34. .. . 75 may defend ejectment, quaere . . . 232 ESSOIGN-DAY, declaration must be served before . . . 207 in King's Bench received by tenant before, 212, &c. ESTATE-TAIL, how discontinued . .34 EVIDENCE, on the part of the lessor, general points of .... 247 by heirs, at common law . . 252, &c. to copyhold lands . . . 257 customary .... 257 devisees, of freeholds . . . 259, &c. copyholds .... 270 terms for years . . .271 personal representatives . . . 271 joint tenants, &c. against companions . . 275 landlords against tenants on the termination of leases . . 277 notices to quit . . . 278 the forfeiture of leases . . 282 assignees of the reversion . . . 283 lords of manors .... 2: ; 4 surrenderees of copyholds . . . 272 lessees of copyholders .... 272 mortgagees . . . . ,283 tenants by elegit .... 272 conusees of statutes merchant or staple . . 272 by rectors or vicars .... 273 guardians ..... 274 assignees of bankrupts .... 274 rn the part of the defendant . . . 286 398 INDEX. EVIDENCE, in actions for mesne profits, when profits antecedent to demise are to be recovered 334 subsequent to demise . 335, 336 EXECUTION, sheriff, may demand indemnity before . . 308 power of, to enforce . . . 308 staid by consent rule, when . . . 234 is made at lessor's peril . . . 21.307 how to be taken out, on judgment for want of an appearance 224 after verdict against landlord . . 306 when some defendants die . . . 300 when a sole defendant dies . . .311 when defendant marries before execution . 311 cannot be taken out pending error . . . 277 not staid by writ of error till bail put in . . 314 set aside if lessor's right cease before writ issued . 306 landlord must show error brought as cause against 312 must only be for premises recovered . . 307 or courts will interfere . 307 sometimes confined by rule to premises recovered 307 how to be made by sheriff .... 308 instances of insufficient .... 308 attachment granted for disturbing . . . 308 when second granted . 309, &c. when scire facias necessary before . . .311 executed, when judgments set aside after . 225.239 cannot apply under 4 Geo. II. c. 28. after 154 7 Geo. II. c. 20. after 324 for mesne profits, staid until error determined . 329 of will, under statute of frauds . . 260, &c. EXECUTION, writ of its nature ..... 30C how drawn up .... 307 lessor may enter peaceably without . . 305 EXECUTOR Vide Personal Representative. EXTINGUISHMENT of estate . 171 INDEX. 399 F. FEME COVERT, Page cannot constitute an attorney . . .179 devise to trustees, to suffer to receive rents . 81 receipt of rent by, after separation from baron . 114 service of declaration upon . . . 258 may defend ejectment against baron, when . 232 liable to costs, if baron co-defendant die . . 304 judgment against, not evidence against baron . 337 statute of limitations runs not against . . 46 baron cannot discontinue lands of . . .38 not affected by descents cast . . .41 FEOFFMENT, by tenant for years . 94 FIERI FACIAS, writ of, when lessor entitled to for costs . . 302, &c. when sued out by defendant for costs . . 303 FINE, when entry necessary to avoid . . 90, &c. when not .... 92. 95 when avoided by entry . . . .93 when discontinuance worked by . . 35. 93 by joint tenant, &c. no ouster of companion . 56 tenant for life accepting, is a forfeiture . . 96 and non-claim, need not be pleaded . . 242 raesne profits before avoidance of, how recovered . 335 FISHERY .... 18 FORFEITURE, by copyholder. Vide Copyholds of lease. Vide Covenant FREE BENCH . . 67 FURZE and HEATH G. GAVELKIND . .57 GLEBE, parson cannot bring ejectment for, after sequestration 80 evidence in ejectment for '. 274 GORSE and FURZE 25 400 INDEX. ARDIANS, Page in socage or testamentary, may bring ojrctment . 68 make actual entry for ward 97 evidence in ejectments by 274 H. HABEAS CORPUS, ejectments removed from inferior courts by . . . . .180 1IABERE FACIAS POSSESSIONEM, writ of, nature of . '. . . . . 306 how drawn up ..... 307 return of, should be made . . 309,310 when evidence in action for mesne profits . . 334 Vide Execution. II ACE RE FACIAS SEISLNAM, writ of . 30G HAY-GRASS ... 19 HEARSAY, when evidence . . 254, &c. HEIRS, time allowed for entry of, by 21 Jac. I. c. 16. . GO demise by, when to be laid . . . 190 staying proceedings by, under 7 Geo. II. c. 20. . 325 may defend ejectment .... 330 are competent witnesses in ejectment . . 252 may examine all the witnesses to a will . . 267 evidence by, at common law . . . 252 to copyholds . . . 257 customary .... 257 HERALD'S BOOKS, evidence of pedigree . . 257 HERBAGE ... 19 HEREDITAMENTS, corporeal, recoverable in eject- ment ...... 16 HIGH-WAY 18 HOP-YARD .... .20 HOUSE. Fide Messuage I. IMPARLANCE, new declaration formerly delivered af- ter ..... 201 (n) INDEX. 401 IMPOSSIBLE YEAR, Page rejected in notice to quit . . . .127 ouster in declaration . . . 199 INFANT, may maintain ejectment . . . .69 when bound by his attorney's acts . .114 must give notice to quit .... 120 security for costs, when . 195. 317 liable for costs, when .... 305 demise by, how laid .... 195 INFERIOR COURTS, ancient practice necessary in, and why . . 177 ejectments, how removed from . . .180 when jurisdiction of not pleadable . .181 how to proceed in . . . .180 INJUNCTION against bringing ejectments, when granted 316 INTRUDER, not within 32 Hen. VIII. c. 33. . . 43 IRELAND, premises described by terms used in . .21 security for costs on demise by resident in . 318 ISSUE, must agree with declaration . . . 245 how made up ..... 245 variance between and record, how to proceed when 290 general, commonly left with consent rule . 237- 241 in action for mesne profits J JOIN T-TEN ANTS, may maintain ejectment against co-tenants, when 56. 88 when aflected by 21 Jac. 1. c. 16. . . 54 demise by, how laid .... 187 entry of one is entry of all ... 97 possession of one is possession of all . . 56. 96 what acts of are ousters of companions . . 56 fine by one no ouster of others . . .96 must all join in notice to quit . . 121 notice to quit to one will bind all, when . . 125 service 01 declaration upon one, good against all 212 51 402 INDEX. JOINT-TENANTS, p af e special consent-rule, when granted to . . 236 evidence in ejectments by ... 27f> may bring action against co-tenants for mesne profits 331 JUDGMENT, in ejectment, is not final .... 294. 315 possession only is recovered by . . 294. 315 must be entered according to the verdict . . 295 intendment after, in favour of claimant . 295, &c. how entered relirta verificatione . , . 245 when defendant will not confess . 289 whole premises are recovered . 297 part of whole premises are recovered 297 some parcels only . . 298 sole defendant dies . . 298 some of several die . . 298 against feme, when baron dies . 298 is not evidence in a second ejectment . . 192 when evidence in action for mesne profits 189> 335, 336 when entered for want of plea . . . 242 formerly entered quod defendens capiatw 298 (/) casual ejector cannot confess . . . 181 proceedings to, in ancient practice . I79j 180 mesne profits recoverable after, in all cases . 330 arrest of, motion for .... 29* against casual ejector. Vide Casual Ejector. JURISDICTION, may be pleaded to in ejectment . . . 243 of inferior court, cannot be pleaded when . . 181 rule to plead to, when granted . . . 243 how drawn up . . 244 K. KING, may maintain ejectment semble . . 79 how under 8 Hen. VI. c. 16. and 18 Hen. VI. c. 6. 79 is not within 21 Jac. I. c. 16. 46 when concluded by 9 Gee. III. c. 16. . . 46 (g] INDEX. 403 Page KITCHEN ... .24 KNEAVEofLAND . . .22 L. LADY-DAY, notice to quit at generally, how construed 127 LAND, how to be described in demise . . .24 piece of, ejectment will lie for, when . . 24 general occupation of, what is ... 103 LANDLORD, jus dispnnendi in . . . .147 by common law cannot be sole defendant, qucere 226. 228 who may defend as, under 11 Geo. 11. c. 19. 227, &c. may defend in tenant's name . . . 233 how to appear as . . . . .238 how to proceed if improper person admitted to defend as 232 when defendant, judgment how signed 233, 234. 239 error, how brought by .... 312 evidence in ejectments by on termination of lease . 277 notice to quit . . 278 forfeiture of lease . 282 LATITAT 224 LAY IMPROPRIATORS, evidence by, for tithes . 274 LEASE, by cestui que trust, no bar to trustee . . 85 possession under treaty for, will not create a tenancy 117 when tenancy created under a void . . 107 when entry necessary, upon a forfeiture, to avoid 174 cannot exist without a reversion . . .163 who may make a joint .... 186 determinate generally at third or sixth years, how construed . . . . .129 assignment of, when presumed . . . 283 forfeiture of Vide Covenant. agreement for, what words will create . 108, &c. vidence by landlord in ejectment, on expiration of 277 forfeiture of ?sr. 404 INDEX. in ancient practice, actually executed . 10. 178 in modern practice, feigned only . . .13 confessed by defendant . 233 LIMITATIONS, statute of . . .46 who not within .... 46. 65 quaere, if lord of manor bound by, upon forfeiture by a copyholder . . . . .65 when joint-tenant, &c. affected by . . .55 extension of time in second section how construed, 46. 59, &c. does not operate between trustee and cestui que trust 52 against lord of manor, when . 54 entry not necessary to avoid . . .150 operation of, will bar ejectment . ' . 46. 75 barred by payment of interest on mortgage 53 need not be pleaded in ejectment . . . 242 must be pleaded in action for mesne profits . 333 LIQUORICE, demise of lands producing . . 129 LODGINGS, notice to quit, how regulated . . 131 LUNATIC, may maintain ejectment . . . .88 committee of, cannot . . . .88 service of declaration upon '. . . 215 stat. 21 Jac. I. c. 16, does not run against . 46 M. MADDER, demise of lands producing . . 129 MAINTENANCE . . . 10. 178 (o) MANOR, ejectment will lie for a . 25 MANOR, Lord of a may maintain ejectment on a forfeiture, when . 63 evidence by, on a forfeiture . . 264 on a seizure, pro defectu ienentii . 284 in ejectment for mines . . 285 quaere, if 21 Jac. I. c. 16. runs against a . . 65 qucere, if entitled to defend ejectment . . 232 MARRIAGE, how proved . . . .256 MESNE PROFITS, action for, when invented . 328 INDEX. 405 MESNE PROFITS, action for, Page nature and uses of . 328 may be waived for assumpsit for use and occupation, when 329 for debt on 4 Geo. II. c 28. . 329 11 Geo. II. c. 19. quaere 329 (q) may be brought pending error . . . 329 is bailable at discretion .... 329 must be brought, by whom . . . 330 against whom . . . . 331 declaration in, how framed . . . 332 pleas in, what are good .... 333 money cannot be paid into court in . . 333 evidence in, vhen profits antecedent to demise are recovered 333, 334 subsequent to demise . 334,335 damages in, have reference to time of defendant's occupation 331 not confined to rent of premises . . 337 may include costs of ejectment . . 338 profits before fine avoided, not recoverable as 336 costs in, second ejectment staid till paid . . 321 judge must certify, if under 40s. . . 338 when unnecessary after error . . . 339 MESSUAGE, ejectment will lie for . . .23 part of . . . % . 24 notice to quit, how regulated . . . ISO rent must be demanded at, when . . 149 MICHAELMAS, notice to quit at generally, how construed . . 127 holding generally from, how construed . . 127 MILLS . ... . . .28 MINES ..... 26. 285 MOIETY, undivided, cannot be a disseisin ef . . . .55 recoverable on demise of whole . . .187 MOOR and MARSH . 25 406 INDEX. MORTGAGEES, fage may maintain ejectment, when . , .62 when required to give a notice to quit . 106, &c. how protected by 4 Geo. II. c. 28. . .164 may defend as landlords . . . . 231 proceedings by, when staid under 7 Geo. II. c. 20. 324, &c. evidence in ejectments by ... 283 assignee of Vide Assignee. MORTGAGOR, not tenant to mortgagee .... 106 competent witness for mortgaged lands 251, 252 tenant of, need not give notice of ejectment by mortgagee 228 qucere, if liable for mesne profits . 331, 332 when tenant to mortgagee . . 106 MOUNTAIN . . . . . .22 N. NONSUIT, for not confessing lease, &c. how to proceed on . . 289, 290 error cannot be brought after . . 312 costs, how recoverable on . . 300, 301 when not recoverable on . . 301 lessor liable to before signing of consent rule . 240 NOTICE TO APPEAR, to whom to be addressed . . . 205, 206 by whom to be subscribed . . . 207 time of appearance of tenant, how regulated by 206, &c. may be amended .... 207, 20C how framed in ancient practice . . 11. 178 qucere, if necessary in inferior courts . . 180 NOTICE OF TRIAL, same as in other actions .... 245 proceedings staid after NOTICE TO QUIT, origin and history of . !02, &c. must be given, in common tenancies, from year to year . 103 under implied tenancies from year to year . 107 INDEX. 407 NOTICE TO QUIT, Pag. to personal representatives, when . . HP is not necessary, at expiration of lease . . 102 from mortgagee to mortgagor . 106 when tenant attor.ns to another . .119 to under-tenants of mortgagor, when 106. 331 from assignee of mortgagee, when . . 107 time of giving . . . 103.129-133.136 time for expiration of in common tenancies . ' 129- 133 in cases of lodgings .... 131 under implied tenancies . . . 133 particular customs, or agreements 131, &c. when tenant enters at several times . . 136 irregularity as to, how waived . . 280 generally, at end of current year, good . .132 when to be so framed . . .132 on a particular day, must be day tenancy began . 133 by whom to be given . . . 120, &c. to whom to be given . . . 122, &c. how to be served ..... 123 framed .... 124, &c. by parol, when good .... 124 must be in writing, when .... 124 how to be addressed . . . .125 must not be alternative or ambiguous . . 125 what so deemed . . . 125, &c. must contain all things comprised in the demise 128 may be waived, and how . . . 139, &c. may be given by tenant . . . .145 implied tenancy, when rebutted by . .117 service of, how to be proved . . 278, &c. when and how evidence of commencement of tenancy, 280,&c. power of giving, necessarily incidental to tenancy from year to year 103. 108, 109 evidence necessary in an ejectment on . 278, &c. subscribing witness to, unnecessary . 1*5 408 INDEX. O. OCCUPANT, special . 73 ORCHARD 20 OUSTER, actual, what acts amount to . . .55 evidence of, when necessary . 56. 178. 276 consent rule substitute for, when . 234, 236 of plaintiff, how stated in declaration . 198, &c. nonsuit for not confessing . 232, 233 of tithes, how laid . . . 200 OVERSEERS of the poor, service of declaration upon 213 when demise should be laid by 191 P. PANNAGE 20 PARCENERS, may maintain ejectment against each other when 55. 88 when affected by 21 Jac. 1. c. 16. . . .57 demise by, how laid . . . .186 entry of one is entry of all . . . . 97 possession of one is possession of all . 55.97 what acts of, are ousters of companions . . 54 fine by one no ouster of others . . .54 must all join in notice to quit . . 120, 121 notice to quit to one will bind all, when . .123 service of declaration on one, good against all . 212 special consent rule, when granted to . . 236 evidence in ejectments by ... 276 may bring action for me.sne profits . . 334 PARISH REGISTERS, when evidence, and for what 264 PARISH, need not be stated in demise . . . 195 if stated material ..... 196 what description of sufficient . . 196,197 how stated when more than one . . . 197 amendment of permitted .... 205 PARSON, cannot bring ejectment for glebe after sequestration 80 INDEX. 40y P VRSON, Page cannot defend for right to perform divine service 233 evidence in ejectments by . . . . 273 PARTICULARS of breaches, defendant entitled to . 31? PASSAGE-ROOM ..... 23 PASTURE OF SHEEP .... 20 PEASE, acres of . . . .35 PEDIGREE when an how proved . . 253, &c. PEER, attachment against, how granted . . 304 PERSONAL REPRESENTATIVES, may maintain ejectment . . . .72 not on 4 Geo. II. c. 28. if land devised 159 must give notice to quit .... 1^0 can take advantage of a forfeiture, when 171, 172 included generally, in proviso for executors to re- enter 121, 122 are not hound by consent rule . . 288, 289 entitled to costs, when . . . 302 liable for costs, when . . . 303 consent of, when necessary to a devise . . 72 evidence in ejectments by ... 271 not liable for mesne profits, when . .331 PLEA, of general issue is not guilty . . . 242 special, seldom pleaded .... 242 to jurisdiction allowed .... 243 ancient demesne pleadable in ejectment . . 244 how pleaded . . . 244 accord and satisfaction, formerly a good . 242 (/) of release by defendant, good formerly . . Ibl lessor of plaintiff cannot now be pleaded 2-15, 246 puts darrien continuance . . . 245, 246 rightly entitled, not a nullity . . 242 (i) signing judgment for want of . . 242,243 withdrawn, judgment how entered after . 245, 246 rn action for mesne profits, of general issue is not guilty . . . 333 52 4iu INDEX. PL I'. A. Page in action for mesne profits, statute ofliraitations, good . . 333 bankruptcy, not good . . . 333 PLEA-ROLL, death of defendant suggested on . 298 POOL OF WATER .... 18 POSSESSION, adverse, what will amount to . . . 47, &c. for twenty years, good title in ejectment . 76 vacant, ancient practice necessary on, and why . 177 premises must be entirely deserted to constitute 177 (&) formal proceedings on . . .178 prima facie evidence of property 29 priority of, q. if good title in ejectment . 31 (M) how to be delivered by sheriff . . 21. 307 lessor of plaintiff must be entitled to . . 33 recovery in ejectment is of the . . . 294 who have a joint ..... 186 of one joint tenant. &c. is possession of all . 55 of defendant how proved .... 248 POSTEA, how indorsed, if defendant will not confess . . 289 if some of several will not . . 290 when costs taxed on .... 300 POSTHUMOUS SON, demise by, when laid . . 190 PRACTICE, ancient, general detail of . . . .9, &c. inconveniences attending . . .11 when now necessary .... 177 how to seal lease, &c. in . . 178, 179 how to proceed to judgment in . . 179, 180 no person admitted to defend in . . .179 PRACTICE, modern, when invented . . . . .13 outline of . . . .13 not applicable, to vacant possessions . .177 in inferior courts . 177 INDEX. 411 PREBEND AL-STALL .... PREMISES, how described in demise . . . 20. 195, &c. mis-description of, when fatal . . .196 PRIM A TONSURA . . . . .19 PROBATE OF WILL, when evidence, and when not 269, 270, 271 PROCEEDINGS, staying of, how and when staid, under 4 Geo. II. c. 28. 157, &c. 7 Geo. II. c. 20. 28, &c. staid, when variance between issue and record . 290 until particulars of breaches delivered . 317 when staid, until security for costs given, in action of ejectment . 318 in action for mesne profits 330 in second ejectment, till costs of first paid . 319, &c. action for mesne pro- fits paid . . 3^2 pending error in first . 323 not staid in second ejectment when party in custody 322 how staid, when two ejectments are depending at once 323 several ejectments on one title 323 PROCESS not sued out in ejectment . . . 184 PROVINCIAL TERMS, premises described by 21 PROVISO for re-entry- See Covenant. PUISpARRlEN CONTINUANCE . . . 245 PUR AUTRE VIE, estates held . . 73 Q. QUARE EJECIT INFRA TERMINUM, writ of . 3 QUARE LMPEDIT, patron must resort to, when . 273 QUARTER OF LAND, . . . 22 R. RECEIVER IN CHANCERY, may give notice to quit .... 121 service of declaration upon, not good . . 2L3 41S INDEX. RECORD, . p ag e how made tip ..... 245 variance between issue and, how to proceed when 290 RECTORS, may maintain ejectment, when . . .80 evidence in ejectments by . . . . 273 RE-ENTRY, proviso for, origin of . . . . .146 holding not adverse if not enforced . 51, 52 operates only during the lease . . . 176 for rent in arrear, forms at common law upon . . .149 when now necessary 150. 156 how and when to proceed upon, under 4. G. II. c. 20. 155, &c. evidence in ejectment upon . . .281 for breach of covenant Vide Covenant, cannot be reserved to a stranger ... 173 RE-ENTRY, right of, how waived . 139, &c. 173, &c. REGISTER, PARISH, when evidence . 254 REMAINDERMAN, when required to give a notice to quit . 107. 117 time at which such notice must expire . .133 for entry of, to avoid a fine . . .93 laches of one no prejudice to another . . 93 not competent witness in ejectment . . 250 RENT, receipt of, when tenancy created by . 104. 107 notice to quit waived by, when . 139, &c. forfeiture waived by, when . . 173 by feme, after separation from baron 114 distress for, when waiver of notice to quit . 143, 144 non payment of, proviso for re-entry for Fide Proviso. increase of, new tenancy not created by .135 refusal to pay, when disclaimer of tenancy . .119 usual notice to quit required though payable quarterly 132 double, action for . . . . .143 in arrear, how recoverable under 4 Geo. II. c. 28 150 INDEX. 413 RENT, . Page forfeiture by reason of. how waived . 160 not payable, when estate from which it arises extin- guished 172 notice to produce receipts of ... 278 action for double . . . .143. 329 (gr) RENT-CHARGE, grantee of, may bring ejectment, when 78 REPLICATION, rule for, when granted . 244. 2^5 REPLY GENERAL, defendant when entitled to . 2^9 REPUTATION, when evidence . . . 254 RESTITl TION, writ of . . .225 REVERSION, assignee of Fide Assignee. REVERSIONER, when required to give a notice to quit . 107- 117 time at which notice to quit by, must expire . 133 when within 32 Hen. VIII. c. 33. . . . 43 time for entry of, to avoid a fine . . .93 may take advantage of a forfeiture, when . . 172 RIVULET 18 ROOM ...... 24 RULES OF COURT, Hilary, 1649. .... 242 Michaelmas, 1654. ... 178 (o) Trinity, 14 Car. II. . . . . 223 15 Car. II. . . . . 235 18 Car. II. . . . . 242 32 Car. II. . . . . 221 Michaelmas, 33 Car. II. . . 223 31 Geo. III. . . .222 Easter, 48 Geo. III. . 222 S. SCIRE FACIAS, when necessary in ejectment 311. 339 SEIZIN IN FEE, how proved . 252 SIGNATURE, to will . . . .261 SOCAGE -Vide Guardians. STABLE 23 414 INDEX. STATUTES, 13 Edw. I. c. 24. jjjK f . .5 4 Edw. III.c. 7. . . . 72 8 Hen. VI. c. 16. . . . 79 18 Hen. VI. c. 6. . . .79 4 Hen. VII. c. 24. . . .90 11 Hen. VII. c. 20. . . . . 38 27 Hen. VIII. c. 10. . . 80, &c. 32 Hen. V11I. c. 1. . . . . 270 32 Hen. VIII. c. 7- . . . .16 32 Hen. VIII. c. 28. . . . . 38 32 Hen. VIII. c. 33. . . . . 43. 46 32 Hen. VIII c 34. . . . .74 2 & 3 Edw. VI. c. 13. . 80 13 Eliz. c. 7- . .69 13 Eliz. c. 10. . . . . 195 21 Jac. I. c. 16. ... 46. 100 2 Car. II. c. 24. . . . 68 16 & 17 Car. II. c. 8. . . 313. 339 17 Car. II. c. 8. . . . 298 19 Car. II. c. C 257 29 Car. II. c. 3. . . 72. 108. 259 5 & 6 Wn>. III. c. 12. ... 298 8 &9 Wm. III. c. 11. . . 298. 304 10 & 11 Win. HI. c. 16. . . 190 4 Anne, c. 16. . 99 8 Anne, c. 14. . . . . 144 4 Geo. II. c. 28. . 126. 143. 147- 150. 221. 282 1 1 Geo. II. c. 19. . 143. 161. 227. 239- 329 26 Geo II. c. 6 266 9 Geo. III. c. 16. . . . 46.78 31 Geo. III. c. 35. . . . .265 43 Geo. III. c. 75. . . . 88 49 Geo. III. c. 121. . . . .333 55 Geo. III. c. 1<<4. . .270 STATUTE MERCHANT Tide Conusee. SUBSCRIBING WITNESSES, notice to quit should not have, and why . . 125 INDEX. 415 SUBSCRIBING WITNESSES, Page to devise of freehold, must be three . . 260 who may be . . 265 SURRENDER, of term when presumed . . . .87 of copyholds, how proved . . . 257- 270 T. TENANTS, joiut and in common. may maintain ejectment against co-tenants, when 88 wlii-n affected by 21 Jac. I. c. 16. . . 46 demise by, how laid .... 186 entry of one is entry of all . . 97 possession of one is possession of all . .55.96 what acts of, are ousters of companions, 55, &c. fiur by one no ouster of others . 56. 96 how notice to quit should be given by . 120 notice to quit to one will bind all, when . 123 service of declaration upon one good against all 212 special consent rule, when granted to . 2~>6 evidence in ejectments by . . 275 may bring action for mesne profits against co- tenants . . . 330, 331 in tail, may discontinue their estates, and how 34, &c. maintain ejectment . . .61 equitable cannot make leases . . 86 fine by, when avoided by entry . . 93 for life, may maintain ejectment . . .61 entry necessary to avoid fine levied by . 86 not necessary to avoid fine accepted by 96 estates of, determinate by entry only 174, 175 from year to year, may maintain ejectment . . .61 give notice to quit . . .145 origin and history of . . . 102, &c. estates of, how determined . . 103. 145 41C INDEX, TENANTS, who are implied . . . 107, &c. at will, who were formerly .... 102 who so denominated now . . . 103 mortgagors are not .... IOC tenancy of, how determined . . 116, 117 demise against, how laid . . . 191 in possession, declarations by, as to commencement of tenancies 280 how to serve declaration upon . 209, &c. must give notice of delivery of declaration, when 227 appearance by, how made . . . 238 how to act if material witnesses . . 288 service of, declaration upon one of two, good against both .... 212 not competent witnesses, whrn . . 250 may dispute landlord's title, when . 32, 33. 247 TENEMENT 22,22(0) TERM, when first recovered in ejectment . , . . 8 in declaration Vide Demise, for years, not within statute of uses . . .Si surrender of, when presumed . . 87 outstanding will bar ejectment . . 32 assignment of, not a lease . . 163, 1fi4 notice to quit not necessary at end of 101, 102 TERRE-TENANTS, idre facias in ejectment must be against . .311 TERRIERS, when evidence .... 274 TITHES, ejectment will lie for, and when . . 16. 80 how to be described in demise, . . .26 demise of, how laid . . . .194 ouster of, how laid . , . 200 .evidence in ejectments for ... 273 TITLE LEGAL ..... 32 TOMB-STONE, inscriptions on, proof of death . 256 INDEX. 417 fefi TONSURA PRIM A . ... 19 TOWNSHIP 22 TRIAL, notice of Vide Notice, how to proceed at, when a sole defendant will not confess . 288 some of several will not confess . . 290 old practice in such case 290, (o) variance between issue and record . 290 day of demise posterior to time of . 291 at bar, when and how granted . . . 291 new, how and when moved for and granted . 293 proceedings under 4 Geo. II. c. 28. not staid after 155, 157 TROVER, verdict in, no evidence of possession . 285 TRUSTEES, may maintain ejectment . . . 32, 33 in what cases . 80, &c. demises by, when necessary . . .187 stat. 21 Jac. I. c. 16. runs against when . . 52 TRUSTS, when executed by statute of uses . 75, &c. U. UNDER-TENANT, cannot dispute original lessor's title . . 248 bound by notice to quit to tenant . . . 123 delivery of notice to quit to relation of, not good . 123 UNDERWOOD ... .25 USE AND OCCUPATION, action for, when waiver of notice to quit . . . 144 what mesne profits may be recovered in . . 329 V. VALUE, DOUBLE, action for ... 144 VARIANCE between declaration and issue . . 245 issue and record . . 290 verdict and judgment . . 295 VENIRE, how awarded when one defendant dies . 299 VENUE 186 VERDICT, is not evidence in second ejectment . . 294 53 418 INDEX. VERDICT, Page is ground of judgment .... 294 every intendment made to support . 295, &c. title defectively set out, cured by . . 297 entered for defendants who do not appear . . 290 tumble, will cure misjoinder of assault and battery with ejectment 181 VESTRY 24 VICAR, may maintain ejectment, when . . .80 evidence in ejectments by . . . . 273 W. WAIVER Vide Notice to quit and Covenant. WASTE, can only be committed of thing demised . .167 rule not to commit pending error . . . 315 encroachment on, qucere to whom it belongs . 53 inclosure from . . . . .65 WATER-COURSE 18 WIDOW may bring ejectment for her free bench . 67 not for dower before assign- ment 68 WIFE. Vide Feme Covert. WILL, forms necessary to pass freeholds by . 260, &c. how proved . . . 267 what sufficient to pass copyholds . . . 270 copy of, when evidence .... 269 probate of, when evidence . . . 271 when not .... 269 WITNESSES, when incompetent from interest . . . 250 to a devise of freeholds, how many necessary .... 260 mode of attestation of ... 262 who may be . . . . . 265 PRACTICAL FORMS. AFFIDAVIT, Pa f e to move for judgment against casual ejector . 345 of executing power of attorney . . . 343 of service of declaration upon *ne tenant only .... 351 when several tenants are in possession . . 352 service is upon one tenant and wife of another 353 upon stat. 4 Geo. II. c. 28. ... 358 for rule for tenant to confess lease and entry only 359 to accompany plea of ancient demesne . . 362 CONSENT OF ATTORNIES for tenant to be admitted to defend 357 CONSENT RULE, common . . . .358 to confess lease and entry only . 359 DECLARATION by original, on a single demise . 347 on a double demise with one ouster 349 with two ousters 350 JUDGMENT for plaintiff by nil dicit, with a remittitur damna 356 as to part of the premises, and for defendant on a nolle proseqtd as to the residue 3C4 INDEX. Page . LETTER of attorney to enter and seal a lease on the . premises 342 LEASE in ancient practice .... 843 NOTICE to appear in ancient practice . . 344 modern practice . . 548 NOTICE to quit, by landlord to tenant, from year to year 341 by an agent for the landlord . . / 341 where the commencement of the tenancy is doubtful 342 by a tenant from year to year . 342 PLEA of not guilty . . . . . 36l ancient demesne .... 362 POSTEA for defendant on a nonsuit, for not confessing lease, entry, and ouster 363 RULE for judgment for the whole premises . . 354 part only . . . 355 where part of premises are tenanted and part untenanted 355 to authorize tenant to confess lease and entry only 359 for admitting landlord to defend . . . 360 for execution against the casual ejector, where the landlord had been made defendant, and failed at the trial ..... 365 for staying proceedings, till guardian be appointed for infant lessor to answer costs 871 security be given for costs . . . 371 until costs of former action in another court be paid 371 on payment of mortgage money, &c. . . 372 rent, &c. . . . . 372 WRIT, original and return thereto . . 346, 347 of habere facias possessionem '. . . 365 INDEX. 421 WRIT, Page on a double demise .... 366 and jferi fmcias in one .... 367 capias ad sutisfaciendum in one . S68 including costs in error . . 368 of restitution ..... 369 of cire facias for plaintiff .... 369 THE END. at ^ DC SOUTHERN REGIONAL LIBRARY FACILITY A 000 703 762 5