UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 TREATISE 
 
 ON THE 
 
 PRINCIPLES AND PRACTICE 
 
 OF THE 
 
 ACTION OF EJECTMENT, 
 
 AND 
 
 THE RESULTING ACTION FOR 
 
 MESNE PROFITS. 
 
 THE THIRD EDITION, 
 WITH CONSIDERABLE ADDITIONS 
 
 BY JOHN ADAMS, 
 
 SERJEANT AT LAW. 
 
 LONDON: 
 SAUNDERS AND BENNING, LAW-BOOKSELLERS, 
 
 (SUCCESSORS TO J. BUTTERWORTH AND SON,) 
 
 43, FLEET STREET. 
 
 1830.
 
 T 
 
 LONDON: 
 IBOTSON AND PALMER, PRINTERS, SAVOY STREET, STRAND.
 
 PREFACE 
 
 TO THE 
 
 THIRD EDITION 
 
 THE peri6d which has elapsed since the publication 
 of the Second Edition of this Treatise, has been 
 marked by important changes in the practice of the 
 Action of Ejectment, as well as in other branches of 
 our law. These changes are incorporated in this 
 Edition ; and they will be found to comprise many 
 useful alterations, especially in the regulation of the 
 Action as between Landlord and Tenant. 
 
 From the practice which has of late years pre- 
 vailed, of giving publicity to every adjudged case, 
 however special the facts, or self-evident the pro- 
 positions, the Author has been compelled to add 
 above two hundred new cases to the present Edition. 
 Some of them have been inserted only because 
 the Author could not venture to omit them ; but 
 others will be found which determine points before 
 
 a 2
 
 iv PREFACE. 
 
 doubtful, and many which contain valuable elucida- 
 tions of principles heretofore obscurely laid down, 
 or imperfectly understood. 
 
 The whole work has also been carefully revised ; 
 and the Author trusts that his increased experience 
 has enabled him materially to diminish its imper- 
 fections : that experience has not however removed 
 the diffidence with which he first offered his Treatise 
 to the profession, nor tended to lessen his grateful 
 recollections of the kind indulgence with which the 
 former Editions were received. 
 
 12, SERJEANT'S INN, 
 Nov. 1, 1830.
 
 PREFACE 
 
 TO THE 
 
 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 over-ruled, or altogether inapplicable 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 in-
 
 PREFACE. 
 
 vented for the purposes of individual justice, en- 
 deavoured to mould it into an equitable remedy, 
 and to regulate it by maxims, in some degree in- 
 dependent of the general rules of law, as well as 
 of the practice in other actions. The erroneous 
 principles on which this system was founded were 
 pointed out by the late LORD KENYON ; and a ma- 
 terial 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 lumi- 
 nous decisions, the remedy has been placed upon 
 its true principles ; and he lived to see a system 
 nearly completed, which, uniting the equitable 
 fictions of the particular action with the general 
 principles 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 
 uniformly maintained, and ably illustrated, by the 
 more recent decisions of the different courts. 
 
 The Author has enlarged upon these circum- 
 stances, in order to account for the personal 
 judgment he has, in some instances, found it ne- 
 cessary to exercise with regard to decisions an- 
 terior to the time of Lord KENYON ; many cases
 
 PREFACE. Vll 
 
 v 
 
 being still extant as authorities, which seem wholly 
 inconsistent with the modern principles of the ac- 
 tion 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 re- 
 specting notices to quit, and the manner of pro- 
 ceeding on the forfeiture cf a lease, at the same 
 time explaining the principles upon which those 
 
 directions are founded. 
 
 / 
 
 The evidence necessary to support and defend 
 the action in common cases has also been con- 
 sidered : and instructions for proceeding according 
 to the ancient practice have been added, as far as 
 can be necessary at the present time. 
 
 For practical forms in ejectment, the reader is 
 referred to those contained in Mr. TIDD'S Appen- 
 dix to his Practice of the Court of King's Bench : 
 a collection which appears to the Author too com- 
 plete to require addition, and too accurate to be 
 susceptible of improvement. 
 
 5, SERGEANT'S INN, 
 May 1, 1812.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 Of the Origin Progress and Nature of the Action of Eject- 
 ment. 
 
 Page 
 
 Definition of the action . . . . .1 
 
 Its origin . . . . . 8 
 
 History of its ancient practice . . . .11 
 
 modern practice ... ... ,. .15 
 
 CHAPTER II. 
 
 Of what things an Ejectment will lie, and how they are to be 
 
 described. 
 
 Of what things an ejectment will lie ;. . . 18 
 
 How they are to be described . . . 23 
 
 CHAPTER III. 
 
 Of the Title necessary to support the^ Action of Ejectment. 
 
 Of the general requisites of title '-....- , . 32 
 
 Of discontinuance . . j j . . 35 
 
 Of descent cast 41
 
 X CONTENTS. 
 
 Page 
 
 Of the statute oflimitations . . . . 45 
 
 Of the persons who by reason of their several titles may 
 
 maintain ejectment . . .59 
 
 Tenant for years, for life, in tail, in fee . . 59 
 
 Mortgagee . . . . .60 
 
 Lord of a manor . . . 61 
 
 Copyholder . . . . .63 
 
 Lessee of a copyholder . . 65 
 
 Widow for her free bench " . . .65 
 
 Guardian . . . . 66 
 
 Infant . . . . . 67 
 
 Assignee of a Bankrupt . . .67 
 
 an Insolvent Debtor . . . 67 
 
 Conusee of a statute merchant, or staple . 69 
 
 Tenant by elegit . . . 69 
 
 Personal representative . . .70 
 
 Devisee . . . . 71 
 
 Grantee of a rent-charge . . .71 
 
 Assignee of the reversion . . 72 
 
 Adverse possessor for twenty years . .77 
 
 Corporation . . . 79 
 
 Churchwardens and overseers of the poor . 79 
 
 Rector or vicar ' . . . .80 
 
 Trustees . . . . 81 
 
 Joint-tenant, &c. ... . . .91 
 
 Lunatic . . . . . . 91 
 
 Person claiming under an award .. . 91 
 
 CHAPTER IV. 
 
 Of the Cases which require an actual Entry upon the Land be- 
 fore Ejectment brought. 
 
 In what cases an entry must be made .-- 93 
 
 By whom the entry must be made . '. ; 99 
 
 Mode of making the entry . . '. .100
 
 CONTENTS. XI 
 
 CHAPTER V. 
 
 Of the Action of Ejectment as between Landlord and Tenant. 
 
 Page 
 
 Of the notice to quit, 
 
 Origin and history of . . ., . .. 105 
 
 When necessary, and when not . . . 108 
 
 By whom, and to whom to be given . .* 126 
 
 Service of . . . 131 
 Form of . .. . ..-...* . 132 
 
 Period of its expiration . :. . ;.' . 137 
 
 How waived . . . . . 149 
 
 Of provisoes, &,c. in leases for re-entry, 
 
 Origin and history of . ., . . 157 
 
 What covenants are valid . . , . 158 
 
 Proceedings on, for rent in arrear . . .160 
 
 Covenants, how broken . . . .177 
 
 Who may bring ejectment on . . 189 
 
 How waived . . . . 192 
 
 Period of their operation . '. . .198 
 
 CHAPTER VI. 
 
 Of the Cases in which the Ancient Practice is still necessary. 
 
 On a vacant possession . V '' V' . 199 
 
 In an inferior court . / . . ' ; 199 
 
 How to proceed . . . < '. . . 200 
 
 CHAPTER VII. 
 
 Of the Declaration in the Modern Action of Ejectment and the 
 Notice to appear. 
 
 Of the declaration, 
 
 How entitled 207
 
 Xii CONTENTS. 
 
 Page 
 
 Of the declaration, 
 
 Venue .... 209 
 
 Demise .... 
 
 Entry . . .221 
 
 Ouster ... . 222 
 
 Of amending the declaration . 224 
 
 Of the notice to appear . . . " ,. 229 
 
 CHAPTER VIII. 
 
 Of the Service of the Declaration, and Proceedings to Judg- 
 ment against the Casual Ejector, when no Appearance. 
 
 Of the service of the declaration . . . 234 
 
 the affidavit of service . . . . 242 
 
 moving for judgment . . . 247 
 
 the time for appearance . . . 248 
 
 filing common bail 1 . 250 
 
 signing judgment . . . . 251 
 
 setting aside judgments . . 252 
 
 CHAPTER IX. 
 
 Of the Appearance Plea and Issue. 
 
 Who may appear ..... 254 
 
 Of the consent rule . . . ... 262 
 
 consolidation rule . . . - . 264 
 
 How to appear . , . . . . 265 
 
 Of the proceedings after appearance . % ^ . 269 
 
 the plea . . . . . 270 
 
 the issue ...... 273 
 
 CHAPTER X. 
 
 Of the Evidence in the Action of Ejectment. 
 
 On the part of the lessor, 
 
 general points relating to / . . / 276
 
 CONTENTS. Xlll 
 
 Page 
 
 On the part of the lessor, 
 
 By Heirs '. 281 
 Devisees . 
 
 Tenants by elegit . . . .301 
 
 Conusees of statutes merchant and staple . 301 
 
 Rectors and vicars . /' V . 302 
 Guardians ..... 305 
 
 Assignees of bankrupts .' . . 305 
 
 insolvent debtors . 306 
 
 Personal representatives . . 306 
 Mortgagees ... . 306 
 
 Lords of manors . . . .' 307 
 
 Copyholders . . 309 
 
 Lessees of copyholders . 309 
 
 Landlords . . . .310 
 
 Assignees of reversion . . . 318 
 
 On the part of the defendant . . 319 
 
 CHAPTER XI. 
 
 Of the Trial and subsequent Proceedings. 
 
 Of the trial . . . . . . 320 
 
 judgment j , . .' . . . 327 
 
 costs - . . . . 335 
 
 execution . . . . . 339 
 
 writ of error . . . . . 347 
 
 bringing a second ejectment . . . 351 
 
 CHAPTER XII. 
 
 Of Staying the Proceedings in the Action of Ejectment. 
 
 Until particulars of breaches be given . . . 353 
 
 security be given for costs . . . 353 
 
 costs of a former ejectment be paid . . 355 
 
 When two actions are. depending for same premises . 361 
 
 Upon Stat. 7. Geo. II. c. 20 . . . 361 
 
 Stat. 4 Geo. II. c. 28 366
 
 XIV CONTENTS. 
 
 CHAPTER XIII. 
 Of the Statutes 1 Geo. IV. c. 87, and I Wm. IV. c. 70. 
 
 Page 
 
 Of the Stat. 1 Geo. IV. c. 87 . . . . 367 
 
 Of the Stat. 1 Wm. IV. c. 70. . 376 
 
 CHAPTER XIV. 
 
 Of the Action for Mesne Profits. 
 
 Origin and nature of . . V . . 379 
 
 By whom to be brought . . . 382 
 
 Against whom . . . . . 383 
 
 Of the pleadings . . .. * , 384 
 
 evidence . . . . . 388 
 
 damages . . . . .391 
 
 costs , . . . : . . 393 
 
 APPENDIX OF FORMS I ... 395 
 
 . " . . T ' . . . 404
 
 TABLE OF CASES CITED. 
 
 A. 
 
 Abbolt, Wilson v. 
 Ablett v. Skinner . 
 Abrahams, Doe, d. Biddle v. 
 Adams, Fitchet v. . 
 
 PAGE 
 . 140 
 
 . 221 
 . 276 
 . 100 
 221, 222 
 . . 289 
 . 204 
 290, 293 
 388, 389 
 v. . 168 
 . 298 
 109, 196 
 . . 203 
 . 32 
 . 381 
 r. 21, 30 
 . 355 
 . . 30 
 . 69 
 3.56, 357 
 . 245 
 . 348 
 . 229 
 . 232 
 . 207 
 . . 207 
 . 237 
 . . 243 
 . 236 
 . . 354 
 . 22 
 . 375 
 . . 29 
 . 338 
 . 27 
 . . 207 
 . 263 
 
 Anon (11 Mod. 354) 
 (12 Mod. 313) 
 (12 Mod. 211) . 
 (12 Mod. 384) . 
 (M. T. 1817) . 
 (Ld. Rayd. 728) . 
 - (Salk 257) 
 
 PAGE 
 
 . 280 
 . 238 
 255, 2/V? 
 . 286 
 . . 232 
 . 324 
 . 229 
 355, 357 
 204, 382 
 . . 289 
 . 101 
 . . 339 
 . 158 
 . . 354 
 . 330 
 . 295 
 . . 257 
 . 365 
 . 136 
 . 14 
 v. . 227 
 . 151 
 . . 198 
 . 75 
 . 365 
 . . 38 
 v. .115 
 . 2;> 
 . . 299 
 . 355 
 . 304 
 . . 292 
 . 292 
 . 100 
 . 100 
 . 355 
 . 76 
 . 29 
 
 
 - (Salk 255) 
 
 Addison v. Sir John Otway 
 Addy v. Grix 
 Aislin v. Parkin . 212, 382, 
 Alexander, Doe, d. Schufield 
 
 (Salk. 260) 
 . C*skin 174A 
 
 (Skin. 412) . 
 (2 Sid. 155) 
 ... . - (1 Vent 18) 
 
 Allen, Doe, d. Shephard v. 
 v. Foreman 
 
 (1 Wils. 130) . 
 (Yelv. 166.) 
 Ansty v. Dowsing 
 Archer, Lamb v. 
 
 , Harris v. . . 
 Alker, Goodtitle, d. Chester 
 Alston, Doe. d. Selby v. . 
 Andrews, Whittinghaui v. 
 
 .... _ Tlnp A TJnHrl v 
 
 Argoll v. Cheney . 
 Armitage, Doe, d. Beaumont 
 Armstrong, Messenger v. 
 Arnsby v. Woodward 
 Arthur, Vivyan v. . . 
 Ash, Felton v. . 
 Astlim v. Parkin 
 Ashburner, Roe, d. Jackson 
 Ashworth v. Stanley . 
 Askew, Carey v. 
 Atherley, Doe. d. Hamilton 
 Atkins v. Hatton . 
 Atkinson, Grayson v. 
 Attorney General v. Barnes 
 Audley's case . 
 v. Pollard . 
 Austine v. Hood 
 Awder v. Nokes 
 Aylott, Cole v. . 
 
 Angel, Keene, d. Angel v. 
 Anon (1 Barnard, 330) . 
 (2 Brown, 253) 
 (1 Chitty, 573) 
 
 . (9 fhittv 171^ 
 
 ('2 Chitty, 172) 
 (2 Chitty, 173) . 
 (2 Chitty, 176) 
 (2 Chitty, 181) . 
 (2 Chitty, 182) - . 
 (1 Cowp. 128) . 
 
 . . . I of T\-l nz\ 
 
 (ID. &R. 435) 
 
 ^jjyer, no; 
 ( 1 Freem, 373) 
 (3 Leon, 210) 
 
 (fi Mnrl <?<J9'\ 
 
 (7 Mod. 39)
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 U. 
 
 Badtitle, Doe v ..... 245 
 -- , Goodtitle, d. Gardner v. 269 
 -- , - , d. Price v. . 207 
 , d. Read v. .236 
 , d. Roberts v. 238 
 -- j - , d. Sandys v. 246 
 -- , - , d. Wanklin v. 243 
 -- , Goodright, d. Ward v. 273 
 -- , Lackland, d. Dowling v. 232 
 Badger v. Floyd . % . 351 
 
 Badmering, Pike v. . . . 298 
 
 Bagshaw, d. Ashton v. Toogood 239 
 Bailey, Tiley v. . . . 337 
 
 Baker, Whitlock v. . . . 286 
 
 -- v. Mellish . 88, 276, 310 
 
 -- v. Roe . . .19 
 
 - , Doe, d. Green v. .127,128 
 Bally v. Wells .... 73 
 Baldwin, Goodtitle, d. Parker v. 78 
 Ball, Partridge v. . .60,216,217 
 Baldwin, Brooke, d. Mence v. . 342 
 
 - v. Wine . . 29, 30, 81 
 Bank of England, Glynn v. . .304 
 
 Banks, Doe, d Bryan, v. 
 Barnes v. Bulmer 
 v. Peterson 
 
 -- , Attorney General v 
 Barrett, Smith v. . 
 Barber, Doe, d. Crisp v. . 
 Barclay, Doe, d. Church v. 
 Bartlett, Howard v. . . 
 Barry, Morris v. . 
 
 -- , Morres v. . . 
 
 Barton, Thre'r v. . 
 
 Barefoot v. Fry . 
 
 Barnardiston, Smith, d. 
 
 ger v. . 
 
 Barker, Omichund r. . 
 Barlow, Highmore v. . . 
 Barney, Stocker v. . . 
 Barnaby, Turner v. . . 
 Barwick d. Mayor of Richmond 
 
 194, 198 
 . 239 
 . 24, 25 
 . 292 
 . . 19 
 .32 
 . . 359 
 .66 
 . 210 
 . 323 
 
 .76,190 
 
 . . 352 
 
 Gin- 
 
 339, 357 
 . 295 
 . 203 
 .77 
 
 322, 334 
 
 v. Thompson . . . 276 
 
 Barnard, Murthwaite v. . . 87 
 
 Barlte, Doe, d. Nethercote v. . . 300 
 Bass v. Bradford . . .273 
 
 Bateman, Doe, d. Freeman v. . 192 
 Bath (Earl of) v. Sherwin . .352 
 Batten, Doe, d. Cheney v. 150,154, 
 173, 380 
 Bawden, Right, d. Dean of Wells 
 
 v. . . . . 124 
 
 Baxter, d. Abrahall v. Brown .114 
 --- , Earl, d. Goodwin v. . 318 
 Bayliss, Doe, d.Morland v. 236, 245 
 Beard, Chapman v. . . 303 
 
 , Right, d. Lewis v. . 107, 121 
 Beauchampand Burt, ex parte .201 
 Beauclerk, Renrick r. . . 83, 86 
 Beck, d. Hawkins v. Welsh . 67 
 Bedell v. Constable . . 66 
 
 PAGE 
 
 Bedwell, Thurstout v. . 320, 335 
 Belcher, Thunder, d. Weaver v. 
 
 61, 107, 109, 122, 307 
 
 Bell, Doe, d. Rigge v. 107, 111,144, 
 
 178, 305 
 
 v. Harwood . . 280 
 
 Bellamy, Doe, d. Burrell v. 64, 66, 287 
 Bennett, Doe, d. Lucy v. . . 340 
 Benson, Doe, d. Hall v. . 136, 145 
 Bentley v. Poole . . .113 
 , Thrograorton, d. Fair- 
 fax v. . . . 323 
 Bennington v. Goodtitle . . 24, 25 
 Benion, Legg, d. Scot v. . 130, 132 
 Benson, Pleasant, d. Hayton v. .130 
 Benn d. Mortimer v. Denn . . 359 
 Bengo, Sleaburne v. . . 339 
 Bent, Worrall v. . . . 329 
 Berkley Peerage case . . 285 
 Berrington, d. Dormer v. Park- 
 hurst . . .95, 102, 214 
 Berney, Stocker v. . .77 
 Bery, King v. . . .20 
 Bettison v. Bromley . . . 296 
 Bethill, Floyd v. . . . 343 
 Bevan, Doe, d.Goodbehere v. 180, 181 
 Biggs, Doe, d. Leicester v. 82, 86, 
 
 120,314 
 . 23, 27 
 . 365 
 . 279 
 . . 110 
 
 Bindover v. Sindercombe . 
 Bingham, d. Lane v. Gregg 
 Bingham, Doe, d. Lewis v. 
 Bishop v. Howard r" . . 
 
 Birch v. Wright, 60, 109, 137, 
 
 154, 307, 381 
 Bird, Doe, d. Hellings v. . . 55 
 
 v. Snell . i ' .204 
 
 Birkbeck v. Hughes . . . 245 
 Bissell, Morgan, d. Dowding v. . 117 
 Blades, Harrison v. . . .284 
 Blakey, Clayton v. 107,111,122,178 
 Blackman, Goodwin v. . 219, 221 
 Blackham, Smith v. . . 280 
 
 Bliss, Doe, d. Boscawen v. . . 193 
 Bluck, Doe, d. Morgan v. 34, 81, 341 
 Bodily, Grumble v. 361 
 
 Boner v. Juner . . . 210 
 
 Bond v. Seawell . . . 293 
 
 , Doe, d. Darlington, Earl 
 
 of, v 185 
 
 Boulton, Doe d. Parker v. . 121, 123 
 Bourne, Hunt v. . . . 97, 98 
 
 v. Turner . . . 279 
 
 Bouchier v. Friend . . . 250 
 
 Bradford, Bass v. . . 273 
 
 Braham, Goodtitle, d. Revett v. . 288 
 Breach, Doe, d. Oldershaw v. . 188 
 Bragg, Doe, d. Scales v. . . 279 
 
 Bracebridge v. Buckley . . 183 
 Brandling, Doe, d. Bywater v. . 188 
 Brenton, Doe, d. Carthew v. 358, 361 
 Brewer, d. Lord Onslow v. Eaton 174 
 
 , Doe, d. Byne v. . 204, 274 
 
 Brewster, Hillingsworth v. .19, 261
 
 TABLE OF CASES CITED. 
 
 XV11 
 
 PAGE 
 
 Brewster, Medlicot v. . . 264 
 Brend.Tunstall v. . . .208 
 
 Bright wen. Doe, d.Milner v. . .48 
 Brittle v. Dade . . . 272 
 
 Brice v. Smith . . . 294 
 
 Brickhurst, Ramsbottom v. . SOI 
 
 Britts, Hunter v. . . . 390 
 
 Bristow (Mayor of,) Rex. v. . 199 
 Bridges v. Brooke . . 391 
 
 Britain, Doe, d. Coleman v. . . 68 
 British Museum, Trustees of, v. 
 
 White . . . . 291 
 
 Brown's Case . . 40 
 
 -, Doe, d. Warner v. 106, 107, 
 
 111,122 
 
 , Holmes, d. Brown v. . 326 
 
 , Baxter, d. Abrahall v. .114 
 
 , Doe, d. James v. . . 302 
 
 Brooke v. Bridges . . . 391 
 
 Brooke, d. Mence v. Baldwin . 342 
 Broderick v. Broderick . . 294 
 Bromley, Bettison v. . . . 296 
 
 Brougbton v. Langley . .82 
 
 Bryan, d. Child v. Winwood . 52 
 Brydon, Gates, d. Wigfall v. 33, 95. 
 
 263 
 Buckley v. Buckley . . 256 
 
 , Bracebridge v. . . 183 
 
 Bucknell, Weakley, d. Yea T. 33, 112 
 Budden, Doe d. Nepean v. . . 308 
 Butler, Doe d. Phillips v. . . 142 
 Bugby, Crusoe, d. Blencowe v. . 177 
 Bulmer, Barnes v. . . 349 
 
 Burbury v. Yeomans . . . 26 
 
 Burchett v. Durdant . . 82 
 
 Burghers of Carmarthen, Rex v. 325 
 Burghers, Grimstone, d. Lord 
 
 Gower v. . . 264 
 
 Burne v. Richardson . . . 383 
 
 Burt and Beauchamp, ex parte . 201 
 Bury, Phillips v. . 270 
 
 Butcher, Doe, d. Taggart v. 338, 346 
 Byron, Lord, Deardon v. . . 352 
 
 C. 
 
 Calvert, Doe, d. Ash. v. 150, 289, 315 
 
 v Horsefall . . . 389 
 
 Calcraft, Wadman v. . .171 
 
 Camell v. Clavering . .80 
 
 Capel v. Saltonstall . . 228 
 
 Carleton, d. Griffin v. Griffin . 293 
 Cartwright, d. Denn, Jacklin v. . 137 
 Carter, Doe, d. Mitchinson v. .180 
 
 v.Cromwell .217,218 
 
 Doe d. Kerby v. . . 121 
 
 Carey v. Askew . . . 299 
 
 Casson v. Dade . . . 294 
 
 Cator, Goodright, d. Hare v. 60, 93, 
 
 95, 102, 158 
 
 Challenor v. Thomas . .21 
 
 Chapman T. Sbarpe . . 66 
 
 PAGE 
 
 Cbaworth v. Phillips . . 76 
 
 Cbarnock, Roe, d. Henderson v. 141 
 Chater v. Hawkins . . . 29.5 
 
 Chaplin, Radcliffe v. . . 287 
 
 , Doe. d. Whayman v. 127, 128 
 
 Chapman v. Beard . . . 303 
 Chamier v. Llingon . . 383 
 
 Cheney, Argoll v. . ,{] .-. . 14 
 Checy, Peto v. . . . 204 
 
 Chetwynd.Wyndhamv. . . 295 
 Church, Doe, d. Morgan v. . .136 
 Clavering, Camell v. . . 80 
 
 Clarke, Kinaston v. . 3O5 
 
 -v.Phillips . .101 
 
 , Doe d. Grundy v. . 34, 80 
 
 , , d. Lockwood v. . 181 
 
 , , d. Spencer v. . .366 
 
 , , d. Thompson v. . 53 
 
 Clare, Doe, d. Coore v. . . 1 15 
 Clayton v. Blakey 1 07, 1 1 1 , 1 22, 1 78 
 Clayton's case .... 223 
 Claphara, Holdfast, d. Woollamsv. 65, 
 
 286 
 
 Claxmore v. Serle . * - . 323 
 Cleabourne, Jordan v. ... . 28 
 Ctements, Doe, d. Folkes v. . 62 
 Clerke v. Rowell . . 215, 327 
 
 .Linsey v. . . . 331 
 
 Close's case . . -.-*-..-. 382 
 Clyraer v. Littler . . . 237 
 
 Cock, Doe, d. Lord Darlington v. 
 
 235, 241 
 Cocks v. Darson 
 Cocke, Sherman v. . 
 Cole v. Aylott 
 
 , Taylor v. - 
 
 , Wade v. . 
 
 , Small, d. Baker v. 
 
 Coles, Doe, d. Lewis v. 
 Collins v. Silley 
 Colley, Wilkinson v. 
 Comyn v. Kineto 
 
 v. Wheatley 
 
 , St. John v. 
 
 Coningsby, Lord's case 
 Constable, Bedell v. . 
 Connor v. West 
 
 Congleton, Mayor of, v. Pattison 
 Constable, Parker, d. Walker v. 
 
 106, 125 
 
 . 91 
 
 . 199 
 
 . 29 
 . . 69 
 
 . 66 
 324, 331 
 
 . 226 
 . . 76 
 
 . 129 
 . . 20 
 
 . 20 
 . 23, 24 
 
 . 326 
 . . 66 
 
 24,28 
 74 
 
 Cooke, Ogle v. . 
 Cooke, Higbam v. 
 -, Roberts v. 
 
 Cooper, Doe, d. Tilyard v. . . 
 Cope, Glover v. . 
 
 Copeland, Doe, d. Palmerston v. 
 
 v. Stephens 
 
 Coplestone v. Piper . . . 
 
 Copous, Oakapple, d. Green v. . 
 Corbett, Doe, d. Corbett v. . 
 Cordwent, Goodright, d. Chester 
 
 v. . 150, 174 
 
 Cotterell v. Dutton . . . 58 
 
 b 
 
 297 
 223 
 357 
 260 
 77 
 323 
 69 
 25 
 314 
 301
 
 xvm 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Cottingham v. King . 24, 219 
 
 Cowley, Jemott v. . .71 
 
 Crabb, Smith v. . 264 
 
 Creach v. Wilmot . . 52 
 
 Cread, Doe, d. Cheese v. . 70 
 
 Crick, Doe, d. Lord Macartney 
 
 v. 131, 132 
 
 Crofts v. Pick . .69 
 
 Crocker v. Fothergill . . 20 
 Cromwell's case . . 38 
 
 Crouch, Doe, d. Jones v. .184 
 
 Croker, Evans v. . . 223 
 
 , Stephens v. . .223 
 
 Croft v. Pa wlet .<( .294,298 
 Cromwell. Carter v. . 217, 218 
 
 Crusoe, d. Blencowev. Bugby . 177 
 Cuff, Doe, d. White v. . . 271 
 Cuthell, Right, d. Fisher v. 126, 128 
 Cutts, Jen ny.d. Preston v.236, 244, 246 
 Cutting v. Derby --.<' .383 
 
 D. 
 
 Dacre's case . . 27, 28 
 
 Dade, Brittle v. '.< . 272 
 
 , Casson v. . . 294 
 
 Dale, Smales v. ' . . 54, 98 
 
 , Hooper v. . . 204 
 
 Dann v. Spurrier . . 138 
 
 Danvers v. Wellington . . 26 
 
 , Doe, d. Cook v. 42, 50, 299 
 
 Dancaster, Lovelock, d. Norris v. 259, 
 
 260 
 
 Darby, Right, d. Flower v. 124, 139 
 140, 143 
 
 , Doe, d. Holmes v. . 155 
 
 Darson, Cocks v. . .91 
 
 Davis, Doe, d. Davis v. . . 98 
 Davids, Goodright, d. Walter v. 192 
 Davy v. Smith . . 293 
 
 Davenport v. Tyrrell . . 56 
 Davies, Goodtitle v. * . 245 
 
 , Martin v. . . 261 
 
 v. Moggridge . . 338 
 
 v. Pierce . .281 
 
 , Doe v. .336,385,391,393 
 
 , Roe, d. West v. . 160, 162, 
 
 166, 168, 169 
 
 ,Doe d.Challnorv.52,311,316 
 
 , d. Povey v. Doe . 352, 345 
 
 , v.Purdy . . 223 
 
 Dawson, Roe, d. Saul v. . 341 
 
 Deardon, Keene, d. Byron v. . 51, 83, 
 
 89, 349, 350 
 
 Dean, Fenn. d. Knight v. . 239 
 
 Deakin, Doe d. Lloyd v. . .285 
 Deardon v. Lord Byron . . 352 
 Denton, Doe, d, Stewart v. . 26 
 Denn,d.Brunev.Rawlinsl07,110,124 
 
 , d. Burghes v. Purvis . . 221 
 
 , d. Goodwin v. Spray . 287 
 
 , d. Jacklin v.Cartwright .137 
 , d. Lucas v. Fulford . . 354 
 
 PAGE 
 Denn, d. Wroot v. Fenn . . 272 
 
 , v. White . . 390 
 
 , Far v. . . 332, 333 
 
 , Benn, d. Mortimer v. . 359 
 
 , Fenn, d. Tyrrel v. . 241 
 
 Dent, Savage v. . 199, 205, 235 
 
 Dence v. Doble 
 Derby, Cutting, v. 
 Derrett, v. Kemp 
 Devereux v. Underbill 
 Dillon v. Fraine 
 Dinely, Doe, d. Messiter v. 
 -, Hand v. .''* 
 
 357 
 . 383 
 141, 142 
 . 345 
 . 87 
 . 350 
 . 366 
 
 Dobbs v. Passer . . 252, 267 
 
 Dobson, Hobson, d. Bigland v. . 266 
 
 Doble, Dence v. . . 357 
 
 Dodwell v. Gibbs . . 390 
 
 Doe d. Ambler v. Woodbridge . 193 
 
 ,d. Ash v.Cal vert . 150,289,315 
 
 , d. Aylesbury, (Earl of,) v. 
 
 Roe 
 
 , d. Banning v. Griffin 
 , d. Bass v. Roe '* '-^'\ 
 , d. Baddam v. Roe . 
 , d. Bailey v. Roe 
 , d. Baker v. Woombwell 
 , d. Barnett v. Keene 
 , d. Barber v. Lawrence 
 , d. Batten v.Murless 
 , d. Beaumont v. Armitage . 
 , d. Bedford v. Wheeler 
 , d. (Duke of,) v, 
 
 Kightley 
 
 v. Kendrick 
 
 242 
 284 
 233 
 236 
 237 
 315 
 54 
 192 
 302 
 227 
 192 
 
 135 
 
 144 
 
 d. Bennington v. Hall 
 
 65,213,299 
 . 347 
 . 232 
 . 182 
 276 
 353 
 302 
 32 
 
 , d. Beyer v. Roe 
 , d. Bird v. Roe 
 , d. Bish v. Keeling . 
 , d. Biddle v. Abrahams 
 , d. Birch v. Phillips 
 , d. Bland v. Smith 
 , d. Blake v. Luxton 
 , d. Boscawen v. Bliss . 193 
 
 , d. Bradshaw v. Plowman . 25 
 , d. Bradford v. Watkins . 131, 
 132, 148 
 
 , d. v. (Earl of,) v. 
 
 Roe -.. ! . .374 
 
 , d. Bristow v. Pegge . 33 
 
 , d v. Old . 197 
 
 . d. Brierley v. Palmer . 152 
 , d. Bromfield v. Smith 116,125 
 , d. Brown v. Wilkinson 140, 141 
 , d. Bromley v. Roe . 237 
 
 , d. Bryan v. Banks . 194,198 
 , d. Brune v. Prideaux . 110, 124 
 , d. Bryant v. Wippel .211 
 
 , d. Burrell v. Perkins . 98 
 
 , d. v. Bellamy . 64, 66, 
 
 287 
 
 , d. Burrow v. Reade . 77 
 
 , d. Burdett v. Wright . 89
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 PAGE 
 
 Doe, d. Buross v. Lucas . 132 
 
 , d. Byne v. Brewer . 204, 274 
 , d. Bywater v. Brandling . 188 
 , d. Campbell v. Scott . 140 
 
 , d. Calrert v. Frowd . 125 
 
 , d. Cardigan (Earl of,) v. Roe, 
 
 374 
 , d. Carlisle (Earl of,) v. 
 
 Woodman . . 131 
 
 , d. Cartbew v. Brenton 358, 361 
 , d. Castleton v. Samuel 143, 315 
 , d. Gates v. Somerville . 121 
 , d. Cbadwick v. Law . 355, 356 
 , d. Challnor v. Davies . 52 
 , d. Chaplin v. Wbayman . 127 
 , d. Cheney v. Batten . 150, 154, 
 173, 380 
 
 , d. Chere v. Smith .191 
 
 , d. Cheese v. Creed . 70 
 
 , d. Chippendale v. Dyson . 316 
 
 , d. Church v. Barclay 
 , d. Clarke v. Roe 
 
 , d. v. Grant 
 
 , d. v. Spencer 
 
 , d. v. Trapaud 
 
 . 359 
 . 231 
 . 278 
 67,68 
 . 307 
 . 314 
 . 225 
 . 52 
 . 143 
 . 115 
 97, 392 
 
 , d. Clarges v. Forster 
 , d. Cobbey v. Roe 
 , d. Colclough v. Mulliner 
 , d. Collins v. Weller 
 , d. Coore v. Clare 
 , d. Compere v. Hicks 
 , d. Cook v. Danvers 42, 50, 299 
 , d. Cox v. . . 135 
 
 , d. Colclough v. Halse . 49 
 , d. Coleman v. Britain . 68 
 , d. Corbett v. Corbett . 301 
 , d. Cotterell v. Wylde . 273 
 , d. Courtall v. Thomas . 91 
 , d. Crisp v. Barber . . 32 
 , d. Da Costa v. Wharton 32, 61, 
 65, 70, 110,301 
 , d. Lord Darlington v. Cock 235 
 
 , d. v.Bond 135 
 
 , d. Dagget v. Snowdon . 147 
 , d. Davis v. Davis . . 98 
 
 , d. v. Roe . . 323 
 
 , d. Draper's Company v. 
 
 Wilson . . 277, 331,341 
 , d. Digby v. Steel . 151, 300 
 ,d. Dry v. Roe . . 239 
 
 , d. Ducket v. Watts . 95, 99 
 , d. Durourev. Jones . 58 
 
 ,d. Edwards v. Roe . 244 
 
 , d. Elwood v. Roe . . 237 
 , d. Emmett v. Thome . 302 
 , d. Esdaile v. Mitchell . 213 
 , d. Evans v. Roe . . 172 
 , d. Eyre v.Lamhly . 274 
 
 , d. Feldon v. Roe . . 356 
 , d. Fishar v. Prosser . 55 
 
 ,d. v.Giles . 60,108 
 
 , d. Fenwick v. Roe . 240 
 
 , d. Field v. Roe . . 237 
 
 PAGE 
 
 Doe, d. Fleming v. Fleming . 285 
 
 , d. Foley v. Wilson . 62, 107 
 
 308 
 
 , d. Folkes v. Clements . 62 
 
 ,d. Forster v. Wandlass 168,342 
 
 , d. v.Scott . . 50 
 
 , d. v. Williams . 279 
 
 , d. Foxlow v. Jeffries . 227 
 , d. Freeman v.Bateman . 192 
 , d. Gaskell v. Spry . 182 
 
 , d. George v. Jesson . 58, 59, 285 
 , d. Gibbons v. Pott . . 33 
 , d. Gill v. Pearson . 100, 210 
 , d. Giles v. Warwick . 277 
 , d. Ginger v. Roe . . 263 
 , d. Godsell v. Inglis . 151 
 
 , d. Goodbehere v. Bevan 180, 
 181 
 
 , d. Graham v. Scott . . 89 
 , d. Green v. Baker . 127, 128 
 , d. Grubb v. Grubb . 253 
 
 , d. Grundy v. Clarke . 34, 80 
 
 d. Grocers' Company v. Roe 
 
 252 
 
 , d. Gunson v. Welsh . 277 
 
 , d. Hanley v. Wood . 20 
 
 , d. Hall v. Benson . 136, 145 
 , d. Halsey v. Roe . . 237 
 , d. Hallen v. Ironmonger . 83 
 , d. Hammeck v. Fellis .211 
 
 d. Hamilton v. Atherley 356, 
 358 
 
 , d. v. Hatherley 355, 358 
 , d. Hanson v. Smith . 298 
 
 , d. Hardman v. Pilkington 
 
 225, 226 
 
 , d. Harvey v. Roe . . 239 
 , d. Harwood v. Lippencott . 260 
 , d. Hayne v.Redfern . 79 
 
 , d. Harris v. Masters . 162, 170 
 , d. Harrop v. Green . 280 
 
 , d. Heapy v. Howard . 149 
 
 , d. Heblethwaite v. Roe . 259 
 , d. Hellings v. Bird . 55 
 
 , d. Hele v. Roe . . 240 
 
 , d. Henniker v. Watt . 188 
 
 , d. Hinde v. Viuce . 136, 146 
 , d. Kindly v. Rickarby . 3l8 
 , d. Hitchings v. Lewis 172, 173 
 , d. Hodson v. Staple . 33, 89 
 , d. Holcomb v. Johnson . 145 
 , d. Hollingsworth v. Stennett 
 
 107, 122 
 
 , d. Holland v. Worsley . 178 
 , d. Holmes v. Darby . 155 
 
 , d. Huddlestone v. Johnson 156 
 ,d. Human v. Pettit . 281 
 
 , d. Jackson v. Wilkinson . 53 
 
 , d. v. Ramsbottom 276 
 
 , d. James v. Harris . 98, 220 
 
 ,d. v. Brown . .302 
 
 , d. v. 'Stanton . 277 
 
 , d. Lord Jersey v. Smith . 162
 
 XX 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Doe, d. Jones v. Crouch . . 184 
 
 , d. v. Roe . . 240 
 
 , d. v. Wilde . 279 
 
 , d. Johnson v. Lord Pem- 
 broke . . .284 
 , d. Kerby v. Carter 
 , d. Knight v. Quigley 
 
 , d. v. Rowe 
 
 , d. v. Lady Smith 
 
 . 121 
 107, 123 
 . 196 
 260 
 26 
 213 
 
 , d. Lawrie v. Dyball 
 , d. Lawrence v. Shawcross 
 , d. Leeson r. Sayer . 107, 123 
 , d. Ledger v. Roe . . 252 
 , d. Leicester v. Biggs . 82, 86, 
 120, 314 
 , d. Leppingwell v. Trussell 339 
 
 , d. Lewis v. Bingham 
 
 , d. v. Roe 
 
 , d. v. Coles 
 
 , d. Ligberd v. Lawson 
 , d.Lintot v. Ford 
 , d. Lloyd v. Deakin 
 , d. v. Powell 
 
 279 
 . 232 
 . 226 
 . 98 
 . 335 
 . 285 
 . 182 
 . 181 
 263, 273 
 . 240 
 . 276 
 . 340 
 . 210 
 
 , d. Lock wood v. Clarke 
 
 , d. Lock v. Franklin . 
 
 , d. Lowe v. Roe . 
 
 , d. Lowdon v. Watson 
 
 , d. Lucy v. Bennett 
 
 , d.Lulham v. Fenn 
 
 , d. Macartney, Lord, v. Crick 
 
 131, 132 
 
 , d. Martin v. Watts . .111 
 
 , d.Marsack v. Read 129, 210, 277 
 
 , d. Mason v. Mason . . 288 
 
 , d. Matthewson v. Wright- 
 man . 133,134 
 
 , d. Maldou, Mayor of, v. 
 Miller . . 217 
 
 , d. M' Dougall v. Roe . 237 
 
 , d. St Margaret's Hospital, 
 Governors of, v. Roe 
 
 , d. Mayhew v. Erlam t .' 
 
 , d. Messiter v. Dinely . 
 
 , d. Milner v. Brightwen 
 
 , d. Milnes v. Lamb 
 
 , d. Miller v. Noden . 
 
 , d. Mitchell v. Levi 
 
 , d. Mitcbinson v. Carter 
 
 , d. Morris v. Rosscr . 
 
 , d. Morgan v. Church 
 
 ,d. v.Bluck 
 
 . d. v. Roe , 
 
 , d. Moore v. Lawder 
 , d. Morecraft v. Meux 
 , d. Morland v. Baylis . 
 , d. Morton v. Roe 
 , d. Neale v. Roe 
 , d. Nepean v. Budden 
 , d. Netbercote v. Battle 
 . d. Neville v. Dunbar 
 , d. Newby v. Jackson 
 , d. Northey v. Harvey . 
 , d. Nutt Y. Nutt 
 
 229 
 364 
 350 
 48 
 316 
 120 
 130 
 180 
 92 
 136 
 
 34,81,341 
 . 350 
 . 123 
 . 184 
 . 236, 244 
 . 271, 272 
 239 
 308 
 300 
 132 
 
 107, 122 
 283 
 66 
 
 PAGE 
 
 Doe, d. Odiarne v. Whitehead 37, 96 
 , d. Oldharo v. Wolley 284, 289 
 , d. Oldershaw v. Breach . 188 
 , d. Osborue v. Spencer . 98 
 , d. O'Connell v. Porch . 227 
 , d. Palmer v. Andrews . 69 
 , d. Palmerston, Lord,v. Cope- 
 land . . .323 
 , d. Parry v. Hodson . 66 
 
 ,d. v.Hazell . . 140 
 
 , d. Parker v. Boulton . 121, 123 
 
 , d.Pate v. Roe 
 
 , d. Paul v. Hurst 
 
 , d. Peacock v. Raffan 
 
 , d. Pearson v. Roe . 
 
 , d. Pemberton v. Roe 
 
 , d. Phillips v. Butler 
 
 , d. v. Roe 
 
 345 
 . 229 
 . 144 
 
 230, 260 
 . 374 
 . 142 
 . 374 
 . 359 
 . 141 
 
 179, 184 
 . 183 
 
 310, 316 
 . 337 
 
 , d. Pinckard v. Roe 
 , d. Pitcher v. Donovan 
 , d. Pitt v. Laming 
 , d. v. Sherwin 
 , d. Powell v. King 
 , d. Prior v. Salter 
 , d. Pritchett v. Mitchell 128, 276 
 , d. Puddicome v. Harris . 315 
 , d. Putland v. Hilder . 70, 90, 
 110 
 
 , d. Quintin v. Roe . .244 
 
 , d. Rees v. Thomas . . 360 
 
 , d. Rigge v. Bell 107, 111, 144, 
 
 178,305 
 
 , d. Roby v. Maisey . . 60 
 , d. Robinson v. Roe . 145 
 
 , d. Roddv. Archer . . 136 
 , d. Rumford v. Miller . 227 
 
 , d. Rust v. Roe . . 272 
 
 , d. Lord Say & Sole v. Guy 71 
 , d. Sadler v. Driug . 203 
 
 , d. Sampson v. Roe . . 375 
 ,d. Scales v.Bragg . 279 
 , d. Schofield v. Alexander 168 
 , d. Scott v. Miller . . 192 
 , d. Seabrooke v. Roe . 172 
 
 , d. Shepherd v. Allen 109, 1 96 
 
 , d. v. Roe .211 
 
 , d. Selby v.Alston . .355 
 , d. Shore v. Porter 70, 125, 214 
 , d. Simmons v. Roe . . 236 
 , d. Smith v. Smith . . 299 
 , d. Smelt v. Fuchau . 317 
 
 , d. Spencer v. Godwin . 186 
 
 , d. v. Clarke . 366 
 
 , d. Sore v. Ekins . . 195 
 
 , d. Spicer v. Lea 134, 142, 143, 
 
 145 
 
 , d. Stewart v. Denton . 26 
 
 , d. Strickland v. Spence . 1 46, 
 
 147 
 
 , d. Surtees v. Hall . 51,98 
 d. Sutton v. Ridgway . 360 
 d. Sykes v. Durnford 133, 312 
 d. Taggart v. Butcher 336, 347
 
 TABLE OF CASES CITED. 
 
 XXI 
 
 Dot, d. Tarrant v. Hellier 
 
 , d. Taylor v. Johnson 
 
 , d. Thompson v. Clark 
 
 , d. Thomas v. Roe . 
 
 , d. Tilt v. Stratton 
 
 , d. Tilyard v. Cooper 
 
 , d. Tindal v. Roe . 
 
 , d. Tomkins v. Willan 
 
 , d. Toilet v. Sailer 
 
 , d. Troughton v. Roe 
 
 .d.Tubbv. Roe 
 
 ,d, Upton v. Witherwick .347 
 
 , d. Vernon v. Vernon 65, 208 
 
 , d. Vickery v. Jackson . 185 
 
 , d.Vinev. Figgins . . 212 
 
 , d.Wadmore v. Selwyn . 145 
 
 , d. Watson v. Fletcher . 81 
 
 ,d. Walker v.Stephenson 298, 3.55 
 
 , d. v. Groves 
 
 PAGE 
 
 62, 08, 
 286, 308 
 . 174 
 . 53 
 . 232 
 . . 112 
 . 260 
 . 237 
 . 87 
 . 220 
 252, 267 
 . 363 
 
 , d. Warry v. Miller 
 ,d. Warner v. Browne 
 
 118 
 . 64 
 106, 107. 
 Ill, 122 
 
 ,d. Webb v. Goundry .349 
 
 ,d. Whayman v. Chaplin 127, 128 
 ,d.Whatleyv. Telling .213 
 , d.Wheeldonv. Paul .161 
 
 , d. Whitfield v. Roe 167, 244 
 ,d. Williams v. Winch .360 
 
 ,d. v.Pasquali .125 
 
 , d. v. Humphreys . 151 
 
 , d. Wilson Y.Phillips . 189 
 
 , d. Wright v. Plumptree . 99 
 
 , d. v. Roe . . 242 
 
 , Davis, d. Povey v. . 252, 345 
 , Roed.Cholmondley v. .325 
 
 , , d. Cook v. . . 266 
 
 , , d. Durant v. . . 375 
 
 , ,d. Hambrook v. 237, 244 
 
 , , d. Humphries v. 
 
 , , d. Hyde v. 
 
 , , d.Leak v. 
 
 , , d. Stephenson v. 
 
 , Tupper, d. Mercer v. 
 
 v. Badtitle 
 
 v. Davies 
 
 v. Greaves 
 
 v. Law 
 
 v. Payne 
 
 v. Reynolds 
 
 v. Roe 
 
 v. Spiller. 
 
 v. Stradling 
 
 Donovan, Doe, d. Pitcher v. 
 Donford v. Ellis 
 
 347 
 268 
 258 
 224 
 237 
 245 
 
 336,385,391, 393 
 207, 232 
 . 360 
 . 318 
 . 351 
 
 229, 237, 240, 245 
 . 133 
 . . 277 
 141 
 381 
 
 Dormer v. Fortescue . . 392 
 
 Dose, Lushington, d. Godfrey v. 349 
 Douglas v. Shank . . 222 
 
 v . . . 239 
 
 Downingham's case . . 63 
 Dowsing, A nsty v. . .295 
 Driver, d. Scrutton v. Scrutton . 226 
 ,d. Oxendon v. Lawrence 258,276 
 
 PAGE 
 
 Dring, Doe, d. Sadler v. . . 203 
 Driukwater, Gulliver v. 336, 385 
 Drury v. Fitch . . 91 
 
 Duckworth, d. Trebly v. Tunstall 171 
 Dumpor's case . . . 189 
 
 v. Syms . . 190 
 
 Dunch, Sprightley, d. Collins v. 239 
 Durant, Potts v. . 304 
 Durdant, Burchett v. . . 82 
 Dunbar, Doe, d. Neville v. . 132 
 Dunk v. Hunter . . 116 
 Dutton, Cotterill v. . .58 
 Durnford, Doe, d. Sykes v. 133, 312 
 Dyball, Doe, d. Laurie v. . 26 
 Dyson, Doe, d. Chippendale v. . 316 
 , Jeffries v. . 382, 388 
 
 E. 
 
 Eades, Patterson d. Gradridge v. 203 
 Earl v. Lewis . . . 304 
 
 , d. Godwin v.Baxter . .318 
 
 Eaton, Brewer d. Lord Onslow v. 174 
 
 Eastcourt v. Weeks 
 Eccleston v. Petty 
 
 -, Royston v. 
 
 63 
 . . 294 
 
 23, 27, 28 
 
 . . 299 
 . 178 
 
 . . 107 
 . 195 
 . 366 
 . 63 
 . 98 
 
 . .381 
 . 228 
 
 Edmunds, Nash v. 
 Edwards, Palmer v. 
 Egan v. Johnson 
 Ekins, Doe d. Sore v. 
 Elden v. Keddell 
 Eliot, Stephens v. 
 Elliot, Roe d. Truscott v. 
 Ellis, Donford v. 
 
 , Roe, d. Lee v. . 
 
 v. Smith . .291, 292 
 
 England, d. Syburn v. Slade 89, 276 
 Erith, Inhabitants of, Rex v. . 284 
 Eriswell, Inhabitants of, Rex r. 
 
 284, 303 
 
 Erlam, Doe d. Mayhew v. . 364 
 
 Evans, v. Croker . . 223 
 
 Evans, Smith v. . 291 
 
 Evelyn, Stonehouse v. . . 291 
 
 Eves, Rumney v. ... 286 
 
 Eyre, Longford v. . . 293 
 
 F. 
 
 Fabrigas, Mostyn v. . 209 
 Fagg v. Roberts . . . 323 
 Fairclaim, d. Fowler v. Sham- 
 title . 14, 54, 55, 257, 259, 261 
 , d. Empson v. Shackle- 
 ton . . 53,54 
 Farmer, d. Miles v. Thrustout . 239 
 Far v. Denn . . 332, 333 
 Farr, Rede v. . . 198 
 Fawson, Goodright, d. Griffen r. 219 
 Fawcctt, Longcbamps v. . . 280 
 Felton v. Ash . . >: . 365
 
 XXII 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Fenn, d. Blanchard v. Wood . 276 
 
 d. Buckle v. Roe . . 239 
 
 d. Knight v. Dean . . 239 
 
 d.Matthewsv. Smart 98,190 
 
 d. Pewtress v. Granger 
 d. Thomas v. Griffith 
 d. Tyrrell v. Denn . 
 d. Wright v. Johnson 
 Denn, d. Wroot v. 
 Doe, d. Lulham v. 
 Fenwick's case 
 
 v. Grosvenor 
 
 261, 
 
 281 
 311 
 241 
 288 
 272 
 210 
 261 
 361 
 211 
 
 57 
 212 
 
 51 
 281 
 
 Fellis, Doe d. Hammeck v. 
 
 Ferrars, Roe d. Pellat v. . 
 
 Figgins, Doe d. Vine v. 
 
 Fineux, Hatcher v. 
 
 Finch, Ivatt v. 
 
 Fish, Longchamp d.Goodfellow v. 291 
 
 Fisher v. Hughes . . 329 
 
 , Kildarev. . . 25 
 
 Fitchet v. Adams . . 100 
 
 p itch, Drury v. . . 91 
 
 Fitzgerald v. Marshall . 27, 28 
 Fleetwood, Thornby d. Hamilton 
 
 Fletcher, Doe d. Watson v. 
 Fleming, Doe d. Fleming v. 
 Flood, Goodright d. Welsh v 
 Floyd, Badger v. . 
 v. Bethill 
 
 Focus v. Salisbury . . 
 
 Folkard v. Hemet 
 Foot, Thrustout d. Wilson v. 
 Ford v. Lerke 
 
 v. Gray 
 
 Doe, d. Lintot v. . 
 
 Foster, Miller v. . . . 
 
 Forrester, Goodright, d. Fowlerv. 
 Forse, Zoncb, d. Forse v. . 
 Forster, Doed. Clarges v. '. 
 
 Fortescue, Dormer v. . 
 
 Fortune v. Johnson . . 
 
 Foreman, Allen v. . 
 Foster v. Pitfall 
 Fothergill, Crocker v 
 Fox v. Swan 
 , Mason v. 
 Fraine, Dillon v. . . 87 
 
 Franklin, Doe, d. Lock v. . .262 
 Frazer, M'Kenire v. . . 289 
 
 Freeman, Holdfast v. . . 230 
 
 Friend, Bouchier v. . . 250 
 
 Fryett, d. Harris v. Jeffries . 194 
 Frowd, Doe d. Calvert v. . 125 
 
 Fry, Thorpe v. . 389 
 
 , Barefoot v. . . 352 
 
 Fuchau, Doe, d. Smelt v. . .317 
 Fulford, Denn, d. Lucas v. . 354 
 Fulgam, Molineaux v. . . 345 
 Furley, d. Canterbury, Mayor of, 
 
 v. Wood . 136,145,216,217 
 Fursden, Moore v. . 210, 230 
 
 338 
 . 81 
 . 285 
 . 25 
 . 351 
 . 343 
 . 101 
 . 298 
 . 335 
 . 27 
 54,98 
 . 335 
 304 
 97 
 71 
 314 
 392 
 . 345 
 .203 
 39,40 
 . . 20 
 177, 192, 280 
 
 G. 
 
 Gallimore, Moss v. . , , .60 
 Galliers, Roe, d. Hunter v. 159, 180 
 
 Gardiner v. Norman 
 Garrett v. Lister 
 Gascoigne, Hodgson v. . 
 George, d. Bradley v. Wisdom 
 Gibson, Wither v. . . 
 
 , Alexander v. ' . 
 
 -, Woodcock v. ... 
 
 201 
 306 
 347 
 348 
 158 
 . 298 
 . 80 
 . 390 
 . 27 
 60, 108 
 . 384 
 . 293 
 . 77 
 . 304 
 . 186 
 
 Gibbs, Dodwell v. 
 Giles, Hill v. 
 
 , Doe d. Fisher v. 
 
 Girdlestone v. Porter 
 
 Glascock, Shires v. 
 
 Glover v. Cope 
 
 Glynn v. Bank of England 
 
 Godwin, Doe, d. Spencer v. 
 
 Goodright, d. Balsh v. Rich . 276 
 
 , d Charter v. Cordwent 
 
 150, 174 
 
 , d. Fowler v. Forrester 97 
 
 , d. Griffin v. Fawson . 219 
 
 , d. Hare v. Cator 60, 93, 
 
 95, 102, 158 
 
 , d. Jones v. Thrustout 
 
 236. 355 
 
 , d. Peters v. Vivian 182 
 
 , d. Rowell v. Vice 334 
 
 , d. Russell v. Noright, 252 
 
 , d. Smallwood v. Stro- 
 
 ther . . 30, 216 
 
 , d. Stevenson v. No- 
 
 right 
 
 -, d. Stevens v. Moss 
 , d. Ward v. Badtitle 
 , d. Walter v. Davids 
 , d. Welsh v. Flood 
 
 v. Hart 
 
 v. Holton 
 
 v. Moore 
 
 v. Wood 
 , Moore v. 
 
 170 
 283 
 273 
 192 
 25 
 
 255,257, 345 
 335 
 366 
 325 
 204 
 
 Goodtitle, d. Brembridge v. Wal- 
 ter . 218, 220 
 
 d. Chester v. Alker 21 , 30 
 
 , d. Estwick v. Way 80, 1 12, 
 
 114 
 
 , d.Gallaway v. Herbert 107, 
 
 122, 212 
 
 , d. Gardner v. Badtitle 269 
 
 , d. Jones v. Jones 32, 89 
 
 , d. King v. Woodward 126 
 
 , d. Luxmore v. Saville 186 
 
 , d. Norris v. Morgan . 61 
 
 , d. Norfolk, Duke of, v. 
 
 Notitle . . . 233 
 
 , d. Parker v. Baldwin 78 
 
 , d.Pinsentv.Lammiman 220 
 
 , d. Price v. Badtitle . 207 
 
 , d. Ranger v. Roe . 207 
 
 , d. Read v. Badtitle . 236
 
 TABLE OF CASES CITED. 
 
 \X111 
 
 PAGE 
 
 Goodtitle, d. Revett v. Brabam . 288 
 
 , d. Roberts v. Badtitle 238 
 
 , d. Sandys v. Badtitle 246 
 
 , d. Taysum v. Pope . 364 
 
 , d. Wanklen v. Badtitle 243 
 
 , d. Wright v. Otway . 26 
 
 v. Badtitle . . 268 
 
 v. Davis . . 245 
 
 v. Holdfast . .170 
 
 v. North . 380, 387 
 
 v. Tombs . 383, 391 
 
 r. Walton 
 
 , Bennington v. 
 -, Thomas T. 
 
 Goodwin v. Longhurst 
 
 v. Blackman 
 
 25 
 . 24, 25 
 . 350 
 63, 65, 66 
 219, 221 
 . . 223 
 222, 223 
 289 
 
 Goodgaine v. Wakefield 
 Goose, Adams v. 
 Gougb, d. Calthorpe v. Gough 
 Gowthwaite, Hassell, d. Hodsgon 
 
 v. . . . 72, 191 
 
 Goundry, Doe d. Webb T. . 349 
 
 Gray, Ford v. .54, 98 
 
 , Thrustout, d. Turner v. 226, 
 
 320, 354 
 
 Grant, Doe, d. Clarke v. . . 278 
 Gray son v.Atkinson . . 292 
 
 Gravenor v. Woodbouse . . 276 
 Granger, Doe, d. Pewtress v. . 281 
 Greenley's case . " . ' .39 
 Green v. Proude . /* . 99 
 
 G reen's case . . . 173 
 
 Gregory v. Henderson . . 85 
 
 Gregg, Bingbam, d. Lane v. . 365 
 Greensmith, Harding, d. Baker v. 245 
 Gree v. Rolle . 51, 100, 333 
 
 Greaves, Doe v. . 207, 232 
 
 Green, Doe d. Harrop v. . . 280 
 Griffith, Fenn, d. Thomas v. .311 
 Griffin, Carlton, d. Griffin v. . 293 
 
 , Doe, d. Banning v. . 284 
 
 Grimstone, d. Lord Govrer, v. 
 
 Burghers . . . 264 
 
 Grix, Addy v. . 290, 293 
 
 Grills, Hussey v. 
 Groves, Doe, d. Walker, v. 
 Grosvenor, Fenwick v. 
 Grubb, Doe, d. Grubb v. 
 Grumble v. Bodilly 
 Grylev. Gryle . 
 Gulliver v. Wagstaff 
 v. Drinkwater . 
 
 289 
 . 118 
 261, 361 
 . 253 
 . . 361 
 . 292 
 . . 243 
 336, 385 
 
 Guy, Doe, d. Lord Say and Sele v. 71 
 v. Rand . . 221 
 
 H. 
 
 Haddock's case . ' . .323 
 Halsal v. Wedgwood . . 239 
 Hall, Keecb, d.Warnev. 33, 61, 109, 
 307, 384 
 , Doe, d. Surtees v. . 51, 98 
 
 PAGE 
 
 Hall, Doe, d. Bennington r. 65, 213, 
 
 299 
 
 v. Hughs . . .203 
 
 Halse, Doe, d. Colclough v. . 49 
 Hamond v. Ireland . . 27 
 
 v. Savel . . . 27 
 
 Hammond v. Wood . 69, 301 
 Hancock v. Price . . . 25 
 
 Hand v. Dinely . 366 
 
 Hands v. James . 294, 298 
 
 Harpur'scase . . 10,29 
 
 Harvey. Roe, d. Haldane v. . 32 
 
 , Metcalf v. . . 392 
 
 Harrison, Roe, d. Gregson v. 178, 190, 
 191, 196 
 
 v. Harrison 
 
 v. Blades 
 
 Harper, Worrall v. 
 -, Jordan v. 
 
 290, 293 
 . 284 
 . 29 
 , . 339 
 346, 351 
 . 345 
 . 381 
 
 Harris, Withers v. 
 
 , Rexv. 
 
 v. Allen 
 
 , Doe, d. Puddicombe v. 315 
 
 Harding, d. Baker v. Greensmith 245 
 Hart, Goodright v. 255, 257, 345 
 Harbert, Tredway v. 
 Harwood, Bell v. 
 Harton v. Harton 
 Harrington v. Wise 
 Harris, Doe, d. James v 
 -, Rolfe v. 
 
 355, 356 
 . 280 
 . 83 
 . 113 
 98, 220 
 
 , . 183 
 . 283 
 . 114 
 . 285 
 
 Harvey, Doe, d. Northey v 
 
 Hartley, Philips v. 
 
 Hasland, Roe v. 
 
 Hassell, d. Hodson v. Gowthwaite 72, 
 
 191 
 
 Hatfield v. Thorpe . . 296 
 
 Hatcher v. Fineux * ,. 51 
 
 Hatton, Atkins v. . . .304 
 
 Hatherley, Doe, d. Hamilton v. 356, 
 
 358 
 
 Hawkins, Moore v. . . 
 
 -, Chater v. 
 
 274 
 295 
 228 
 130 
 140 
 
 Haydon, d. Carrol, Vicars v. 
 Hayley, Roe, d. Bamford v. 
 Hazell, Doe, d. Parry v. 
 Hazlewood, d. Price v. Thatcher 233 
 Heaton, Little v. . .158 
 
 Heatherly, d. Worthington v. 
 
 Weston . . . 210 
 
 Heath, Short v. . 393 
 
 Hegan v. Johnson . 107, 122 
 
 Hellier, Doe, d. Tarrant v. 62, 63, 286, 
 
 308 
 
 Hems v. Stroud . 29, 304 
 
 Hemet, Folkard v. . . 298 
 
 Hengest, Jones, d. Thomas v. . 324 
 Henden, Smartley v. . . 202 
 
 Henderson, Gregory v. . . 85 
 Hersey, Roe, d. Wrangham v. .213 
 Herbert v. Laugblyn . . 20 
 
 , Goodtitle, d. Galloway 
 
 T. . 107, 122, 212 
 Hicks, Roe, d. Jeffreys r. 64, 298, 308
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Hicks, Doe, d. Compere v. 97, 3D2 
 Highamv. Cooke . . 223 
 
 Higgins v. Highfield . . 385 
 
 Higham v. Ridgway . . 283 
 
 Highmore v. Barlow . . 203 
 
 Hill v.Giles . . .27 
 
 Milliard v. Jennings . . 295 
 
 Hillingsworth v. Brewster 19, 261 
 Hind, Seers v. . 190, 191 
 
 Hindson v. Kersey . . 297 
 
 Hilder, Doe, d. Putlandv. 70, 90, 110 
 Hubson, d. Bigland v. Dobson . 266 
 Hockead, Plomer v. . .201 
 
 Hodgson, Doe d. Parry v. . 66 
 
 v. Gascoigne . . 347 
 
 , Mason d. Kendall v. 252, 268 
 
 Hodson v. Sharpe . . 276 
 
 Hodges, Wilson v. 282 
 
 Hoel, Joans v. . .28 
 
 Holdfast, Goodtitle v. . . 170 
 
 Holton, Goodright v. . . 335 
 
 Holdmyfast, Newman v. 19, 130 
 
 Holford, Lade v. . . . 33 
 
 Holmes, Poultney v. . . 178 
 
 , Young v. . 71 
 
 , d. Brown v. Brown . 326 
 
 Holdfast, d. Hattersley v. Jackson 355 
 
 , d. Woollams v. Clapham 
 
 65, 286 
 
 , Thrustout, d. Williams 
 
 v. . . 356, 357 
 
 v. Freeman . . 230 
 
 v. Morris . . 388 
 
 Hooper v. Dale . . . 204 
 
 Hood Austine v. . . 355 
 
 Hopkin's case . . .201 
 
 Horde, Taylor, d. Atkins v. 41, 327, 
 
 329 
 
 Horsfall, Calvert v. . . 389 
 
 Howard v. Bartlett 
 
 v. Wemsley 
 
 , Doe, d. Heapy v. 
 
 How, Lucas v. 
 Houston v. Hughes 
 Howard, Bishop v. 
 Hudlestone, Johnson v. 
 Hudson, Hunt v. 
 Hughs, Hall v. 
 Hughes, Birkbeck v. 
 
 , Fisher v. 
 
 , Houston v. . . . 
 
 Humphreys, Doe, d. Williams v. 151 
 Hunt v. Bourne . 97, 98 
 
 v. Hudson . . 381 
 
 Hunter v. Britts . . 390 
 
 , Dunk v. . . H6 
 
 Hurst. Doe, d. Paul v. . . 229 
 
 Husseyv. Grills . . 289 
 
 Hutchinson v. Puller . . 27 
 
 Hyde, d. Culliford v. Thrustout . 25;.' 
 
 . . 66 
 . 139 
 . 149 
 
 , . 76 
 . 87 
 
 . . 110 
 
 137, 156 
 . 381 
 . 203 
 . 245 
 . 329 
 87 
 
 I. 
 Inglis. Doe, d. Godsell v. 
 
 . 151 
 
 PAGE 
 
 Ireland, Hammond v. . 27 
 
 Roe, d. Johnson v. . 309 
 
 Ironmonger, Doe d. Hallen v. . 83 
 
 Ivatt v. Finch . . 281 
 
 Ives, Townsend v. . . 297 
 
 J. 
 
 Jackson, Odingsall v. .29 
 
 , Doe, d. Newby v. . 107 
 
 , Doe, d. Vickery v. . 185 
 
 , Roe, d. Matthews v. . 134 
 
 , Holdfast, d. Hattersley v. 355 
 
 , Trymner v. . . 291 
 
 James, Hands v. . 294, 298 
 
 Jeffries, Fryett, d. Harris v. .194 
 
 , Doe, d. Foxlow v. . 227 
 
 v. Dyson . 382, 388 
 
 Jefts, Taylor v. . . 235 
 
 Jemott v. Cow ley . . 71 
 
 Jenkins, d. Harris v. Pritchard 95, 281 
 Jennings, Hilliard v. . . 295 
 Jenny, d. Preston v. Cutts 236, 244, 
 
 246 
 
 Jesson, Doe, d. George v. 58, 59, 285 
 Joans v. Hoel . . 28 
 Johnson, Doe, d. Holcombe v. . 145 
 , Doe d. Huddlestone v. 137, 
 
 -, Doe, d. Taylor v. 
 -, Fenn, d. Wright v. 
 -, Rich, d. Cullen v. 
 -, Egan v. 
 -, Fortune v. . 
 -, Hegan v. . 
 
 -, Proctor v. . 
 - v. Hudddleston 
 -, Lawson v. . 
 
 156 
 . 174 
 . 288 
 . 309 
 . 98 
 , . 345 
 107, 122 
 . 346 
 137, 156 
 . 284 
 . 198 
 . 298 
 82, 83 
 
 Johns v. Whitley 
 
 Joliffe, Lowe v. 
 
 Jones v. Lord Say and Sele 
 
 , d. Griffiths v. Marsh 132, 199, 
 
 205 
 
 , Doe, d. Duroure v. 
 
 , Goodtitle, d. Jones v. 
 
 , d. Thomas v. Hengest 
 
 v. Thorn . 
 
 v. Tatham 
 
 Jordan v. Harper . 
 v. Cleabourne 
 
 Jourdain v. Wilson 
 Jory v. Orchard 
 Jurdan v. Stone 
 Juner, Boner v. 
 Judson, Pinero v. 
 
 . 58 
 33,89 
 . 324 
 . 183 
 . 173 
 . 339 
 . 28 
 . 74 
 . 313 
 . 66 
 . 210 
 . 119 
 
 Keane, d. Byron v. Deardon 51, 83, 
 
 89, 349, 350 
 
 Keddell, Elden v. - .- . 306
 
 TABLE OP CASES CITED. 
 
 XXV 
 
 PAGE 
 
 Keech, d. Warne v. Hall 33, 61, 109, 
 307,384 
 
 Keeling, Doe, d. Bish v. . 182 
 
 Keen, Doe, d. Barnett v. . 54 
 
 , Williams, d. Johnson v. . $71 
 
 , d. Angel v. Angel . 356, 357 
 
 Kemp v. Derrett . 127, 141, 142 
 Kenrick r. Beauclerk . 83, 86 
 Kendrick, Doe, d. Bedford v. . 144 
 Kersey, Hinsdon v. v . 297 
 Kesworth v.Thomas . . 226 
 
 Knightley, Doe, d. Duke of Bed- 
 ford v. ... 135 
 Kildare v. Fisher . ll : :"'. . 25 
 Kineto, Comyn v. ' "i. .20 
 King, Cottingham v. . . 24, 219 
 
 , Doe, d. Powell v. . 310, 316 
 
 , Short, d. Elmes v. . . 239 
 
 , Short v. . . 356, 359 
 
 v. Bery . . . . 209 
 
 , Watson v. . . 285 
 
 Kingsdale v. Man . . 343, 345 
 
 Kinaston v. Clarke . . 305 
 
 Kirkman v. Thomson ' . 40 
 
 Knight v. Sims . .28 
 
 , d. Phi Hips v. Smith . 85 
 
 Knipe v. Palmer . . 91 
 Kynaston v. Lloyd . . 39 
 
 Lackland, d. Dowling v. Badtitle 232 
 Lade v. Holford . . . 33 
 
 Lambley, Doe, d. Eyre v. . 314 
 
 Lamb v. Archer . . . 257 
 
 , Doe d. Milnes v. . .316 
 
 Laming, Doe, d. Pitt v. . 179, 184 
 Lammiman, Qoodtitle, d. Pin- 
 sent v. ... 220 
 Langley, Broughton v. . . 82 
 Lansdowne(Lord) Penphrasev. 292 
 Laughlyn, Herbert v. . .20 
 Lawrence, Driver, d. Oxendon v. 
 
 258, 276 
 Law v. Wall is 
 
 , Doe, d. Cbadwick v. 
 
 , Doe v. 
 
 Lawder, Doe, d. Knight v. 
 Lawson, Doe, d. Ligberd v. 
 , Johnson v. 
 
 . 324 
 355, 356 
 . 360 
 . . 123 
 . 98 
 . 284 
 . 192 
 
 Lawrence, Doe, d. Barber v. 
 Lea, Doe, d. Spicer v. 134, 142, 143, 
 
 145 
 Lee v. Libb . . 291, 292 
 
 v. Norris . . . . 79 
 
 v. Rowkeley . . , . 334 
 , Rigley v. . . . 334 
 Lees, Roe, d. Bree v. . .138 
 Leeds (Duke of) Pugh v. . . 223 
 Legg, d. Scot v. Benion . 13O, 132 
 Leigh ton v. Leighton . . 352 
 
 PAGE 
 
 Lengridge, Richardson v. . . 106 
 Lerke, Ford v. . . .27 
 
 Levi, Doe, d. Mitchell v. . . 130 
 Lewis, Earl v. , . . 304 
 
 , Doe, d. Hitchings v. 172, 173 
 
 Leymayne v. Stanley . . . 290 
 Libb, Lea v. . . 291,292 
 
 Limbert, Lindsay v. . . . 69 
 
 Lindsay v. Limbert . . .69 
 Linsey v. Clerk '**'' . .331 
 Lincoln College case . . 40 
 
 Lippencott, Doe d. Harwood v. 260 
 Lister, Garrett v. -. . . 306 
 
 Little v. Heaton . ' . 158 
 
 Littler, Clymer v. . . . 327 
 
 Llewelyn v. Williams . . 223 
 
 Llingon, Chamier v. . . 383 
 
 Lloyd v. Peel . . .387 
 
 , Kynaston v. . 39 
 
 London (Bishop of) Rex. v. . 19 
 Longchampd.Goodfellow v. Fish 291 
 Longhurst, Goodwin v. . 63, 65, 66 
 
 210 
 . 293 
 . 280 
 . 282 
 . 345 
 64,309 
 Lovelock, d. Norris v. Dancas- 
 
 ter . 259, 260 
 
 Lonsdale, Roe, d. Raper v. 
 Longford v. Eyre 
 Longcbamps v. Fawcett . 
 Lord, Roe, d. Thorne v. 
 Loveless v. Ratcliff 
 
 , Roe, d. Cosh r. 
 
 Lowe, Rowe, d. Ebrall v. 
 v. Joliffe 
 
 Lowthal v. Tomkins 
 Lucas v. How 
 
 , Doe.d. Buross v. 
 
 Luffe, Rex v. 
 
 Lushington, d. Godfrey v. Dose 
 Luttrell, Pollard v. 
 Luxton, Doe, d. Blake v. 
 
 88 
 298 
 
 69 
 
 76 
 132 
 284 
 349 
 100 
 
 32 
 
 M. 
 
 Maberly, Thompson v. . .137 
 
 Machel v. Temple . . .294 
 Macdunoch r. Stafford . . 23, 25 
 Mackinder, Pendock, d. Mackiu- 
 
 der v. . . . 294 
 
 M'Kensie v. Fraser . . . 289 
 Madden, d. Baker v. White 67, 1'26 
 Maddox, Orrell v. . . .311 
 
 Maisey, Doe, d. Roby v. . . 60 
 
 Maldon's case . ' . 113 
 
 Mantle v. Wellington . . 210 
 
 Man, Winkworth v. . . . 221 
 
 , Kingsdale v. . . 343, 345 
 
 Manning, Parker v. . . 276 
 
 Martyn v. Nichols . . 28 
 
 Marsh, Jones, d. Griffiths v. 132, 199, 
 
 205 
 
 Marshall, Fitzgerald v. . 27, 28 
 Martin v. Davis . . . 261
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Massey v. Rice . . . 28 
 
 Mason, Doe d. Mason v. . . 288 
 
 , d. Kendale v. Hodgson 252, 
 
 268 
 
 v. Fox . 328 
 
 Masters, Doe, d. Harris v. 162, 170 
 May v. May ... . . 283 
 
 Maynard, Rawson v. . .27 
 
 Medlicott v. Brewster . . 264 
 
 Mellish, Sturt v. . . 58 
 
 , Baker v. . 88,276,310 
 
 Merlott, Tapner d. Peckham v. 95, 99 
 Merrell v. Smith . . . 225 
 
 Methold v. Noright . . 243 
 
 Metcalf v. Harvey . . 392 
 
 Messenger v. Armstrong . . 151 
 Meux, Doe, d. Morecraft v. . 184 
 Miller, Doe d. Warryv. .- . 64 
 
 , Doe, d. Rumford v. . . 227 
 
 Doe, d. Maldon (Mayor 
 
 of) v. 
 
 , Doe, d. Scott v. 
 
 ,v. Foster 
 
 Milburn, Powell v. . 
 
 Millener v. Robinson . 
 Minshull, Roe, d. Crompton 
 
 Mitchell, Doe, d. Esdaile v. 
 , Doe, d. Pritchett 
 
 Moggridge v. Davis 
 Molineux v. Molineux 
 
 v. Fulgan 
 
 Moody, Tenny, d. Gibbs v. 
 Moore v. Fursden 
 
 v. Hawkins 
 
 , Goodright v. 
 
 v. Goodright 
 
 Morgan, Goodtitle, d. Norris v. 
 
 , d. Dowding v. Bissell 
 
 Morres v. Barry . , 
 Morris v. Barry . 
 
 , Holdfast v. 
 
 Morgan v. Stapely . 
 Morewood, Outram v. 
 Moss v. Gallimore 
 Mostyn v. Fabrigas 
 Moss, Goodright, d. Stephens v. 
 Mulliner, Doe, d. Colclough v. 
 Murtbwaite v. Barnard 
 Murless, Doe, d. Batten v. . 
 Musgrave, d. Hilton v. Shelley 
 
 N. 
 
 Nash v. Edmunds . . 299 
 Neale, Smalley v. . . 239 
 Negative d. Parsons v. Positive 248 
 Neving, Soulby v. . . 154 
 Newman v. Holdmyfast . 19,330 
 , Shirlyv. . . . 141 
 
 217 
 192 
 304 
 303 
 210 
 154, 
 174 
 213 
 128, 
 276 
 . 388 
 . . 20 
 . 345 
 82,317 
 . 210, 330 
 . 274 
 . 366 
 204 
 61 
 117 
 328 
 210 
 388 
 338 
 281 
 60 
 209 
 283 
 52 
 87 
 302 
 96 
 
 PAGE 
 Newton, Waddy v. . . .20 
 
 Nichols, Martin v 28 
 
 Noden, Doe, d. Miller v. . . 120 
 Noke v. Windham . 67, 218, 354 
 Nokes, Awder v. . .76 
 
 Noright, Goodright, d. Steven- 
 son v. . . 170 
 -, d Russell v. 252 
 
 -, Methold v. 
 
 Norris, Lee v. 
 Norman, Gardiner v. 
 North, Goodtitle v. 
 Nowell v. Roake 
 Notitle, Goodtitle, d. 
 
 (Duke of) v. 
 Nutt, Doe, d. Nutt v. 
 
 243 
 . 79 
 . . 201 
 380, 387 
 . 391 
 Norfolk 
 
 . . 233 
 . 66 
 
 O. 
 
 Oakapple, d. Green v. Copous . 314 
 Gates d. Wigfall v. Brydon 33, 95, 
 
 263 
 
 Odingsall v. Jackson . . 29 
 
 Ogle v. Cook . . <S \ . . 297 
 Old, Doe, d. Bristow v. . .197 
 
 Old Arlesford, Rex v. . . 20 
 
 Omichund v. Barker . . 295 
 
 Orchard, Jory v. ... 313 
 
 Orrell v. Maddox . . . 311 
 
 Osbourne v. Rider . . 223 
 
 Otway, Goodtitle, d. Wright v. 26 
 
 , Sir John, Addison v. . 204 
 
 Outram v. Morewood . .281 
 
 Ougly, Peate v. . 291 
 
 P. 
 
 Paine, Roe, d. Goatly v. . . 184 
 Painter, Sturgeon v. . .114 
 
 Palmer's case . . . 28 
 
 Palmer, Knipe v. . .91 
 
 , Pig-gott v. . . 40 
 
 v. Edwards . . 178 
 
 Palmer, Doe, d. Brierly v. . . 152 
 Partridge v. Ball . 60, 216, 217 
 Parkin, Aislin v. 212, 382, 388, S89 
 
 , Astlin v. . . 389 
 
 Parker, d. Walker v. Constable 106, 
 
 125 
 
 v. Manning . . 276 
 
 Roe d. Beebee v. . . 287 
 
 Parkhurst, Berington d. Dormer 
 
 v. . . 95, 102, 214 
 
 Parsons, Zouch, d. Abbott v. . 67 
 
 , v. ... 218 
 
 v. Lord Ranclifie . 289 
 
 Pasquali, Doe, d. Williams v. . 125 
 Passer, Dobbs v. , . 252, 267
 
 TABLE OF CASES CITED. 
 
 XX.V11 
 
 PAGE 
 
 Patterson d. Gradridge v. Eades 203 
 Pattison, Mayor of Congleton v. 74 
 Paul, Doe, d. Wheeldon v. . . 161 
 Payne, Doe v. . .318 
 
 , Wood v. . 25, 330 
 
 Payne's case . . .79 
 Paw let, Croft v. . . 294, 298 
 Pearson, Doe, d. Gill v. .100,210 
 Peaceable, d. Hornblower v. Read 
 56, 98, 99 
 v. Troublesome . 
 
 233 
 . 291 
 80, 276 
 . 387 
 . 33 
 22,28 
 
 Peate v. Ougly 
 
 Pearce, Phillips v. . 
 
 Peell, Lloyd v. . 
 
 Pegge, Doe, d. Bristow-.v. 
 
 Pemble v. Sterne 
 
 Pembroke Lord, Doe d. Johnson 
 
 v. . . . . 284 
 
 Pendrill v. Pendrill . . 284 
 
 Pendockj d. Mackinder v. Mack- 
 
 inder . . . 294 
 
 Pennant's case . 76, 155, 173, 197 
 Penphrase v. Lord Lansdowne . 292 
 Percival, Thrustout, d, Dun- 
 
 ham v. 
 Perkins, Doe, d. Burrell v. 
 Peto v. Checy 
 Peterson, Barnes v. 
 Petifer, Ward v. 
 Petty, Eccleston v. . < 
 
 Pettit, Doe. d. Human v. . 
 Peytoe's case . . 
 
 Phillips, Chawortb v. 
 
 , Clarke v. 
 
 v. Bury 
 
 , Snow, d. Crawley v. 
 
 v. Hartley 
 
 v. Pearce 
 
 , Doe, d. Birch v. . 
 
 , , d. Wilson v. 
 
 Phipps v. Pitcher . . . 
 
 Pierson v. Tavenor . -" T> . 
 
 Piers, Swadling v. . . 
 
 Pierce, Roe, d. Dean of Roches- 
 
 ter v. . 129, 132, 206, 313 
 
 . 355 
 . 98 
 . 204 
 24,25 
 . 21 
 . 294 
 . 281 
 . 270 
 . 76 
 . 101 
 . 270 
 . 302 
 . 114 
 80, 276 
 . 353 
 . 189 
 . 296 
 . 345 
 . 217 
 
 Davis v. 
 
 281 
 40 
 298 
 
 Piggott v. Palmer . 
 Pike v. Badmering 
 Pilkington, Doe, d. Hardman v. 225, 
 
 226 
 
 Pick, Crofts v. . . 69 
 
 Pinero v. Judson . 119 
 
 Piper, Cople&torie v. !.''. . 25 
 Pitcher, Phipps v. . . . 296 
 
 -- , Rogers v. . .69 
 
 Pitt, Reynolds v. . . 183 
 
 Pitfall, Foster v. . . 39, 40 
 
 Pleasant, d. Hayton v. Benson . 130 
 Plowman, Doe, d. Bradshaw v. . 25 
 Plomer v. Hockhead . . 201 
 
 Pluraptree, Doe, d. Wright v. . 99 
 Podger's case . . 97, 99, 100 
 
 Pooley v. Bentley 
 Pollard v. Luttrell 
 , Audley v. 
 
 PAGE 
 
 .... 118 
 . . 100 
 . 100 
 
 Pomfret v. Windsor . . 91 
 
 Pope, Goodtitle, d. Taysurn v. . 364 
 Porch, Doe, d. O'Connell v. . 227 
 Porter, Doe, d. Shore v. 70, 125, 214 
 , Girdlestone v. . . 384 
 
 Positive, Negative, d. Parson v. 248 
 Pott, Doe, d. Gibbons v. . 33 
 Potts v. Durant . ', . . 304 
 Poultney v. Holmes . . 178 
 Powell v. Milburn . . . 203 
 -, Doe, d. Lloyd v. . . 182 
 
 Power. Rowe, d. Boyce v. . 98, 329 
 Price, Hancock v. ^ . .25 
 
 -, Right, d. Cator v. .291, 294 
 
 Prideaux, Doe, d. Brune v. 110, 124 
 Pritchard, Jenkins, d. Harris v. 95. 281 
 Proctor v. Johnson . . 346 
 
 Proudfoot's case . . . 68 
 
 Prossor, Doe, d. Fishar v. . 55 
 
 Proude, Green v. . . . 89 
 
 Pughv. Duke of Leeds . . 223 
 
 Puller, Hutchinson v. , . .27 
 Pulteney v. Warren . . 383 
 
 Pure, d. Withers v. Sturdy . 170 
 
 Purvis, Denn, d. Burghes v. . 221 
 Purdy, Davis v. . ... 223 
 
 Q. 
 Quigley, Doe, d. Knight v. 107, 123 
 
 R. 
 
 Radcliffe v. ChapMn '." . 287 
 
 Raffan, Doe, d. Peacock v. . . 144 
 Ramsbottom v. Brickhurst . 301 
 
 , Doe, d. Jackson v. 276 
 
 Rancliffe (Lord) v. Parsons . 289 
 Rand, Guy v. . . . 221 
 
 Ratclifle's case . . .66 
 
 v. Tate . . . 345 
 
 , Loveless v. . . 345 
 
 Rawsterne, Reading v. . . 54 
 
 Rawlings, Denn d. Brune v. 107, 110, 
 
 124, 304 
 
 , Tempest v. . .115 
 
 Rawson v. Maynard . . . 27 
 
 Reading v. Rawsterne . . 54 
 
 Reade, Doe, d. Burrough v. . . 71 
 
 , Peaceable, d. Hornblower 
 
 v. ... 56, 98 
 
 , Roe. Reade v. . . 32 
 
 , Doe, d. Marsack v. 129, 210, 
 
 277, 306 
 
 Rede v. Farr . . .198 
 
 Redfern, Doe, d. Hayne v. . .79 
 Rennie v. Robinson . . 276
 
 XXV111 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Rennet, Rex v. . 63 
 
 Rex v. Bishop of London . 19 
 
 v. Bery . . 183 
 
 v. Burgesses of Carmarthen 325 
 
 T. Erith . . . . 284 
 
 v. Eriswell . . 284,303 
 
 v. Harris . . . 34.5 
 
 v. Luffe 
 
 v. Mayor of Bristow . 
 
 v. Old Arlesford . 
 
 v. Rennet 
 
 v. Shelly . 
 
 v. Stoke . 
 
 v.Unitt . 
 
 Reynolds, Doe v. . 
 v. Pitt 
 
 Rhodes, Scrape v. . 
 Rice, Massey v. . 
 Rickhouse, Rochester v. 
 Rich, Goodright, d. Balsh v. 
 
 , d. Cullen v. Johnson 
 
 , Wilson v. ' . ' 
 
 , Ryal v. 
 
 Richardson v. Lengridge 
 
 , Burne v. 
 
 Rickarby, Doe, d. Hindly v. 
 Rider, Osbourn v. 
 Ridgway, Doe, d. Sutton v. 
 -, Higham v. 
 
 . 22 
 , 206 
 . 351 
 . 183 
 . 226 
 . 28 
 25, 26 
 . 276 
 . 309 
 . 201 
 . 154 
 . 106 
 . 383 
 . 318 
 . 223 
 . 360 
 . 283 
 . 334 
 . 291, 294 
 
 Rigley v. Lee 
 
 Right, d. Cater v. Price 
 
 , d. Dean of Wells v. Bawden 
 
 124 
 
 , d. Fisher v. Cuthell . 126, 128 
 
 , d. Flower v. Darby 124, 139, 
 
 140, 143 
 
 , d. Lewis v. Beard . 107, 121 
 
 , Birch v. 60. 109, 137, 154, 307, 
 
 381 
 
 , d. Freeman v. Roe 
 
 v. Wrong 
 Rivington v. Allen 
 Roake, Nowell v. 
 Roberts v. Cook 
 -, Fagg v. 
 
 Robinson, Millencr v. 
 -.Rennie v. 
 
 . 237 
 . 237 
 . 32 
 . 391 
 . 357 
 . 323 
 . 210 
 . 276 
 25,26 
 . 130 
 . 287 
 . 138 
 304 
 
 Rochester v. Rickhouse 
 
 Roe, d. Bamford v. Hayley 
 , d. Beebee v. Parker 
 , d. Bree v. Lees 
 , d. Brune v. Rawlins 
 , d. Burlton v.Roe 228,246, 264 
 , d. Cholmondley v. Doe . 325 
 , d. Cook v. Doe . . 266 
 , d. Cosh v. Loveless . 64, 309 
 , d. Crumpton v.Minshull 154, 
 174 
 
 , d. Dingley v. Sales . 179 
 
 , d. Durant v. Doe . . 375 
 , d. Ebrall v. Lowe . . 79 
 , d. Goatlyv. Paine . 184 
 
 PAGE 
 
 Roe, d. Gregson v. Harrison 178, 190, 
 191, 196 
 
 , d. Haldane v. Harvey . 32 
 
 , d. Hambrook v. Doe . 237, 244 
 
 d. Henderson v.Charnock 129, 
 
 141 
 
 , d. Humphries v. Doe . 347 
 
 , d. Hunter v. Galliers .159,180 
 > d. Hyde v. Doe . . 268 
 
 , d. Jackson v. Ashburner . 11.1 
 , d. Jeffreys v. Hicks 64, 98, 308 
 , d. Johnson v. Ireland . 309 
 , d. Jordan v. Ward . 105, 111, 
 143 
 
 , d. Kaye v. Soley . . 365 
 , d. Langdon v. Rowlston . 56 
 , d. Leak v. Doe . . 258 
 
 , d. Lee v. Ellis . . 228 
 
 , d. Matthews v. Jackson . 134 
 , d. Pellatt v. Ferrars . 57 
 
 , d. Raper v. Lonsdale 210 
 
 , d. Reade v. Reade . . 32 
 , d. Dean of Rochester v. 
 
 Pearce . 129,132,216,313 
 
 , d. Saul v. Dawson . . 341 
 
 , d. Stephenson v. Doe . 224 
 
 , d. Thorne v. Lord . . 282 
 
 , d. Truscott v. Elliott . 98 
 
 , d. West v. Davies 160, 162, 166, 
 
 168,169,311,316 
 
 , d. Wrangham v. Hersey .213 
 
 v. Wiggs . . 130, 235 
 
 v. Williamson . . 215 
 
 , Doe, d. Lord Aylesbury v.. 242 
 
 , , d. Bass v. . 233 
 
 , , d. Baddam v. . . 236 
 
 , , d. Bailey v. . 237 
 
 , , d. Beyer v. . . 342 
 
 , , d.Birdv. . . 232 
 
 , , d. Bradford (Earl of,) 
 
 v. . 374 
 
 , , d. Bromley v. . 237 
 
 , , d. Cardigan, (Earl of,) 
 
 v. ... 374 
 
 , , d. Clarke v. . 231 
 
 , , d. Cobbey v. . 225 
 
 , , d. Davis v. . . 323 
 
 , , d. Dry v. . . 239 
 
 , , d. Edwards v. . 244 
 
 , , d. El wood v. . 237 
 
 , , d. Evans v. . . 172 
 
 , , d. Feldon v. . 366 
 
 , , d. Fenwickv. . 240 
 
 , , d. Field v. . . 237 
 
 , -, d. Ginger v. . 263 
 
 , , d. Grocers' Company 
 
 v. . . 252 
 
 , , d. Harvey v. . 239 
 
 , , d. Hcblethwaite v. . 252 
 
 , , d. Hele v. . . 210 
 
 , , d . Jones v. . . 240 
 
 , , d. Leak v. . . 258
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 Roe, Doe, d. Ledger v. 
 -, d. Lewis v. 
 -, d. Lowe v. 
 
 PAGE 
 
 . 252 
 . 232 
 . 240 
 . 237 
 . 350 
 
 , d. M'Dougallv. 
 
 , d. Morgan v. . 
 
 , d. Governors of St. 
 
 Margaret's Hospital v. . 229 
 
 , d. Neale v. . . 239 
 
 , d. Pate v. . . 345 
 
 , d. Pearson v. . 230, 260 
 
 , d. Pemberton v. . 374 
 
 , d. Phillips v. . . 374 
 
 , d. Pinckard v. 
 
 , d. Quintin v. 
 
 -, d. Robinson v. 
 -, d. Rust v. . 
 -, d. Sampson v. 
 -, d. Shepherd v. 
 -. d. Seabrooke v. 
 -, d. Simmons v. . 
 
 359 
 244 
 245 
 272 
 374 
 211 
 172 
 236 
 232 
 237 
 
 , d. Thomos v. . 
 
 , d. Tindalv. 
 
 , d. Troughton v. 252, 267 
 
 , d. Tubb v. . . 363 
 
 , d. Whitfield v. 167, 244 
 
 , d. Wright v. . . 242 
 
 , Fenn, d. Buckle v. . 239 
 
 Ranger, d. Goodtitle v. . 207 
 
 Right, d. Freeman v. . . 237 
 
 Roe, d. Burlton v. 228, 246, 264 
 
 Baker v. . . . 19 
 
 Doe v. . 229, 237, 240, 245 
 
 Rogers v. Pitcher . . 69 
 
 Rolle, Gree r. . . 51, 100, 333 
 
 Rolfe v. Harris . . .183 
 
 Rosser, Doe, d. Morris v. . 92 
 
 Rowe, Doe d. Knight v. . . 190 
 
 , d. Boyce v. Power . 98, 329 
 
 v. Hasland . . 285 
 
 Rowlston, Roe, d. Langdon v. 56 
 Rowlinson, Timmins v. 106, 132, 154, 
 
 381 
 
 Rowell, Clerke v. . . 215, 327 
 
 Rowkeley, Lee v. . . 334 
 
 Royston v. Eccleston . 23, 27, 28 
 Rudston v. Yates . . 67 
 
 Russel, Webb v. . . 76, 190 
 
 Rumney v. Eves . , . . 286 
 
 Ryal v. Rich > . . .154 
 
 S. 
 
 Saint Leger v. Adams . . 289 
 
 Saint John v. Comyn . . 24, 25 
 
 Sales, Roe, d. Ding ley v. . 179 
 
 Salisbury (Lord's) case . 307 
 
 , Focus v. . . 101 
 
 Salter, Doe, d. Toilet v. . 220 
 
 -, , d. Prior v. . 337 
 
 Saltonstall, Capel v. . . 228 
 
 Samuel, Doe d. Castleton v. 143, 315 
 
 Sandwich, (Lord's,) case . . 324 
 
 PAGE 
 
 Savel's case . . .27 
 
 Hamond v. . 27 
 
 Savage v. Dent . . 199, 205 
 
 Saville, Goodtitle, d. Luxmore v. 186 
 Say and Sele (Lord) Jones v. 82, 83 
 Sayer, Doe, d. Leeson v. . 107, 123 
 Scott, Doe, d. Graham v. .89 
 
 , , d. Foster v. . . 50 
 
 , , d. Campbell v. . 140 
 
 Scrape v. Rhodes . . . 226 
 
 Scrutton, Driver, d. Scrutton v. 226 
 Seagrave, Sullivane v. . .27 
 
 Seawell, Bond v. . . 293 
 
 Seers v. Hind . . 190,191 
 
 Seed, Tyley v. . , . 141 
 
 Selwyn, Doe, d. Wadmore v. . 145 
 Semayne's case . . . 342 
 
 Serle, Claxmore v. . . . 323 
 
 Seymour's case . . 36, 96 
 
 Sbamtitle, Fairclaim, d. Fowler v. 
 
 14,54,55,257,259,261 
 Shackleton, Fairclaim, d. Emp- 
 
 son v. . . 53, 54 
 
 Shank, Douglas v. 
 Shapland v. Smith . 
 Sharpe, Chapman v. . 
 
 Hodson v. 
 
 Shawcross, Doe, d. Lawrence v. 
 Sharrington v. Strotton u ^ 
 Sherman v. Cocke . 
 Shelly, Rez v. 
 
 , Musgrave, d. Hilton v. 
 
 Sherwin, Earl of Bath v. 
 
 , Doe, d. Pitt v. 
 
 Shirley v. Newman 
 
 Shires v. Glasscock . . 
 
 Short v. King . 
 
 v. Heath 
 
 , d. Elmes v. King 
 
 Silvester, d. Law v. Wilson 
 Sil ley, Collins v. 
 Sims, Knight v. 
 Sindercombe, Bindover v. 
 Skinner v. Stacey 
 -, Ablett v. 
 
 222 
 82 
 66 
 276 
 213 
 47" 
 199 
 298 
 96 
 352 
 . 183 
 . 141 
 . . 293 
 356, 359 
 . 393 
 . . 239 
 89 
 . 76 
 . 28 
 . 23, 27 
 . 364 
 . 221 
 Slade's case . . .70 
 
 , England, d. Sybourn v. 89, 
 
 276 
 
 Sleabourne v. Bengo . . 330 
 
 Smales v. Dale . . . 98 
 
 Smartle v. Williams . . 61 
 
 Smartley v. Henden . . 202 
 
 Smart, Wharod v. . . 350 
 
 , Fenn, d. Matthews v. 98, 190 
 
 Smalley v. Neale . . 239 
 
 Small, d. Baker v. Cole . 324, 331 
 Smith, d. Ginger v. Barnardiston 339 
 
 357 
 
 , Doe, d. Bland v. . . 302 
 
 , Doe d. Chere v. . . 191 
 
 , Doe, d. Hanson v. . 298 
 
 , Lady, Doe, d. Knight v. . 260
 
 XXX 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Smith, Doe, d. Lord Jersey v. . 162 
 
 , Doe, d. Smith v. . . 299 
 
 , Doe, d. Bromfield v. 116, 125 
 
 , Knight, d. Phillips v. . 85 
 
 , Throgmorton, d. Miller v. 354 
 
 . Blackham , v . 280 
 
 .Barrett .- . . 19 
 
 .Crabb . i . 264 
 
 . Evans . . 291 
 
 Spooner . . . 168 
 
 , Vernon . . 74, 75 
 
 , Brice. v. . . 294 
 
 , Davy v. . 293 
 
 , Ellis v. . 291, 292 
 
 , Merrellv. . . 225 
 
 , Shapland v. .-. . 82 
 
 Snapp, Archer, d. Hankey v. . 365 
 Snell, Bird v. . . 204 
 
 Snow, d. Crawley v. Phillips . 302 
 Snowdon, Doe, d. Daggett v. . 147 
 Soley, Roe, d. Kaye v. . . 365 
 Somerville, Doe d. Cates v. .121 
 Soulsby v. Neving . . 154 
 
 Spark, Weeks v. . . . 284 
 
 Sparkes's case . . .63 
 
 Sparrow, Wykes v. . . . 28 
 
 Spence, Doe d. Strickland v. 146, 147 
 Spencer's case . .73 
 
 , Doe, d. Clarke v. . 67, 68 
 
 . , d. Osborne v. . 98 
 
 Spiller, Doe v. .-"'' . 133 
 
 Spooner, Smith v. . . 168 
 
 Spray, Denn, d. Goodwin v. 
 Sprightley, d. Collins v. Dunch 
 Spry, Doe, d. Gaskell v. 
 Spurrier, Dann v. . 
 
 Stanton, Doe, d. James v. 
 Stanley, Asbworth v. 
 -, Leymayne v. 
 
 . 287 
 . 239 
 . 182 
 . 138 
 . 277 
 . 25 
 . 290 
 23, 25 
 33, 89 
 . 364 
 . 338 
 
 Stafford, Macdunoch v. 
 
 Staple, Doe d. Hodson v. 
 
 Stacey, Skinner v. . 
 
 Stapely, Morgan v. 
 
 Stephens, Copelandv. . . 69 
 
 Sterne, Pemble v. . . 22, 28 
 
 Stennett, Doe, d. Hollingsworth 
 
 v. ... 107, 122 
 Steele, Doe, d. Digby v. . 151, 300 
 Stephens v. Elliot . . . 63 
 
 Stephenson, Doe,'d. Walker v. 298, 355 
 Stephens v. Croker . . 223 
 
 Stoke, Rex v. . .22 
 
 Stone, Jurdan v. f f - ' ' . 66 
 Story. Windsor v. *' .56 
 
 Stockerv. Barney . . . 77 
 
 Stonehouse v. Evelyn . . 291 
 
 Stowell v. Zouch . 58, 59, 97, 102 
 Stradling, Doe v. . . 277 
 
 , Sullivan v. . . 276 
 
 Stratton, Doe, d. Tilt v. . 112 
 
 Strother, Goodright d. Small- 
 wood v. . ' 30, 218 
 
 PAGE 
 
 Strotton, Sharrington v. . 47 
 
 Stroud, Hems v. . . 29, 304 
 
 Sturgeon v. Painter . . 114 
 
 Sturdy, Pure, d. Withers v. .170 
 
 Sturt v. Mellish . 58 
 
 Sullivan v. Stradling . . 276 
 
 v. Seagrave . . 37 
 
 Swann, Fox v. . . 177, 192, 280 
 Swadling v. Piers *'.* .217 
 
 Sykes, d. Murgatroyd v 124 
 
 Symonds, Whiteacre, d. Boult v. 153 
 Syms, Dumpor v. . . 190 
 
 T. 
 
 Tailbois, Wimbish v. . 43, 44 
 
 Tankard, Whaley v. . . 97 
 
 Tapner, d. Peckham v, Merlott 95, 99 
 Tate, Ratcliffe v. . . 345 
 
 Tatham, Jones v. . . . 173 
 
 Tavenor, Pierson v. . . 345 
 
 Taylor, d. Atkins v. Horde 41, 327. 
 
 339 
 
 v. Cole . 
 
 v. Jefts 
 
 v.Wilbore 
 
 69 
 235 
 332 
 213 
 294 
 115 
 3] 7 
 
 Telling, Doe, d. Weatley v. 
 
 Temple, Macbel v. 
 
 Tempest v. Rawlings 
 
 Tenny d . Gibbs v. Moody 82 
 
 Thatcher, Hazlewood, d. Price v. 233 
 
 Thompson v. Maberly . . 137 
 
 , Kirkman v. 
 
 , Barwick, d. Mayor of 
 
 Richmond v. 
 
 Thomas d. Jones v. Thomas . 
 William, d. Hughes v. . 
 
 v. Goodtitle 
 
 , Challenor v. 
 
 40 
 
 , Kesworth v. 
 
 , Doe, d. Courtall v. 
 
 , Doe, d. Rees v. 
 
 Tborne, Jones v. 
 
 , Doe, d. Enimett v. 
 
 Thornby d. Hamilton v. Fleet- 
 wood ' . . . 338 
 Thorpe v. Fry . . 389 
 
 , Hatfield v. . . . 296 
 
 Throgmorton d. Fairfax v. Bent- 
 ley ... 323 
 
 d. Miller v. Smith . 354 
 
 Threr v. Barton . 76, 190 
 
 Tbredder v. Travis . . 231 
 
 Tbrustout d. Dunham v. Percival 355 
 
 , Farmer d. Miles v. . 239 
 
 , Goodright d. Wadding- 
 ton v. ... 208 
 
 , Goodright d. Jones v. 236, 
 
 355 
 , Hyde d. Culliford v. . 252
 
 TABLE OF CASES CITED. 
 
 XXXI 
 
 PAGE 
 
 Thrustout, d. Parke v. Trouble- 
 some . . 359, 361 
 , d. Turner v. Gray 226, 320, 
 
 354 
 
 , d. Wilson v. Foot . 335 
 
 , d. Williams v. Holdfast 
 
 356, 359 
 
 , v. Bedwell . 320,335 
 
 Thunder d. Weaver v. Belcher 61 , 107, 
 109, 122,307 
 
 Thyn v. Thyn . .19 
 
 Tiley v. Bailey . . 337 
 
 Timmins v. Rowlinson 106, 132, 154, 
 
 381 
 
 Todd v. Lord Winchelsea . 293 
 
 Tomkins, Lowthal v. . 69 
 
 Tombs, Goodtitle v. 383, 391 
 
 Toogood, Bagshaw d. Ashton v. 239 
 Toulson, Wheeler v. . 21. 22 
 
 Townsend v. Ives . . 297 
 
 Travis, Thredder v. . . 231 
 
 Treport's case . . . 209 
 
 Tredway v. Harbert . 355, 356 
 Troublesome, Peaceable, v. . 233 
 
 , Thrustout, d. Parke 
 
 v. . 359, 361 
 
 Trussell, Doe, d. Lep ping well v. 339 
 Trapaud, Doe, d. Clarke v. . 307 
 Trymmer v. Jackson . . 291 
 
 Tunstall, Duckworth, d. Trebly, 
 
 v. ... 171 
 
 v. Brend . . . 208 
 
 Tupper d. Mercer v. Doe . 237 
 
 Turner, Bourne v. . . 279 
 
 v. Barnaby . 322, 334 
 
 Tyley v. Seed . . 141 
 Tyrrell, Davenport v. . 56 
 , Doe, d. Lord Tynhatn v. 280 
 
 U. 
 
 Underbill, Devereux v. . 345 
 
 Unitt, Rex v. . . 206 
 
 Upton v. Wells . . 344 
 
 Uttersou v. Vernon . . 385 
 
 V. 
 
 Vernon, Doe, d. Vernon v. 65, 298 
 v. Smith . 74, 75 
 
 , Utterson v. . . 385 
 
 Vicars v. Haydon, d. Carrol . 228 
 Vice, Goodright, d. Rowell v. . 334 
 Vivian, Goodright, d. Peters v. 182 
 
 v. Arthur . . 75 
 
 Vince, Doe, d. Hinde v. . 136, 146 
 Vowels v. Young . 283, 284, 286 
 
 Wade v. Cole 
 
 W. 
 
 PAGE 
 
 Wadman v. Calcraft . .171 
 
 Waddy v. Newton . . 20 
 
 Wagstaff, Gulliver v. . 243 
 
 Wakefield, Goodgaine v. . 223 
 
 Wakeley, Warren v. . 25, 28, 222 
 Walthew, Ward v. .40 
 
 Walton, Goodtitle v. . . 25 
 
 Wallis, Law v. . . . 324 
 
 Walter, Goodtitle, d. Bembridge 
 
 v. . . 218, 220 
 
 Wandlass, Doe, d. Forster v. 168,342 
 Warneford v. Warneford . 291 
 
 Warren v. Wakeley 25, 28, 222 
 
 , Pulteney v. . . 383 
 
 Warden's case . . 29 
 Ward v. Pettifer . . . 21 
 v. Walthew . . 40 
 
 , Roe, d. Jordan v. 105, 111, 143 
 
 Warwick, Doe, d. Giles v. . 277 
 Watt, Doe, d. Henniker v. . . 188 
 Watson, Doe d. Lowdon v. . 276 
 v. King . . 285 
 
 Watkins, Doe, d.Lord Bradford v. 131, 
 132, 148 
 
 Watts, Doe, d. Martin v. .111 
 
 Watts, Doe, d. Duckett v. . 95, 99 
 
 Way, Goodtitle, d. Estwick v. . 80, 
 
 112, 114 
 
 Webb v. Russell . 76, 190 
 
 Wedgwood, Halsal v. . . 239 
 Weeks v. Sparkes . . 284 
 
 , Eastcourt v. . 63 
 
 Wells, Upton v. . . 344 
 
 Wellington, Danvers v. . 26 
 
 Welsh. Beck, d. Hawkins v. . 67 
 
 , Doe, d. Gunson v. . . 277 
 
 Wells, Bally v. . .73 
 
 Weakley, d. Yea v. Bucknell 33, 112 
 Weller, Doe, d. Collins v. . 143 
 
 Wemsley, Howard v. . . 139 
 
 Weston, Heatherley,d. Wortbing- 
 
 ton v. ... 210 
 
 West, Connor v. . 24, 28 
 
 Wharod v. Smart . . 350 
 
 Whaley v. Tankard . . 97 
 
 Wharton, Doe, d. Da Costa v. 32, 61, 
 65,70,110, 304 
 
 Wbayman, Doe, d. Chaplin v. . 128 
 Wheeler v. Toulson . 21,22 
 
 , Doe, d. Bedford v. . 192 
 
 Wheatley, Comyn v. . 20 
 
 , Wright v. .23 
 
 Whitlockev. Baker . .286 
 
 White, Trustees of British Mu- 
 seum, v. . . . 291 
 
 , Denn -v. . . 390 
 
 , Maddon, d. Baker v. 67,126 
 
 Whiteacre, d. Boult v. Symonds 153 
 Whitehead, Doe, d. Odiarne v. 37, 96 
 Whitley, Johns v. . . 198 
 Wiggs,Roev. . 130,235 
 Wilson v. Rich . . 201 
 v.Hodges . . . S82
 
 NOTICES, 1831. 
 
 Section 4. " Provided always, that notwithstand- 
 (< ing any judgment signed or recorded, or execution 
 " issued, by virtue of this act, it shall be lawful for 
 " the court in which the action shall have been brought, 
 " to order such judgment to be vacated, and execu- 
 " tion to be stayed or set aside, and to enter an 
 " arrest of judgment, or grant a new trial, or new writ 
 " of inquiry, as justice may appear to require ; and 
 " thereupon the party affected by such writ of execu- 
 " tion shall be restored to all that he may have lost 
 " thereby in such manner as upon the reversal of a 
 
 judgment by writ of error, or otherwise as the court 
 
 may think fit to direct." 
 
 Section 5. tc Provided always, and be it further 
 f( enacted, That nothing in this act contained shall be 
 " deemed to frustrate or make void any provision re- 
 " lating to the issuing of any writ of habere facias 
 <e possessionem contained in the act passed in the first 
 " year of the reign of his present Majesty, intituled, 
 ee An Act for the more effectual Administration of 
 " Justice in England and Wales." Vide page 376, 
 &c. 
 
 The presiding judge in trials of ejectment has there- 
 fore the power of certifying either under the Stat. 
 II G. 4, & 1 Wm. 4. c. 70, s. 38, or Stat. 1 Wm. 4, 
 c, 7. s. 2. 
 
 (C 
 
 By Reg. Gen. of the courts of King's Bench, Com- 
 mon Pleas, and Exchequer of Trin. Term, 1 Wm. 4, 
 it is ordered, " That declarations in ejectment may 
 <f be served before the first day of any term, arid 
 f< thereupon the plaintiff shall be entitled to judgment 
 " against the casual ejector, in like manner as upon 
 " declarations served before the essoign or first gene- 
 " ral return day." Vide page 234, &c.
 
 A 
 
 / 
 
 TREATISE 
 
 ON THE 
 
 ACTION OF EJECTMENT. 
 
 CHAPTER I. 
 
 Of the Origin, Progress, and Nature of the Action 
 of Ejectment. 
 
 THE action of ejectment is a fictitious mode of 
 legal proceeding, by which possessory titles to cor- 
 poreal hereditaments 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 tres- 
 pass to recover the damages sustained by a lessee for 
 years, when ousted of his possession, it has gradually
 
 2 ON THE ORIGIN, &C. OF THE 
 
 usurped the place of all the ancient remedies for the 
 recovery of possessory rights to real property, 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 grada- 
 tions, it will be found continually moulding itself to 
 the condition 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 un- 
 known. Under the feudal system, war was the pri- 
 mary object even of legislation ; and it is therefore by 
 no means surprising, that the interests of the inferior 
 tenantry were then disregarded, and the remedies 
 for the recovery of lands altogether confined to free- 
 hold titles, vested in the superior landholders. The 
 lords, indeed, seldom permitted their vassals to enjoy 
 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 determinate 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
 
 ACTION OF EJECTMENT. 6 
 
 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 proceed- 
 ings upon the writ of covenant. It only lay between 
 the immediate parties to the grant, and, as it fre- 
 quently 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, notwithstanding the breach of the original con- 
 tract, enabled to recover only damages for the injury 
 he had sustained, but had no means of regaining pos- 
 session of the land from which he had been ousted, (a'j 
 
 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 of the grantee, 
 even upon a breach of the grant. In that reign the 
 first symptoms of a more enlightened policy appeared ; 
 and by the wisdom of the court and council, a full 
 remedy was provided for a termor, who was dis- 
 possessed of his land, against all persons whatsoever, 
 claiming under the title of the grantor, (a) 
 
 The writ invented for this purpose was, accord- 
 ing to Bracton (a), called the writ of quare ejecit 
 infra termimtm, and required the defendant to show 
 wherefore he deforced the plaintiff of certain lands, 
 which A. had demised to him for a term then un- 
 
 () Bracton, I). 4. f. 220 
 
 B2
 
 4 OF THE ORIGIN, &C. OF THE 
 
 expired, within which term the said A. sold the lands 
 to the defendant, by reason of which sale the defend- 
 ant ejected the plaintiff therefrom. 
 
 The language, indeed, used by Bracton (), when 
 speaking 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 les- 
 see ; and this interpretation has been adopted by a 
 learned writer on the English law (). On a minute 
 investigation, however, it will appear that Bracton 
 meant only to include the grantor himself, or persons 
 claiming under him. One passage certainly militates 
 against this conclusion, " Si autem alius quam qui 
 tradidit ejecerit, si hoc fecerit cum AUTORITATE et 
 VOLUNTATE trctdentis, uterque tenetur hoc juditio, 
 unus propter factum, et alius propter autoritatem. 
 Si autem sine VOLUNTATE, tune tenetur eject or utrique, 
 tarn domino proprietatis, quam Jirmario : Jirmario 
 peristud breve, domino proprietatis per assisamnova 
 disseysina, ut unus rehabeat terminum cum damnis, 
 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 firmam traditum alicui dederit in 
 dominico tenendum, seysinam ei facer e 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 
 
 fa) Bracton, b. 4. f. 220. 
 
 (6) Reeves, Eng. Law, Vol. I. p. 341.
 
 ACTION OF EJECTMENT. 
 
 had enfeoffed another, without intending thereby to 
 injure his grantee, and such feoffee afterwards en_ 
 tered upon him. This interpretation is also most 
 consistent with the spirit of the times in which Brae- 
 ton wrote. It was then held that a man could not 
 enter vi et armis into his own freehold, and the writ 
 Square ejecit infra terminum is not a writ of tres- 
 pass 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 (a) also, when de- 
 scribing 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 con- 
 tended for be incorrect, it seems quite unaccountable, 
 that, more than half a, century after the time of Brae- 
 ton, a new writ, namely, the writ of ejectionejirmtf, 
 
 (a) Thus, in Hil. Term, 3 Ed- writ but his writ of covenant ; and 
 
 ward J. "In quare ejecit plaintiff although by the law a special writ 
 
 shall recover his term and damages of quart ejecit is ordered against a 
 
 by him sustained by reason of the stranger, a feoffee, nevertheless the 
 
 sale." (Stat. Ab. tit. qua. ejec.') In lessee is not ousted of his writ of 
 
 the Reg. Brev. (p. 227.) " Fuit hoc covenant against the lessor." This 
 
 breve inventum per discretum virum latter doctrine is exactly that laid 
 
 Whillielmum de Merton ut termi- down in Bracton. So also per 
 
 naj-iut recuperet cataUa sua versus Choke J. (21 Edw. IV. 10. 30.) 
 
 FEOFFATUM." In a case in HiL " Quare ejecit, $c, lieth where one 
 
 Term, 46 Edw. III. 4. 12. per Ful- is in by title, ejections firmce where 
 
 thorpe, Justice, " If a stranger oust one is by wrong :" and per totam 
 
 a lessee by reason of a feojfinent, curiam (19 Henry VI. 56. 19.), " If 
 
 in that case he is put to his action a man lease for years, and sell to 
 
 upon the writ of quare ejecit;" F. who oustes the termor, the les- 
 
 and in the same case, per Finch- see shall have a </ore ejecit, and 
 
 den, J. " In such case, at the com- recover his term and damages." 
 mon law the lessee had no other
 
 6 OF THE ORIGIN, &C. OF THE 
 
 which only gave the plaintiff damages, and did not 
 restore the term, should have been invented for les- 
 sees against strangers, when one so much more bene- 
 ficial was already in existence. 
 
 The writ of quare ejecit might be drawn either 
 as a pr&cipe, or a si te fecerit securum, and, when 
 first invented, the pracipe 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 (a) has con- 
 sidered the invention of the writ to be posterior to the 
 statute of Westminster the second, (b) 
 
 The plaintiff by this writ, as by the old writ of 
 covenant, recovered both his term and damages, if 
 the term were unexpired, or his damages only in 
 case of its expiration 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. 
 
 (a) The inaccuracy of Fitzher- reasons are given for its origin, 
 bert, when speaking of this writ, is The inaccuracy is evident also from 
 remarkable. .He considers its in- another circumstance. WALTER E 
 vention as posterior to the statute MERTON, called by Fitzherbert Wil- 
 of Westminsters. (13 Edw.T.), and Ham de Moreton, and in the Reg. 
 as intended to remedy a partial Brev. William de Merton, (the in- 
 evil, occasioned by the writ of ventor of the writ), was Chancellor 
 ejectione jirmte. (F. N. B. 458.) in the reign of Henry III. (Dug- 
 Bracton, however, who wrote in dale's Chron.), and died in the 
 the reign of Henry III. speaks of sixth year of Edward .1. (Matt, 
 the writ as in use in his time, and Westmon. p. 366.), seven years be- 
 as having been invented to remedy fore the statute of Westminster 2 
 the inconveniences attendant on was enacted, 
 the old writ of covenant. In the (b) F.N B. 458. 
 Keg. Brev. (227.) also, the same
 
 ACTION OF EJECTMENT. 7 
 
 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 remedy for himself, and in the reign of King Ed- 
 ward II. or in the early part of that of Edward III. (a) 
 a writ was invented, 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 indeed where the grantor him- 
 self 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 cer- 
 tain lands which had been demised to the plaintiff 
 for a term then unexpired, and ejected him from the 
 possession thereof; and comprised all cases, with the 
 single exception already mentioned, in which the 
 second lessee, coming into possession by means of a 
 
 (a) The first recorded instance in the 44tli year of Edward 111. 
 of an action of cjcclionc Jinnee, is (Trin. 11 Kdw. III. 22. '.Jo.)
 
 8 OF THE ORIGIN, &,C. OF THK 
 
 title, could not be said to be a trespasser. Even the 
 grantor was liable to be sued upon this new writ, 
 notwithstanding the old doctrine, that a man could 
 not enter vi et armis into his own freehold, (a) As, 
 however, the plaintiff did not possess a freehold 
 interest, his title to the lands was only so far acknow- 
 ledged 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 dis- 
 similar from the present practice, that the modern 
 remedy by ejectment is founded. 
 
 Whilst the feudal system continued in its vigour, 
 and estates for years retained their original character, 
 but little inconvenience resulted to tenants from this 
 imperfect remedy. But when the feudal policy 
 declined, and agriculture became an object of legis- 
 lative regard, the value and importance of estates of 
 this nature considerably increased, and it was neces- 
 sary to afford to lessees for years a more effectual 
 protection. It then became the practice for lease- 
 holders, 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 per- 
 petual injunctions to quiet the possession ; and these 
 courts would then compel a restitution of the land 
 itself to the party immediately injured, (b) 
 
 The courts of common law soon afterwards adopted 
 
 (a) F. N. B. 505. (6) GUb. Eject, p. 2.
 
 w 
 
 n 
 
 ACTION OF EJECTMENT. 9 
 
 this method of rendering substantial justice : not in- 
 deed by the invention of a new writ, which perhaps 
 would have been 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 there- 
 upon. 
 
 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 im- 
 possible, to ascertain with accuracy the precise period 
 when the alteration itself took place ; although it cer- 
 tainly must have been made between the years 1 455 
 and 1499, since in the former year it is said by one 
 of the judges, (a) that damages only can be recovered 
 in ejectment; and an entry of a judgment is still ex- 
 tant, given in the latter of those years, that the plaintiff' 
 in ejectment shall recover both his damages and his 
 term. (6) 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 asser- 
 tion, nor is any decision upon the point on record 
 until the time of the entry already mentioned. (<?) 
 
 But, whatever might be the causes which occa- 
 
 () Per Choke J. Mich. 33 Hen. (<) Brooke's Ab. tit. Quure cjc- 
 VI. 42. 19. tit, Iblio 167. 
 
 (/>) Kast. But. '253, () .
 
 10 OF THE ORIGIN, &C. OF THE 
 
 sioned this alteration, the effects they produced were 
 highly important. A new efficacy was given to the 
 action of ejectment, the old real actions fell into dis- 
 use, and in the subsequent 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 proceeding 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 freeholders should take ad- 
 vantage 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 origi- 
 nated in the Court of King's Bench, as an indirect 
 method of giving to that court a concurrent jurisdic- 
 tion 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 
 disputed titles, the proceedings were simple and re- 
 gular, differing but little from those previously in 
 use, when an ejectment was brought to recover the 
 damages of an actual trespass. The right to the free-
 
 ACTION OF EJECTMENT. 11 
 
 hold could only be determined in an indirect manner. 
 It was a term which was to be recovered by the judg- 
 ment in the action, and it was therefore necessary 
 that a term should be created ; and as the injury com- 
 plained 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. 
 
 In order to obtain the first of these requisites, 
 namely, a term, the party claiming title entered upon 
 the disputed premises, accompanied by another per- 
 son, 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 himself 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, (a) 
 
 It is from the necessity of this entry also, that the 
 remedy by ejectment is confined to cases in which the 
 claimant 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 suf- 
 ficient 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. 
 
 (a) 1 Ch. Rep. Append. 30.
 
 12 OF THE ORIGIN, &C. OF THE 
 
 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 pos- 
 sidendi, or, according to the old authorities, even by 
 chance (a), was accounted an ejector of the lessee, 
 and a trespasser on his possession. A writ of tres- 
 pass 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 les- 
 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 plaintiff (the lessee) to ob- 
 tain a verdict. The claimant's title was thus indi- 
 rectly determined ; and although the writ of posses- 
 sion 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 pro- 
 ceeding could be attended with no ill consequences. 
 As the party previously in possession, must in con- 
 templation of the law be upon the lands, and cer- 
 tainly, 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 sim- 
 ple method was found to be productive of consider- 
 able evil. It was easy for the claimant to conceal the 
 
 () 1 LU. Prac. Reg. 673.
 
 ACTION OF EJECTMENT. 
 
 13 
 
 proceedings from the person in possession, and to 
 procure a second friend to enter upon the lands, and 
 eject his lessee immediately after the execution and 
 delivery of the lease. The lessee would then com- 
 mence his suit against this ejector, and the party in 
 possession mightconsequently.be ousted of his lands, 
 without any opportunity of defending 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 
 practice 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 appli- 
 cation was uniformly granted, upon his undertak- 
 ing to indemnify the defendant (the third person) from 
 the expenses of the suit. The action however pro- 
 ceeded 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 pro- 
 ceeding 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 making him, as be- 
 fore, the trespasser and defendant. A reasonable 
 time was allowed by the courts, for the person in pos- 
 session, after the receipt of the notice, to make his 
 application for leave to defend the action, and if he
 
 14 OF THE ORIGIN, &C. OF THE 
 
 neglected to do so, the suit proceeded against 
 the casual ejector, as if no notice had been ne- 
 cessary. 
 
 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 remedy grew into general use. (a) It seems also 
 to have been the first instance, in which the courts in- 
 terfered in the practice of the action, and is therefore 
 remarkable as the foundation of the fictitious system, 
 by which it is now conducted. 
 
 In this state, with the exception of a few practical 
 regulations, 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 different te- 
 nants, and to commence separate actions upon the 
 several leases. () Difficulties also attended the mak- 
 ing of entries, and the action of ejectment had by this 
 time grown into such general use, as to make these 
 inconveniences 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 
 
 (a) Fairclaim d. Fowler v. Sham- (6) Co. Litt. 252. Argoll v. Che- 
 title, Burr. 12901^97. ncy, Palm. 402.
 
 ACTION OF EJECTMENT. 15 
 
 ejectment was invented by him, which at once super- 
 seded the ancient practice, and has by degrees be- 
 come fully adapted to the modern uses of the ac- 
 tion, (a) 
 
 By the new system, all the forms which we have 
 been describing are dispensed with. No lease is 
 sealed, no entry or ouster really made, the plaintiff 
 and defendant in the suit are merely fictitious names, 
 and in fact all those preliminaries are now only 
 feigned, which the ancient practice required to be ac- 
 tually 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 tLis place a 
 brief outline of the system, although a detailed ac- 
 count will be hereafter necessary. 
 
 A. the person claiming title, delivers to B. 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 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 
 
 (a) Styles, Prac. Reg. 108. (ed. 1657.)
 
 16 OP THE ORIGIN, &C. OF THE 
 
 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 ap- 
 ply 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 judgment to 
 be entered against D. the casual ejector, and pos- 
 session of the lands will be given to A. the party 
 claiming title. When, however, B. applies, pur- 
 suant to the notice, to defend the action, the courts 
 annex certain conditions to the privilege. Four things 
 are necessary to enable a person to support an 
 ejectment, namely, title, lease, entry, and ouster ; 
 and as the three latter are only feigned in the mo- 
 dern 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 his 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 judg- 
 ment to be entered against D. the casual ejector. 
 These conditions being complied with, the declara- 
 tion is altered, by making B. the defendant instead of 
 -D., and the cause proceeds to trial in the same man- 
 ner as in other actions. 
 
 The advantages resulting from this method are ob-
 
 ACTION OF EJECTMENT. 17 
 
 vious : the claimant is exempted from the observance 
 of useless forms, and the tenant admits nothing 
 which can prejudice the merits of the case. 
 
 It could not indeed be expected that a change so 
 extensive should, in the first instance, be entirely 
 free from defects, nor that it would not, like other 
 innovations, occasion 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 systems, and not to 
 have established, so distinctly as might have been de- 
 sired, the principles which were to regulate the pro- 
 ceedings they had so newly adopted. The action has, 
 however, now attained a considerable degree of per- 
 fection. Its principles are clearly understood, and its 
 practice is reduced 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 safe and expeditious method of trying 
 possessory titles, unembarrassed by the difficulties 
 attendant on real actions, and well adapted to the 
 purposes of substantial justice.
 
 18 
 
 CHAPTER If. 
 
 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 incorporeal inherit- 
 ance, 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 is now exploded, though in point 
 of form, a chapel should still be demanded as a mes-
 
 OF WHAT THINGS AN EJECTMENT WILL LIE. 19 
 
 suage. (ct) A church may be also recovered in an 
 ejectment when so demanded ; (b) and it is in one 
 case said in argument, that after collation, ejectment 
 will lie for a prebendal stall, (c) 
 
 A common appendant or appurtenant may be 
 recovered in an ejectment, brought for the lands to 
 which it is appendant or appurtenant, provided such 
 right of common be mentioned in the description of 
 the premises ; because he who has possession of 
 the land has also 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 appendant or appurtenant, although 
 it has been held after verdict, that an ejectment for 
 lands and also for " common of pasture,'' generally, 
 is sufficient, (tf) 
 
 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 buckets of salt water drawn out of a particulor 
 salt-water well ; for by the grant of a boilary of salt 
 the soil shall pass, inasmuch as it is the whole profit 
 of the soil, (e) 
 
 (a) Harpur's case, 11 Co. 25, (b) (d) Baker v. Roe, Cas. Temp. 
 Thyn v. Thyn, Styles, 101. Doc. Hard. 127. Newman t-. Hold- 
 Plac. 291. myfast, Stran. 54. 
 
 (b) HiDingsworth v. Brewster, (e) Smith v. Barrett, Sid. 161. 
 Salk. 256. S. C. 1 Lev. 114. Co. Litt. 
 
 (c) The King t;. the Bishop of 4, (l>). 
 London, 1 Wils. 11. 14.
 
 20 OF WHAT THINGS 
 
 Upon the same principle an ejectment may be 
 maintained for a coal mine, for it is not to be con- 
 sidered as a bare profit apprender, but as compre- 
 hending the ground or soil itself, which may be 
 delivered in execution ; and though a man may 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 
 possession, (a) 
 
 When a grant of mines is so worded as not to ope- 
 rate as an actual demise, but only as a licence to dig 
 search for and take metals and minerals within a 
 certain district during the term granted ; it seems 
 that a party claiming under such a grant, and who 
 shall open and work and be in actual possession of 
 any mines, may if ousted maintain ejectment in 
 respect of them ; but he cannot maintain ejectment 
 either in respect of mines within the district, which 
 he has not opened, or which, having opened, he has 
 abandoned. (6) 
 
 In the old cases it is holden, that an ejectment 
 will not lie for a fishery, because it is only a profit 
 apprender; (c) but it is said by Ashhurst, J. in the 
 case of The King v.the Inhabitants of Old Arlesford, 
 (d) ' There is no doubt but that a fishery is a tene- 
 
 (a) Comyn v. Kineto, Cro. Jac. (c) Molineaux v. Molineaux, 
 
 150. Comyn v. Wheatly, Noy. Cro. Jac. 144. Herbert v. Laugh- 
 
 121 - lyn, Cro. Car. 492. Waddy v. 
 
 (6) Doe. d. Hanley v. Wood, 2 Newton, 8 Mod. 275277. 
 
 B. & A. 724. Crocker v. Fothergill, (d) I T. R. 358. 
 2 B. & A. 652.
 
 AN EJECTMENT WILL LIE. 21 
 
 ment; trespass will lie for an injury to it, and it may 
 be recovered in ejectment." 
 
 But an ejectment will not lie for a watercourse 
 or rivulet, though its name be mentioned, because it 
 is impossible to give execution of a thing which is 
 transient, and always running. When, however, 
 the ground over which the rivulet runs, is the pro- 
 perty of the claimant, the rivulet may be recovered, 
 by laying the action for tf so many acres of land 
 covered with water." (a) An ejectment may be main- 
 tained for a pool, or pit of water, because those 
 words comprehend both land and water, (b) 
 
 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, recover the land, and the sheriff give 
 possession of it, subject to the public easement, (c) 
 
 An ejectment will lie pro primd tonsurd: that is 
 to say, if a man has a grant of the first grass which 
 grows on the land every year, he may maintain eject- 
 ment against him who withholds it from him. (d) So 
 also a demise of the hay-grass and after-math is suffi- 
 cient to support an ejectment, (e) And the princi- 
 ple seems to be this, that the parties in these cases, 
 
 (a) Challenor v. Thomas, Yelv. (<f) Ward v. Petifer, Cro. Car. 
 
 143. 362. 
 
 (6) Ibid. Co. Litt 5, (b.) (e) Wheeler v. Toulson, Hard. 
 
 (c) Goodtitle d. Chester v. Alker, 330. 
 Bur. 133. 145.
 
 22 OF WHAT THINGS 
 
 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 entitled, 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 instance to show 
 that he was entitled to the primd tonsurd 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, (a) 
 
 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 soil itself does not pass. 
 But the ejectment should be for the herbage of the 
 land, and not for the land itself. (6) 
 
 In like manner an ejectment will lie for the pasture 
 of a hundred sheep, (c) 
 
 .-.-. / , 
 
 But a right to the pannage is not enough, because 
 pannage is only the mast which falls from the trees, 
 and not part of the soil itself, (d) 
 
 With respect to the manner in which the dis- 
 
 (a) Rex r. Inhabitants of Stoke, (c) Anon. 2 Dal. 95. 
 
 2T.R.451. ( d) Pemble v. Sterne, 1 Lev. 
 
 (A) Wheeler t>. Toulson, Hard. 212,3. S.C. iSid. 416. 
 330.
 
 AN EJECTMENT WILL LIE. *& 
 
 puted premises 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 description shall be suffi- 
 ciently 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 cer- 
 tainly was required than is now necessary; and it 
 appears, that when the action was first invented, as 
 much certainly was requisite as in a pr&cipe quod 
 reddat. () The courts, indeed, soon relaxed this 
 severity, and allowed many descriptions to be suffi- 
 cient in an ejectment, which would have been held 
 too uncertain in a prtecipe ; as, for instance, an 
 ejectment for a hop-yard was held good; so also 
 for an orchard, though in a pracipe it should be 
 demanded as a garden ; () yet notwithstanding this 
 alteration, it was considered an established principle, 
 until within the last sixty 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, (c) 
 Amongst other salutary regulations, however, which 
 the wisdom of modern times has introduced into this 
 
 (a) Macdunoch v. Stafford, 2 Roll, ston, Cro. Jac,654. S. C. Palm. 337. 
 
 Rep. 166. (c) Bindover v. Sindercome, 2 
 
 6) Wright v. Wheatley, Noy.37. Raym. 1470, and the cases there 
 
 S. C.Cro. Eliz. 854, Royston v. Eccle- cited.
 
 24 OF WHAT THINGS 
 
 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 reco- 
 vered, according to the directions of the claimant, 
 who therein acts at his own peril, (a) 
 
 Few cases are to be found in the modern books, 
 wherein points respecting the certainty of descrip- 
 tion have arisen ; and the authority of the old cases 
 is very doubtful. The degree of certainty formerly 
 required was much greater than is now necessary, 
 and it is not improbable that many of the old de- 
 cisions would be over-ruled, should they again come 
 under the consideration of the courts. (6) 
 
 Lands will be sufficiently described by the pro- 
 vincial terms of the counties in which they lie. Thus 
 an ejectment 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, (c) 
 
 The same principle applies to ejectments in Ire- 
 land; and terms used in that country will be suffi- 
 ciently certain, when writs of error are brought 
 therefrom in this kingdom. Thus an ejectment will 
 lie in Ireland, for a township, for a kneave (d) or 
 
 (a) Cottingham v. King, Burr .623. 1063. Bennington v. Goodtitle, ib . 
 
 630. Connor v. West, Burr. 2672. 1084. 
 
 (&) St. John v. Comyn, Yelv. 117. (d) Cottingham u.King, Burr. 623, 
 
 Cottingham v. King, Burr. 623. 30. 
 
 (c) Barnes v. Peterson, Stran.
 
 AN EJECTMENT WILL LIE. 
 
 quarter of land, or for so many acres of bog or of 
 mountain, (a) the word mountain being in that king- 
 dom rather a description of the quality, than the 
 situation of land. (6) 
 
 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, (c) 
 
 It is no objection to a description that the premises 
 are twice demanded in the same demise, (d) 
 
 An ejectment will not lie for a tenement, because 
 many incorporeal hereditaments are included in that 
 appellation, (e) and therefore the description is not 
 certain enough ; nor will an ejectment lie for a mes- 
 suage, or tenement, for the signification of the word 
 tenement being more extensive than that of the word 
 messuage, it is not sufficiently certain what is in- 
 tended to be demanded in the ejectment. (/) It is 
 also holden that an ejectment will not lie for a mes- 
 suage and tenement, (g) 
 
 (a) Barnes v. Peterson, Stran. 834. Coplestonv. Piper, Ld. Raym. 
 
 1063. Bennington v. Goodtitle, ib. 191. 
 
 1084. (/) Ashworthv. Stanley, Styl. 364. 
 
 (6) Kildare v. Fisher, Stran. 71. Wood v. Payne, Cro. Eliz. 186. 
 
 vide cont. Macdonnogh v. Stafford, Rochester v. Rickhouse, Pop. 203. 
 
 Palm. 100. S. C. 2 Roll. Rep. 189. (g) Doe d. Bradshaw v. Plowman. 
 
 St. John v. Comyn, Yelv. 117. 1 East. 441, and the cases there 
 
 (c) Hancock v. Price, Hard. 57. cited. In the case of Goodright </ 
 
 (f) Warren w. Wakely, 2 Roll. Welch v. Flood, (3 Wil*. 23,) in 
 
 Rep. 482. which a motion was made to arrest 
 
 (f) Goodtitle v. Walton, Stran. the judgment, because the plaintiff
 
 26 OF WHAT THINGS 
 
 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 reduces it to the certainty of a dwelling- 
 house, (a) 
 
 So also an ejectment for a messuage or burgage 
 is good ; because both signify the same thing in a 
 borough, (b) 
 
 had declared of a messuage or tene- 
 ment, the Court endeavoured to get 
 over the objection, and took time 
 for consideration, but ultimately 
 thoughtthemselves bound by the ad- 
 judged cases, and reluctantly ar- 
 rested the judgment. Afterwards, 
 in Doe d. Stewart v. Denton, (IT. 
 R. 11,) on a similar application, 
 where the plaintiff had declared for 
 a messuage and tenement, the Court 
 refused to grant the rule, Duller, J. 
 saying, he remembered a case where 
 a messuage or tenement had been 
 held sufficiently certain. But this 
 case was afterwards over-ruled, in 
 Doe d. Bradshaw v. Plowman, (1 
 East. 441,) "for that it passed 
 by surprise, and was not law, being 
 contrary to adjudged cases." -The 
 point is therefore now at rest, al- 
 though from the cases of Goodtitle 
 d. Wright v. Otway, (3 East. 357,) 
 and Doe d. Laurie v. Dyball, (1 M. 
 & P. 330. and 8 B. & C. 70.) the 
 defendant is precluded from deriv- 
 ing any advantage from such error 
 in description. In the former case, 
 the plaintiff had declared for a mes- 
 suage and tenement, and the ver- 
 dict was entered generally ; but the 
 
 Court permitted the lessor (pending 
 a rule nisi to arrest the judgment 
 for the uncertainty) to enter the 
 verdict according to the Judges' 
 notes for the messuage only, and that 
 without releasing the damages. In the 
 latter case, the declaration was for 
 twenty messuages, twenty tenements 
 &c. ; and the judgment being entered 
 generally for the plaintiff, the de- 
 fendant brought a writ of error in 
 the King's Bench, pending which 
 writ the Court of Common Pleas al- 
 lowed the record to bs amended, by 
 striking out the words " twenty te- 
 nements ;" and the Court of King's 
 Bench in the following term, (the 
 record I presume not having been 
 amended) gave judgment for the 
 defendant in error on this ground, 
 that if the same count contains two 
 demands or complaints, for one of 
 which only an action lies, all the 
 damages shall be referred to the 
 good cause of action, although secus 
 if in separate counts. 
 
 (a) Burbury v. Yeomans, 1 Sid. 
 295. 
 
 (6) Danvers v. Wellington, Hard. 
 173. Rochester v. Ilickhouse, Pop. 
 203.
 
 AN EJECTMENT WILL LIE. 27 
 
 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. (a) 
 
 An ejectment will lie for a stable and cottage, (6) 
 and also for a house ; though in a pr&cipe it ought 
 to be demanded by the name of a messuage, (c] 
 
 Ejectment of a place called a passage-room is cer- 
 tain enough, (d) So also of a room, and of a chamber 
 in the second story, (e) In like manner it has been 
 held that an ejectment for u part of a house in A" is 
 sufficiently certain, (f) So also of " a certain place 
 called the vestry." (g) 
 
 It has formerly been holden that an 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 exe- 
 cution ; but this reasoning does not correspond with 
 the maxims of the present day. (h) 
 
 An ejectment will not lie'for a close, (z) nor for the 
 
 (a) Fitzgerald v. Marshall, 1 () Anon. 3 Leon. 210. 
 
 Mod. 90. (/) Sullivan v. Seagrave, Stran. 
 
 (6) Hill v. Giles, Cro. Eliz. 818. 695. Rawson v. Maynard, Cro. 
 
 Lady Dacres* case, 1 Lev. 58. Eliz. 286. 
 
 Ilamoiid v. Ireland, Sty. 215. (g) Hutchinson v. Puller, 3 Lev. 
 
 (c) Royston v. Eccleston, Cro. 95. 
 
 Jac. 654. S. C. Palm. 337. (A) Ford v. Lerke, Noy. 109. 
 
 (rf) Bindovcr v. Sindercombe, Ld. (i) Savel's case, 11 Co. 55 llam- 
 
 Rayra. 1170. inond v. Savel, 1 Rol. Rep. 55.
 
 28 OF WHAT THINGS 
 
 third, or other part of a close, nor for a piece of land, 
 unless the particular contents or number of acres be 
 specified, (a) From the old authorities, it seems also 
 formerly to have been holden, (though the point is 
 certainly somewhat obscure,) 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 cer- 
 tain, (b) 
 
 In ejectment for land, the particular species should 
 be mentioned in the description, whether pasture, 
 meadow, &c. because land, in its legal acceptation, 
 signifies only arable laud, (c) 
 
 An ejectment for ten acres of underwood has been 
 held good ; (d} because underwood is so well under- 
 stood in law, that the sheriff has certainty enough to 
 direct him in the execution. 
 
 " Fifty acres of gorse and furze" () has been held 
 sufficiently certain in an ejectment, without specifying 
 the particular quantity of each : so also " fifty acres 
 of furze and heath," and " fifty acres of moor and 
 marsh." (/) 
 
 Knight v. Syms, Salk. 254. Joans v. Cleabourne, Cro. Eliz. 339. 
 
 v. Hoel, Cro. Eliz. 235. Wykes v. Sparrow, Cro. Jac. 435. 
 
 (a) Palmer's case, Owen 18, Mar- (c) Massey v. Rice, Cowp. 346. 
 
 tyn v. Nichols, Cro. Car. 573. Jor- 349. Savel's case, 11 Co. 55. 
 
 dan v. Cleabourne, Cro. Eliz. 339. (d) Warren v. Wakeley, 2 Roll. 
 
 I'emble v. Sterne, I Lev. 213. Rep. 482. 
 
 (6) Lady Dacres' case, 1 Lev. (e) Fitzgerald v. Marshall, 1 Mod. 
 
 58. Savel's case, 11 Co. 55. Knight 90. 
 
 t-. Syms, 1 Salk. 254. Roystou v. (/) Connor v. West, Burr. 2672. 
 J'.ccleston, Cro. Jac. 654. Jordan
 
 AN EJECTMENT WILL LIE. 29 
 
 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, (a) 
 
 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 therein, and that under such general 
 description the jury may find the verdict for the plain- 
 tiff, for a messuage, or for so many acres " parcel of 
 the said manor," and for the defendant, for the resi- 
 due of the manor; but it is said in the old cases, not 
 to be safe to bring an ejectment for a manor without 
 describing the quantity and species of the land. (6) 
 
 When an ejectment is brought for tithes, (c) the 
 particular species of tithe demanded should be speci- 
 fied in the declaration, as of hay, wheat, &c. or the 
 description will be bad for uncertainty ; (d) but it is 
 not also necessary to mention 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, 8cc." (e) 
 
 (a) Odingsall v. Jackson, 1 appertaining," for that the plaintiff 
 Brown, 149. could not have a writ of haberefa- 
 
 (b) Warden's case, Het. 146. Cole cias po&sessionem of the tithes only ; 
 t?. Aylott, Litt. Rep. 299. 301. Hems but the objection was over-ruled. 
 v. Stroud, Latch. 61. Baldwin v. Wine, Cro. Car. 301. 
 
 (c) It was once contended, that (d) Harpur's case, 11 Co. 25. (6) 
 in an ejectment for tithes, the eject- Worrall v. Harper, 1 Roll. Rep. 65. 
 tion should be laid, " of the rectory, 68. Dyer, 84, 5. 
 
 or chapel, and of the tithes thereunto (e) Anon. Dyer, 116, (6.)
 
 30 OF WHAT THINOS AN EJECTMENT WILL LIE. 
 
 In an old case, where the plaintiff declared on a 
 lease for tithes in R. belonging to the rectory of D., 
 and that the defendant entered upon him, and took 
 such tithes severed from the nine parts in R., without 
 saying that the tithes so taken belonged to the rectory 
 of D., 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 rectory of 
 
 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 judg- 
 ment for the plaintiff was affirmed. (#) 
 
 If a person eject another from land, and build 
 thereon, it is sufficient if the owner bring his eject- 
 ment for the land, without mentioning the building, 
 except where the building is a messuage, and then 
 perhaps it ought to be particularly named, (c) 
 
 (a) Baldwin v. Wine, W. Jones, Mod. 143. S. C. 1 Show. 364. 
 
 321, tamen qtuere, et vide Good- S. C. Salk. 255. S. C. Carth. 277. 
 
 right d. Smallwood v. Strother, Blk. S. C . Comb. 201. 
 
 706. (c) Goodtitle d. Chester v. Alker, 
 
 (6) Whittingham v. Andrews, 4 Burr. 133. 144.
 
 CHAPTER III. 
 
 Of the Title necessary to support the Action of 
 Riectment. 
 
 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 per- 
 plexing 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 
 purposes, 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 enumeration only of the different titles 
 sufficient to support an ejectment, would be of little 
 service either to the student or practitioner. It is 
 intended, therefore, to keep a middle course; first dis- 
 cussing 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
 
 32 OF THE TITLE, &C. IN THE 
 
 leaving the more minute distinctions to those publi- 
 cations, which treat expressly of the laws of real 
 property. 
 
 As the party in the possession of property is pre- 
 sumed to be the owner, until the contrary is proved, 
 it is necessary for a claimant in ejectment to show in 
 himself 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 defend- 
 ant's claim. The possession of the latter gives him 
 a right against every man who cannot establish a title; 
 and if he can answer the case on the part of the claim- 
 ant, by showing the real title to the land to be in 
 another, it will be sufficient for his defence, except in 
 those cases in which the relationship of landlord and 
 tenant subsists between the parties, and the defendant 
 is estopped from disputing his landlord's title, (a) 
 although he does not pretend that he holds the lands 
 with the consent, or under the authority of the real 
 owner, (b) 
 
 In order also to enable a claimant to support an 
 action of ejectment, he must be clothed with the legal 
 title to the lands, (c) No equitable title will avail. 
 And this principle is so fixed and immutable, that a 
 trustee may maintain ejectment against his own cestui 
 que trust, (d} and an unsatisfied term outstanding in 
 
 (a) Vide post, chap. 10. T. R. 43. 47. Doe d. Da Costa v. 
 
 (6) Roe d. Haldane v. Harvey, 4 Wharton, 8 T, R. 2. Doerf. Blake 
 
 Burr. 2484. Doe d. Crisp v. Barber, v. Luxton, 6 T. R. 289. 
 
 2 T. R. 749. (rf) Roe rf. Reade v. Read, 8 J . 
 
 (f) Goodtitle d. Jones v. Jones, 7 R. 1 18. 123.
 
 ACTION OF EJECTMENT. 33 
 
 trustees will bar the recovery of the heir at law, even 
 though he claim only subject to the charge, (a) In 
 the time of Lord Mansfield, indeed, the Court of 
 King's Bench adopted a different principle, and 
 exercised a species of equitable jurisdiction in this 
 action. Thus a mortgagee was permitted to main- 
 tain ejectment against a tenant, claiming under 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; (b) 
 the legal estate of a trustee was not allowed to be set 
 up against the cestui que trust ; (c) an agreement 
 for a lease was held tantamount to a lease; (d) 
 and a reversioner was allowed to recover his rever- 
 sionary interest, subject to a lease and immediate 
 right of possession in another, (e) But these cases 
 have long been overruled, and the clearness and 
 certainty of the principle since adopted, amply com- 
 pensate for the partial inconvenience it may at times 
 occasion. 
 
 The claimant must also have a right to the posses- 
 sion; that is to say, he must have a right of entry upon 
 the lands at the time of the demise in the declaration. 
 And whatever takes away this right of entry or posses- 
 
 (a) Doe d. Hodson v. Staple, 2jT. 684. Doe d. Gibbon v. Pott, Doug. 
 
 R. 684. 710. 721. et vide Gates d. Wigfall 
 
 (6) Keechd. Warner. Hall, Doug. v. Brydon, Burr. 1895. 1901. 
 
 21. Moss v. Gallimore, Doug. 279. (d) Weakley d. Yea v. Bucknell, 
 
 B. N. P. 96. Cowp. 473. 
 
 (r) Lade v. Holford, B. N. P. 110. (e) Per Buller, J. in Doe d. Bris- 
 
 S. C. Burr. 1416. S. C. Blk. 428. towv.Pegge, 1 T. R. 759, (in notis.) 
 Doe d. Hodson v. Staple, 2 T. R. 
 
 U
 
 34 OF THE TITLE &C. IN THE 
 
 sion, and turns the same into aright of action, will also 
 deprive the claimant 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 pos- 
 session be divested before trial; for the action of 
 ejectment is intended to give the party compensation 
 for the trespass, as well as to enable him to recover 
 possession of the land ; and he has a right to proceed 
 for such trespass, although his right to the possession 
 should cease, (a) 
 
 The origin of the principle that the lessor must 
 have a right of entry, has already been considered, (&) 
 and we must now notice the several ways by which this 
 right of entry or possession may be destroyed. The 
 consideration of the effects of fines levied with pro- 
 clamations, and of the right of entry, as between land- 
 lord and tenant, for condition broken, will be reserved 
 for the two following chapters : those acts only are 
 here to be considered, which take away the right of 
 entry from the claimant, but leave in him, notwith- 
 standing, 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 Discon- 
 tinuance ; secondly, by Descent ; and, thirdly, by the 
 Statute of Limitations. 
 
 1. BY DISCONTINUANCE. 
 
 (a) Doe d. Morgan v. Bluck. 3 (6) Vide ante, 11. 
 Camp. 447.
 
 ACTION OF EJECTMENT. 35 
 
 A discontinuance of an estate signifies such an 
 alienation made or suffered, by any person seized of 
 an estate tail, or in autre droit, in things which lie 
 in livery, as takes away the entry of the person en- 
 titled 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 entitled to do : in which case the estate is 
 good, so far as his power extends who made it, but 
 no farther. As if a tenant in-tail makes a feoffinent 
 in fee-simple, or for the life of the feoffee, or in-tail ; 
 all which are beyond 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 re- 
 tains the possession after the death of the feoffor, it 
 is an injury 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 discontinued. For, in this case, on the 
 death of the alienors, 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 possession being thereby gained, the law 
 will not suffer that right to be overthrown by the 
 mere act or entry of the claimant." (a) 
 
 By the common law, an estate-tail may be discon- 
 
 (a) 3 Blk. Com. 171, 5. 
 
 D2
 
 36 OF THE TITLE, &C, IN THE 
 
 tinued five ways : first, by confirmation with warranty ; 
 secondly, by feoffment; thirdly, by fine; fourthly, 
 by common recovery ; fifthly, by release. 
 
 An estate-tail cannot, however, be discontinued, 
 except where he who makes the discontinuance was 
 once seized by force of the in-tail; that is, seized 
 of the freehold and inheritance of the estate in-tail, 
 and not of a remainder or reversion expectant upon 
 a freehold, (a) Hence, if there be tenant for life, 
 the remainder in-tail, &c. and tenant for life, and he 
 in the remainder in-tail levy a fine, this is not any 
 discontinuance or divesting of any estate in remain- 
 der, but each of them passes that which they have 
 power and authority to pass, (b) 
 
 So also, to make a discontinuance by levying a fine, 
 it is necessary that the estate should pass to the 
 alienee by virtue of the fine ; if, therefore, the tenant 
 in-tail first alienate his estate by modes of convey- 
 ance, which transfer only the possession and not the 
 right, as by bargain and sale, lease and release, &c. 
 and the grantee is seized by virtue of such convey- 
 ance, a fine, levied afterwards by the tenant in-tail, 
 will not operate as a discontinuance of the estate-tail ; 
 but the right of entry will remain to the remainder- 
 man, or reversioner, for the first five years after his 
 title accrues, (c) 
 
 But, where tenant in tail-male, with remainder 
 
 (a) 1 Inst. 347, (6) et vide Litt. s. (fr) 1 Inst. 302, (6). 
 640. 658. (c) Seymour's case, 10 Co. 96, (a).
 
 ACTION OF EJECTMENT. 37 
 
 over in-fee, in consideration of a marriage, con- 
 veyed his estate-tail by lease and release to trustees, 
 and their heirs to several uses, and in the release 
 covenanted to levy a fine to the same uses, and did 
 after his marriage levy a fine in pursuance of his 
 covenant, it was held that this fine operated as a dis- 
 continuance of the estate ; because the lease, release, 
 and fine, were all but one assurance, and operated as 
 such ; for that the deeds could only be considered as 
 a covenant to levy a fine, and were incomplete till 
 the fine was levied, so that the estate-tail passed by 
 the fine, (a) 
 
 This case was distinguished from Seymour's, be- 
 cause, in that case, the fine was not levied until a 
 year after the bargain and sale was enrolled, and it 
 was expressly found by the verdict, that the bar- 
 gainee entered, and was seized by force of the bar- 
 gain and sale only ; so that the bargain and sale was 
 totally unconnected with the fine : nor did it appear 
 that any fine was intended to be levied at the time 
 when the bargain and sale was executed. 
 
 Where the title of the lessor was under a mar- 
 riage-settlement, by which the premises were set- 
 tled on the husband for life, remainder to the chil- 
 dren of the marriage as tenants in common in-tail, 
 with cross remainders in default of issue of any 
 child to the survivors in-tail, witli remainder to the 
 survivor of husband and wife, in-fee : and two 
 
 (a) Doe d. Odiarne v. Whitchead, Burr. 70 A.
 
 38 OP THE TITLE, &C. IN THE 
 
 daughters were the issue of the marriage ; the first 
 of whom married the lessor of the plaintiff, and the 
 second the defendant, and died without issue ; but 
 previous to her death, she and her husband levied a 
 fine with proclamations of her moiety, to recover 
 which the action was brought : Mr. J. Gould, who 
 tried the cause, nonsuited the plaintiff, being of opinion 
 that the levying of the fine had discontinued the 
 estate-tail, taken away the claimant's right of entry, 
 and driven him to his writ offormedon. (a) 
 
 By the common law the alienation of a husband, 
 who was seized in right of his wife, worked a discon- 
 tinuance of her estate ; but now, by the 32 Hen. VIII. 
 c. *28. s. 6, it is provided, that no act of the husband 
 only, shall work a discontinuance of, or prejudice the 
 inheritance or freehold of the wife; but that, after his 
 death, she, or her heirs, may enter 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 hus- 
 band only; but a fine levied by the husband and 
 wife is not. (fr) 
 
 When also the husband and wife are jointly seized 
 to them and their heirs, or the heirs of their two 
 bodies, of an estate made during the coverture, and 
 
 (a) Run. Eject. 45. case, 2 Co. 77, (6). 
 
 (6) 1 Inst. 326, (a). Cromwell's
 
 ACTION OF EJECTMENT. 39 
 
 the husband makes a feoffment in-fee, and dies, the 
 wife may enter under the provisions of this statute, 
 although it was the inheritance of them both, (a) 
 
 By the statute of 11 Hen. VII. c. 20 , it is also pro- 
 vided, that "if a woman has any estate-tail jointly 
 with her husband, or only to herself, or to her use, 
 in any lands or hereditaments of the inheritance or 
 purchase of her husband, or given to the husband 
 and wife in-tail, by any of the ancestors of the hus- 
 band, or by any other person seized to the use of the 
 husband, or his ancestors, and shall hereafter, being 
 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 
 conveyances by the husband, or his ancestor, for the 
 advancement of the wife, (b) Hence, if land be 
 settled by the ancestor of the wife, in consideration 
 of the marriage, it is not within this act; for it 
 shall be intended that the advancement of the wife 
 was the principal cause of the gift, (c) 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 
 
 (a) 1 Inst. 326, (a). Greenley's S.C. 1 Leon. 261. 
 case, 8 Co. 142, (6). (c) Kynaston v. Lloyd, Cro. Jac. 
 
 (6) Foster v. Pitfall, Cro. Eliz. 2. 624.
 
 40 OF THE TITLE, &C. IN THE 
 
 act. () So if the conveyance be by the husband, or 
 his ancestor, in consideration of marriage, although 
 it be joined with a money consideration, yet it is 
 within the statute. (6) But no estate is within the 
 meaning of this statute, unless it be for the jointure 
 of the wife. Hence, although an estate devised by 
 the husband to the wife in-tail, with remainder over 
 to a stranger in-fee, be within the words, yet it is 
 not within the meaning of the statute ; for it shall 
 not be intended to be for a jointure, where no in- 
 heritance is reserved to the husband or his heirs > 
 and the meaning of the statute is, that the wife shall 
 not prevent the lands descending to the heirs of the 
 husband, (c) 
 
 If the issue in special-tail, with reversion in-fee 
 expectant, levy a fine, and afterwards his mother, 
 being tenant in-tail within this act, make a lease for 
 three lives (not warranted by the statute 32 Hen. VIII. 
 c. 28.) living the issue ; the conusee may enter, (d) 
 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 ; (e) nor the 
 issue. (/) 
 
 Formerly an alienation made by a sole corporation, 
 
 (a) Piggot v. Palmer, Moore, 250. (d) Brown's case, 3 Co. 50, (b). 
 
 (6) Kirkman v. Thomson, Cro. {e} Ward v. Walthew, Cro. Jac. 
 
 Jac. 474. 178. 
 
 (c) Foster v. Pitfall, Cro. Eliz. 2. (/) Lincoln Coll. case, 3 Co. 61, 
 
 S. C. 1 Leon. 261. (a);
 
 ACTION OF EJECTMENT. 41 
 
 as a bishop, or a dean, without the consent of the 
 chapter, was a discontinuance ; but since the dis- 
 abling statutes, (a) which declare such alienations 
 absolutely void, ab initio, no discontinuance can by 
 such means be effected, (b) 
 
 2. BY DESCENT, (c) 
 
 " Descents, which take away entries, are when any 
 one, seized by any means whatsoever of the inherit- 
 ance of a corporeal hereditament, dies, whereby the 
 same descends 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 pro- 
 tects his title, and will not suffer his possession to be 
 divested, till the claimant hath proved a better right. 
 Secondly, because the heir may not suddenly know 
 the true state of his title; and therefore the law, 
 
 (a) 1 Eliz. c. 19. 13 Eliz. c. 10. a general account of the doctrine 
 
 (6) F. N. B. 194. of descent cast is given here, in 
 
 (c) It is scarcely possible to order to render this part of the 
 
 suggest a case, in which the doc- subject complete. Vide Taylor d. 
 
 trine of descent cast can be now so Atkins v. Horde (Burr. 60.) where 
 
 applied, as to prevent a claimant the history and principles of the 
 
 from maintaining ejectment, as, doctrine of descent cast are most 
 
 from the principles of disseisin at ably investigated by Lord Mans- 
 
 election, he may always lay his field. Vide also William d. Hughes 
 
 demise in the time of the ancestor, v. Thomas, (12 East. 141.) 
 and elect not to be disseised. But
 
 42 OF THE TITLE, &C. IN THE 
 
 which is ever indulgent to heirs, takes away the entry 
 of such claimant as neglected to enter on the an- 
 cestor, who was well able to defend his title ; and 
 leaves the claimant only the remedy of an action 
 against the heir. Thirdly, this was admirably 
 adapted 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 
 seized. And, lastly, it is agreeable to the dictates 
 of reason, and general principles of law." (a) 
 
 This doctrine of descent cast does not apply, if the 
 claimant be under any legal disabilities during the 
 life of the ancestor, either 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. () Nor does it affect copy- 
 hold, or customary estates, where the freehold is in 
 the lord ; (c) nor cases where the party has not any 
 remedy but by entry, as a devisee, (d) 
 
 The right of entry may be tolled, or taken away, 
 by a descent cast, in cases of abatement, intrusion, 
 and disseisin. 
 
 By the common law, if an abator, or intruder, or 
 disseisor, died in peaceable possession, the descent to 
 the heir gave to him a right of possession, and took 
 
 (a) 3 Blk. Com. 176. East. 299. 
 
 (6) Litt. 1. 3 c. 6. (</) Co. Litt. 240, (6). 
 
 (c) Doe rf. Cook v. Danvers, 7
 
 ACTION OF EJECTMENT. 43 
 
 away from the true owner his right of entry, although 
 such death happened immediately after the wrongful 
 acquisition of the lands ; but by the statute of 32 
 Hen. VIII. c. 33, it is provided, that "the dying 
 seized of any disseisor of and in any lands, &c. hav- 
 ing 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, 
 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 constructed strictly, and 
 does not extend to the feoffee, or donee of the disseisor, 
 mediate or immediate, and therefore the descent in 
 such cases remains as at the common law. (a) It is 
 also said, that abaters and intruders are not within 
 the statute : but the successors of bodies politic and 
 corporate in cases of disseisin 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 dis- 
 seised, and consequently without naming his suc- 
 cessor extendeth to him, for he is the person that, at 
 the time of such descent, had title of entry. () 
 
 If there be tenant for life, the reversion in-fee, and 
 tenant for life be disseised, and die, and the disseisor 
 afterwards 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 
 
 (a) Co. Litt. 256. Tailbois, Plow. 38. 47. 
 
 (h) Co. Litt. 238. Wimbish v.
 
 44 OF THE TITLE, &C. IN THE 
 
 reversioner. But if the disseisor had died seized, and 
 the tenant for life had afterwards died, there the 
 descent would have taken away the entry of the re- 
 versioner, 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 disseissee within the statute, to punish the 
 possessifcn of the heir as an actual ouster, since the 
 reversioner was never actually ousted either by the 
 original disseisor, or his heir, (a) 
 
 It is immaterial whether the descent be in the col- 
 lateral line or lineal ; (b} but a dying seized of an 
 estate for life, or of a reversion, or remainder, will 
 riot take away an entry ; (c) because, for this pur- 
 pose, it is essentially necessary that the disseisor 
 should die seized both of the fee or fee-tail and free- 
 hold. If, therefore, the disseisor make a lease for 
 his own life, or the life of another, and die seized of 
 the reversion, this descent will not take away the 
 entry, because although he had the fee he had not the 
 freehold at the time of his death ; but if he make 
 a lease for years and die seized 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, (d) 
 
 (a) Co. Litt. 238. Wimbish t;. (c) Litt. s. 387, 388. 
 Tailbois, Plow. 38. 47. (d) Co. Litt. 239, (6). 
 
 (ft) Co. Litt. 339, (t).
 
 ACTION OF EJECTMENT. 45 
 
 It is also necessary that the descent of the fee and 
 freehold be immediate to bar the entry. Hence, if 
 feme disseisoress take husband, and have issue, and 
 afterwards the husband die, such descent will not take 
 away the entry of the disseissee; 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, (a) 
 
 To constitute a descent, therefore, which shall 
 take away an entry, it appears, that there must be 
 a dying seized in demesne of a corporeal inheritance, 
 either in fee or fee-tail, that the rightful owner be 
 under no legal disability in the time of the ancestor, 
 and also in those cases to which the statute of 32 Hen. 
 VIII. c. 33, extends, that the disseisor have five years 
 quiet possession of the lands. 
 
 3. BY THE STATUTE OF LIMITATIONS. 
 
 By the statute of 21 Jac. I. c. 16. s. 1, it is enacted, 
 that tf 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 person 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 
 
 (a) Litt. s. 394.
 
 46 OF THE TITLE. &C. IN THE 
 
 person, 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 prison, 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 of nullum tempus oc- 
 currit regi, the King is not bound by this statute, (a) 
 nor are ecclesiastical persons within it, because it 
 would be an indirect means of evading the statutes 
 made to prohibit their alienations ; 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, 
 adverse 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 re- 
 medy by ejectment. 
 
 It is not easy to define what will constitute an ad- 
 verse holding of this nature, but it may be safely 
 laid down that an adverse possession will be nega- 
 tived, when the parties claim under the same title, 
 
 (o) By stat. 9. Geo. III. c. 16, the years next before suit or claim ; 
 
 King is disabled from claiming and consequently an adverse pos- 
 
 title, (except to liberties and fran- session of lands for sixty years will 
 
 chises,) unless the same shall ac- now be a good title even against 
 
 crtie within the space of sixty the Crown.
 
 ACTION OP EJECTMENT. 47 
 
 when the possession of one party is consistent with 
 the title of the other, when the party claiming title 
 has never in contemplation of law been out of pos- 
 session, and when the possessor has acknowledged a 
 title in the claimant. 
 
 First, where the parties claim under the same title. 
 
 As if a man seized of certain land in-fee have issue 
 two sons, and die seized, and the younger son enter 
 by abatement into the land, the statute will not 
 operate against the elder son ; for when the younger 
 son so abates into the land after the death of his 
 father, before an entry made by the elder son, the 
 law intends that he entered claiming as heir to his 
 father, by which title the elder son also claims, (a) 
 So also if the defendant should make title under the 
 sister of the lessor of the plaintiff, and prove that she 
 had enjoyed the estate above twenty years, and that 
 he had entered as heir to her, the court would not 
 regard it, because her possession would be construed 
 to be by courtesy, and not to make a disherison, but 
 by silence to preserve the possession of the brother, 
 and therefore not within the intent of the statute ; 
 though, if the brother be once in actual possession, 
 and ousted by his sister, it would it seems be otherwise, 
 for then her entry could not possibly be construed 
 to be to preserve his possession. (6) 
 
 Secondly, where the possession of one party is 
 consistent with the title of the other. 
 
 (a) Co. Litt. s. 396. (6). Sharrington v. Strotton, Plow. 
 
 (6) B. N. P. 102. Co. Litt 242, 298, 306.
 
 48 OF THE TITLE, &C. IN THE 
 
 Thus, where by a marriage-settlement a certain 
 copyhold estate of the wife was limited to the use of 
 the survivor in-fee, but no surrender was made to the 
 use of the settlement, and, after the death of the 
 wife, the husband was admitted to the lands pursuant 
 to the equitable title acquired by the settlement, it 
 was held that if he had had no other title than the 
 admission, a possession by him for twenty 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 pos- 
 session of the copyhold by the husband was referred 
 to this title, and not to the admission under the settle- 
 ment ; 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, (a) 
 
 And although one third part of the premises had 
 been settled, many years before the marriage, upon 
 a third person 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 payment to him 
 must be taken to be with the consent of the person 
 
 (a) Doe d. Milner v. Brightwen, 10 East. 588.
 
 ACTION OF EJECTMENT. 49 
 
 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 party devised a certain estate to 
 his nephew and two neices, as tenants in common, 
 and one of them died in the testator's life-time, leav- 
 ing an infant daughter; and after the testator's death, 
 the nephew and surviving neice covenanted to convey 
 one-third to a trustee, upon trust to convey the same 
 to the infant if she attained twenty-one, or otherwise 
 to themselves, but no conveyance was executed 
 pursuant to the deed, but a third of the rents were 
 received by the trustee for the use of the infant during 
 her life-time. It was held that there was no adverse 
 possession until the death of the infant, and that the 
 devisee of the nephew might maintain ejectment for 
 his share of the undivided third, within twenty years 
 after the infant's death, although more than twenty 
 years after the death of the nephew, (a) 
 
 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 unex- 
 pired, and the heir at law received the rent from the 
 lessee from the time of the death of the copyholder 
 
 (a) Doe. d. Colclotigh v. Halse, 3. B. &. C.757. 
 
 E
 
 50 OF THE TITLE, &C. IN THE 
 
 until the expiration of the lease, and for ten years 
 afterwards, when the devisee brought an action of 
 ejectment; it was holden that the lessee 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 for- 
 feiture of the lease by non-payment 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. (a) 
 
 But where copyhold lands were granted to A. for 
 the lives of herself and B., and in reversion to C. 9 
 for other lives ; and A. died, having devised to B., 
 who entered and kept possession for more than 
 twenty years ; it was held, that C. was barred by the 
 statute after B.'s death from maintaining ejectment, 
 for that C.'s right of possession accrued on the death 
 of A., inasmuch as there cannot be a general occu- 
 pant of copyhold land. (&) 
 
 So also where the rents, issues, and profits of a 
 trust estate were received by a cestui que trust for 
 more than twenty years after the creation of the 
 trust, without any interference 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 
 
 (a) Doe d. Cook v.\ Danvers, 7 (b) Doe d. Foster . Scott, 4 B. 
 East 299. & C. 706.
 
 ACTION OF EJECTMENT. 51 
 
 after the twenty years, (a) And indeed, as the cestui 
 que trust is a tenant at will (6) 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 recog- 
 nizing the trustee's title, the statute will operate from 
 the time of such entry, (c) 
 
 In like manner the payment of interest upon a 
 mortgage will prevent the statute from running against 
 the mortgagee, 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. (d) 
 
 It seems as yet a very unsettled point, whether an 
 encroachment upon the waste adjoining to the de- 
 mised premises by a lessee, and uninterrupted pos- 
 session thereof by him for twenty years, shall give to 
 the lessee a possessory right thereto, or whether he 
 shall be deemed to have enclosed 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 Thompson, B., have held that the 
 encroachment belongs to the lessee, whilst on the 
 
 (a) Keane d. Lord Byron . Dear- Purchasers, 2d Edit. 241. 
 dou, 8 East. 248. (d) Hatcher v. Fineux, Lord 
 
 (6) Gree v. Rolle, Lord Raym. lUym. 740. Hall v. Doe d. Sur- 
 716. tees, 5 B. & A. 63T. 
 
 (c) Vide Sugden's Vendors and 
 
 E 2
 
 52 OF THE TITLE, &C. IN THE 
 
 other hand, Heath, J., Butler, J., Perryn, B., and 
 Graham, B., have held that the landlord is entitled to 
 it (a) 
 
 But at all events, it seems clear, that such pos- 
 session will be adverse to the rights of the com- 
 moners, and indeed to the lord himself, excepting as 
 landlord at the expiration of the lease, (b) 
 
 It should however, be observed, that although 
 twenty years peaceable possession will undoubtedly 
 be a good title against the lord, qud lord, if the pos- 
 session 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 so 
 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, (c) 
 
 On this principle, where a party enclosed a small 
 piece of waste land, and occupied it for thirty years 
 without paying rent, and at the expiration of that 
 time the owner of the adjoining land demanded six- 
 pence rent, which the party paid on three several 
 occasions, it was held, that this evidence, in the 
 absence of all other circumstances, was conclusive 
 
 (a) Doe d. Colclough u. Mulliner, Taunt. 208. 
 
 1 Esp. 460. Creach v. Wilmot, 2 (V) Creach v. Wilmot, 2 Taunt. 
 
 Taunt. 160, (in notis.) Doe d. 160, (in notis.) 
 
 Challnor v. Davies, 1 Esp. 461. (c) B. N.P.104. 
 Bryan d. Child v. Winwood, 1
 
 ACTION OF EJECTMENT. 53 
 
 to show that the occupation of the defendant began 
 by permission. (a) 
 
 So also, where a cottage standing in the corner of a 
 meadow, (belonging to the lord of a manor,) but sepa- 
 rated from the meadow, and from a highway by a 
 hedge, had been occupied for about twenty years with- 
 out any payment of rent, and then, upon possession 
 being demanded by the lord, was reluctantly given 
 up ; and having been so given up was restored to 
 the party, he being at the same time told, that if 
 allowed to resume possession, it would be only 
 during pleasure, and he kept possession for fifteen 
 years more, and never paid any rent; it was held 
 that the jury were warranted in presuming that the 
 possession had commenced by the permission of the 
 
 Thirdly, an adverse possession will be negatived 
 when the party claiming title has never, in contem- 
 plation of law, been out of possession. 
 
 Thus, when A. devised lands to B. and his heirs, 
 and died, and B. died, and the heir of B. } and a 
 stranger entered and took the profits for twenty years, 
 upon ejectment brought by the devisee of the heir of 
 B. against the stranger, it was held that this percep- 
 tion 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 
 
 (a) Doe d. Jackson v. Wilkinson, (b) Doe d. Thompson v. Clark 
 3 B &C.413. 8 B.&C.717.
 
 54 0* r THE TITLE, &C. IN TUB 
 
 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 a moiety of the profits, that would 
 not make him a tenant in common ; for a man cannot 
 disseise another of an undivided moiety, as he may of 
 such a number of acres, (a) 
 
 From the principle that the possession of one joint 
 tenant, parcener, or tenant in common, is primd facie 
 the possession of his companion also, (6) it follows, 
 that the possession of the one can never be considered 
 as adverse to the title of the other, unless it be at- 
 tended by circumstances demonstrative of an adverse 
 intent ; or, in other words, whenever one joint tenant, 
 tenant in common, or parcener, is in possession, 
 his fellow is in contemplation of law in possession 
 also, and it is necessary to prove an actual ouster to 
 rebut this presumption. 
 
 Some ambiguity, indeed, seems formerly to have 
 prevailed as to the meaning of the word actual ouster, 
 as though it signified some act accompanied by real 
 force ; (c) but it is now clear, that a"n actual ouster 
 may be inferred from circumstances, which circum- 
 stances are matter of evidence to be left to the jury. 
 Thus, thirty-six years sole and uninterrupted posses- 
 sion by one tenant in common, without any account to, 
 demand made, or claim set up by his companion, was 
 
 (a) Reading v. Rawsterne, Ld. v. Keen, 7T.R.386. 
 
 Itaym. 829. (c) Fairclaim t/. Fowler u.Shackle- 
 
 (b) Ford v. Gray, Salk. 285. Sniales ton, Burr. 2G04. 
 v. Dale, Hub. 120. Doe d. Barnet
 
 ACTION OF EJECTMENT. 55 
 
 held to be sufficient ground for the jury to presume 
 an actual ouster of the co-tenant, and they did so 
 presume, (a) 
 
 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 (6). 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, (c) 
 
 Upon the same principle, although the en ry of 
 one is, generally speaking, the entry of both, yet if 
 he enter claiming the whole to himself, it will be an 
 entry adverse to his companion, (c) But where there 
 was no circumstance to induce a supposition of 
 an actual ouster, but a bare perception of the profits 
 by one tenant in common for twenty-six years, the 
 possession was held not to be adverse, (d) And 
 where a tenant in common levied a fine of the whole 
 premises, and afterwards took all the rents and 
 profits for four or five years, but it did not appear 
 that he held adversely at the time of levying the 
 fine, it was held that such fine and receipt were 
 
 (a) Doe d. Fisher v. Prosser, Bird, 11 East. 49. 
 
 Cowp. 217. (c) Vin. Ab. v. 14, 512. 
 
 (6) Doc d. Fisher v. Prosser, (d) Fairclaimrf. Fowler . Shackle- 
 
 Cowp. 217. Doe d. ilellings v. ton, 5 Burr. 260-1.
 
 56 OF THE TITLE, &C. IN THE 
 
 not sufficient evidence of an ouster of his com- 
 panion, (a) 
 
 If, however, in cases of joint tenancy, &c. there 
 be sufficient evidence of an actual ouster, the statute 
 will run as in other cases. 
 
 Upon the principles here established, the posses- 
 sion of one heir in gavelkind is not the possession of 
 the other, if he enter with an adverse intent to oust 
 the other, (h) 
 
 If an estate descend to parceners, one of whom 
 is under a disability, which continues more than 
 twenty years, and the other does not enter within 
 twenty years, the disability of the one does not pre- 
 serve the title of the other after the twenty years 
 have elapsed, (c) 
 
 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 covenanted 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 parish, and the les- 
 see and his assigns (the succeeding rectors) continued 
 
 (a) Peaceable d. Hornblower v. (b} Davenport v Tyrrell, Blk.G75. 
 Read, 1 East. 568, 574, sed vide (c) Roe d. Langdon v. Rowlstou, 
 Story v. Windsor, 2 Atk. 630, 632. 2 Taunt. 441.
 
 ACTION OF EJECTMENT. 57 
 
 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 tythe 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 les- 
 see, or his assigns, should continue his possession, 
 if the lessor, and his heirs,' were permitted to receive 
 the tithe as before, and that consequently there 
 was no adverse holding in the assignee of the 
 lessee, (a) 
 
 To enable a party to take advantage of the exten- 
 sion of time granted by the second section of this 
 statute, it is necessary 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 sub- 
 sequent disability will be sufficient to arrest the ope- 
 ration of the statute. And the principle is the same 
 where a disability, existing at the time of the com- 
 mencement of the title, is afterwards removed, and 
 a subsequent disability ensues ; the statute con- 
 tinuing to run, notwithstanding the second disability. 
 It was once, indeed, endeavoured to distinguish be- 
 tween cases of voluntary and involuntary disability 
 in this respect, and to maintain that an involuntary 
 disability, as insanity, occurring after the statute had 
 begun to run, would suspend its progress, but the 
 argument was over-ruled, upon the principle that 
 a different construction had always been given to all 
 
 (a) Roe d. Pellat v. Ferrars, 1 Bos. and Pull. 542.
 
 58 OF THE TITLE, &C. IN THE 
 
 the statutes of limitations, and that such nice dis- 
 tinctions would be productive of mischief, (a) 
 
 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 the kingdom, is 
 gone; and his privilege, as to non-sane memory, 
 will begin from the time he returns to his senses. (6) 
 
 When the ancestor to whom the right first accrues, 
 dies under a disability which suspends the operation 
 of the statute, his heir must make his entry within ten 
 years next after 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, (c) 
 
 It was once indeed contended that the meaning of 
 this second section of the statute was, to allow eyery 
 person at least twenty years after their title accrued, 
 if there were a continuing disability from the death of 
 the ancestor last seized, 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 carried by 
 
 (a) Doe d. Duroure v. Jones, (6) Sturt v. Mellish, 2 Atk. 610, 
 
 4 T. 11. 300; el vide Stowcll v. Ld. 614. 
 
 Zouch, Tlow. 366. Cotterell v. (r) Doe d. George v. Jesson, 6 
 
 Dutton, 4 Taunt. 826. East. 80.
 
 ACTION OF EJECTMENT. 59 
 
 parents and children dying under age, or continuing 
 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 probably introduced in order to obviate the 
 difficulty which had arisen in the case of Stowell v. 
 Lord Zouch, (a) 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 years from 
 the death of his ancestor, to whom the right first ac- 
 crued during the period of disability, and who died 
 under such disability, notwithstanding the twenty 
 years, from the first accruing of the title to the an- 
 cestor, should have before expired. (6) 
 
 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 consi- 
 dered; remembering always, that a right of entry or 
 possession is supposed to accompany 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 
 
 () Plow. 366. East.oO. 
 
 (/>) Doe d. George v Jesson, 6
 
 60 
 
 OF THE TITLE, &C. IN THE 
 
 trespass, or ejectment ; because those acts complain 
 of a violation of the possession, and therefore cannot 
 be maintained by any person who has not had an ac- 
 tual possession ; (a) but this reasoning does not seem 
 applicable to the modern principles of the remedy by 
 ejectment. () 
 
 2. MORTGAGEE. 
 
 After the mortgage becomes forfeited, the mort- 
 gagee may immediately proceed by ejectment against 
 the mortgagor, without any notice or demand of 
 possession, (c) 
 
 If the party in possession is not the mortgagor him- 
 
 (a) 1 Cru. Dig. 248. et vide, 
 4 Bac. Ab. 183. 
 
 (b) Goodright d. Hare v. Cator, 
 Doug. 477, 86. 
 
 (c) Doe d. Fisher v. Giles, 5 Bing. 
 421, S.C. 2 M. & P. 49. The diffi- 
 culties with which the courts have 
 been beset, in defining the situation 
 of a mortgagor in possession, after a 
 forfeiture of the mortgage, with 
 respect to his mortgagee, are curious. 
 In Moss v. Gallimore, Doug. 279, 
 82, Lord Mansfield says, " He is 
 not properly a tenant at will to the 
 mortgagee ; he is like a tenant at 
 will." In Buck v. Wright, 1 T. R. 
 381, Ashurst, J. says, " a mort- 
 gagor is as much, if not more like 
 a receiver than a tenant at will : 
 in truth, he is not either;" and 
 again, "Mortgagors and mortgagees 
 are characters as well known, and 
 
 their rights, powers, arid interests, 
 as well settled, as any in the law." 
 In Partridge v. Ball, 5 B. &'A. 604, it 
 is said, Per Curiam, " a mortgagor is 
 a tenant within the strictest defi- 
 nition of that word ;" and the learn- 
 ed reporter commences a long note 
 on the case reported, with this sen- 
 tence, "As long as the mortgagor 
 or his heir is in possession of the 
 land, and the legal ownership is in 
 the mortgagee, there must subsist a 
 tenancy between the parties;" whilst 
 in Doe d. Robey v. Maisey, 8 B. & 
 C. 767, Lord Tenterden says, " The 
 mortgagor is not in the situation of 
 tenant at all, or at all events, he is 
 not more than a tenant at sufferance, 
 but in a peculiar character, and lia- 
 ble to be treated as tenant or as tres- 
 passer at the option of the mort- 
 gagee."
 
 ACTION OF EJECTMENT. 61 
 
 self, but a person claiming under a lease granted by 
 the mortgagor prior to the mortgage, the mortgagee 
 will be bound by it; (a] but if the lease be made sub- 
 sequently to the mortgage, without the privity of the 
 mortgagee, it will be no defence to an ejectment 
 brought by the mortgagee; because the mortgagor 
 has no power to let leases not subject to every cir- 
 cumstance of the mortgage, (b) The principle extends 
 also to cases where the party in possession is tenant 
 from year to year to the mortgagor, (c) 
 
 If the mortgagee assign the mortgage, and the 
 assignee assign to another, the last assignee may 
 maintain ejectment for the mortgaged premises, (d) 
 
 If there be two several mortgages of the same 
 lands, the mortgagee who has the legal estate will be 
 entitled to recover in an ejectment against the other 
 mortgagee, although his mortgage be posterior in 
 point of time, (e) 
 
 3. LORD OF A MANOR. 
 
 When the tenant of copyhold premises has com- 
 mitted an act by which he forfeits his lands, he who 
 is lord, at the time of the forfeiture committed, may 
 maintain an ejectment for the recovery of them ; but 
 this right is confined to the lord for the time being, 
 unless the act of forfeiture destroy the estate, and 
 
 (a) Doe d. Da Costa v. Wharton, cher, 3 East. 449. 
 
 ST.R.2. (d) Smartle v. Williams, Salk. 
 
 (6) Kecch d. Warne v. Hall, 245. 
 
 Doug. 21. (e) Goodtitle d Norris v. Morgan, 
 
 (c) Thunder d. Weaver v. Bel- IT. 11.755.
 
 62 OF THE TITLE, &. IN THE 
 
 then the heir of the lord, in whose time it was com- 
 mitted, may also take advantage of it. (a) 
 
 Where, however, a copyholder, holding of a manor 
 belonging to a bishopric, committed a forfeiture by 
 felling timber during the vacancy of the see, the suc- 
 ceeding bishop was allowed to maintain an ejectment 
 against him. (b) 
 
 The right of the lord to maintain ejectment against 
 his copyholder, for a forfeiture by committing waste, 
 will not be taken away by an intermediate estate in 
 remainder, between the life estate of the copyholder 
 and the lord's reversion ; for if it were, the tenant 
 for life, and remainder-man, by combining together, 
 might strip the inheritance of all the timber, (c) 
 
 When an inclosure has been made from the waste 
 for twelve or thirteen years, and seen by the stew- 
 ard of the same lord from time to time without objec- 
 tion made, it may be presumed by the jury to have 
 been made^ by the licence of the lord, and an ejectment 
 cannot be maintained by him against the tenant with- 
 out a previous notice to throw it up. (cf) 
 
 It has never been expressly decided whether the 
 statute of limitations will run against the lord, in case 
 of a forfeiture by a copyholder, and bar his taking 
 advantage of it after a lapse of twenty years ; but 
 
 (a) Wat. Copy. vol. 1. 324 to 353. (c) Doe d. Folkes v. Clements, 2 
 
 Doe d. Tarrant v. Hellier, 3 T. R. Maul. & Sel. 68. 
 
 162. (d} Doe d. Foley v. Wilson, 11 
 
 (6) B. N. P. 107. East. 56. .-
 
 ACTION OF EJECTMENT. 63 
 
 from the language of Lord Kenyon, C. J. in the case 
 of Doe {/. Tarrant v. Hellier, it seems that its provi- 
 sions would be applicable to this as well as to all 
 other rights of entry, (a) 
 
 4. COPYHOLDER. 
 
 Whilst the ancient practice of the action of eject- 
 ment prevailed, it seems to have been holden, that 
 a copyholder could not maintain an ejectment,, upon 
 a demise for a longer term than a year, unless the 
 licence of the lord were first obtained, or a special 
 custom existed in the manor enabling him to make 
 longer leases : and, in some authorities, it is even 
 doubted, whether an ejectment can in any case be 
 supported by a copyholder, (b) But since the intro- 
 duction of the modern practice, these objections are 
 wholly obviated, and the common consent rule is 
 now sufficient to enable a copyholder to maintain 
 ejectment. 
 
 A copyholder who claims by descent as heir, may 
 maintain ejectment without admittance, as his title is 
 complete ngainstall the world, except the lord, imme- 
 diately upon the death of the ancestor ; (c) but if 
 it be necessary for him to proceed against the lord for 
 a seizure on the death of the ancestor, he must prove that 
 he has tendered himself to be admitted at the lord's 
 
 (a) 3 T. R. 162172. Eastcourt v. Weeks, 1 Lut. 799 
 
 (6) Stephens v. Eliot, Cro. Eliz. 803. 
 
 483. Goodwin v. Longhurst, Cro. (c) Rex. v Rennett, 2. T. R. 
 
 Eliz. 535. Sparks' case, Cro. Eliz. 197. 
 67C. Downingham'scase,()wen,17.
 
 64 OF THE TJTLE, &C. IN THE 
 
 court, or that the lord has done some act dispensing 
 with such tender, (a) 
 
 When also the lord grants a reversion of a copy- 
 hold expectant on a life estate, as the grantee ac- 
 quires a perfect title by the grant only, he may on the 
 termination of the life estate maintain ejectment 
 without admittance, (b) 
 
 But in all cases where the copyholder claims as 
 surrenderee, (c) as the surrender and admittance 
 make but one conveyance, (d) the legal title does not 
 vest in the surrenderee, and of course he cannot 
 maintain ejectment, until after admittance; but 
 when admitted, the title relates back to the time 
 of the surrender, against all persons but the lord ; 
 and therefore a surrenderee may recover in eject- 
 ment against his surrenderor, or a stranger, upon 
 
 (a) Doe d. Burrell v. Bellamy, 2 cients, to the intent that they shall 
 
 M. & S. 87. grant the said chambers to the 
 
 (fc) Roe rf. Cash v. Loveless, 2 transferree ; which subsequentgrant 
 
 B. & A. 453. is never in point of fact made, but 
 
 (c) In the case of Doe d, Warry simply an entry of admittance in- 
 v. Miller, (1 T. R. 3U3,) it was en- serted in the Society's books. It 
 deavoured to assimilate to copyhold is therefore evident, that after the 
 principles, the practice of the So- first surrender, the legal estate al- 
 ciety of New Inn, in granting out ways remains in the Treasurer and 
 their chambers for lives. It is cus- Ancients, as trustees for the sub- 
 tomary with that Society, in such sequent tranferrees respectively, and 
 grants, to insert a clause, that the that the terms surrender and ud- 
 tenant shall not sell or assign, wiih- miltance bear not the slightest re- 
 out the licence of the Society, and semblance in their meaning, to the 
 for the grantees, when they wish to surrender, and admittance to copy- 
 transfer their interest, to surrender hold premises, 
 the chambers (upon a proper deed (d) Roe d. Jeffereys v. Hicks, 2 
 stamp) to the Treasurer and An- Wils. 13. 15.
 
 ACTION OF EJECTMENT. 65 
 
 a demise laid between the times of admittance 
 and surrender, provided the admittance be made 
 before the day of the trial, (a) 
 
 Where the devisee of a customary estate, which 
 had been surrendered to the use of the will, died 
 before admittance, it was holden that her devisee, 
 though afterwards admitted, could not recover in 
 ejectment ; for the admittance of the second devisee 
 had no relation to the last legal surrender, and the 
 legal title remained in the heir of the last sur- 
 renderor, (b) 
 
 5. LESSEE OF A COPYHOLDER. 
 
 If a copyholder, without licence, make a lease for 
 one year, or, with licence, 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 warrantable estate by the rules 
 of common law. (c) 
 
 6. WIDOW FOR HER FREE-BENCH. 
 
 (a) Holdfast </. Woollhamst;. Clap- should seem, since the legal estate 
 
 ham, 1 T. R. 600. Doe d. Ben- remains in the surrenderor until the 
 
 ningtou v. Hall, 16 East. 208. time of admittance, that this doc- 
 
 Ashurst J.in delivering the judgment trine is not applicable to the present 
 
 of the court in Holdfast d. VVooll- principles of the action. Vide Doe 
 
 hams v. Clapham, was of opinion d. Da Costa v. Wharton, 8 T. R. 2. 
 
 that the surrenderee might maintain B. N. P. 109. 
 
 ejectment against his surrenderor, (*) Doe d. Vernon v. Vernon, 7 
 
 although not admitted before the East. 8. 
 
 trial, because the surrenderor is but (c) Co. Copy. s. 5. Goodwin v. 
 
 a trustee to hit surrenderee ; but it Longhurst, Cro. Eliz. 535. 
 
 F
 
 66 OF THE TITLE, &C. 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 seized, as of free-bench, she may, after chal- 
 lenging her right, and praying to be admitted, (a) 
 maintain ejectment for them without admittance, even 
 against the lord ; because it is an excrescence which, 
 by the custom and the law, grows out of the 
 estate. (6) 
 
 But if the widow's claim be in the nature of dower, 
 an ejectment will not lie before assignment, (c) but 
 she must levy a plaint in the nature of a writ of 
 dower, in the lord's court, 
 
 7. GUARDIAN IN SOCAGE, (e) or TESTAMENTARY 
 GUARDIAN appointed pursuant to the statute 12 Car. 
 II. c. 24. s. 8. (/) 
 
 But a guardian for nurture cannot maintain eject- 
 ment, 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, (g] 
 
 (a) Co. Copy. s. 5. Goodwin v. 184. 
 
 Longhurst, Cro. Eliz. 535. (e) Litt. sec. 123, 124. Wade v. 
 
 (6) Doe d. Burrell v. Bellamy, Cole, Ld. Raym. 130. 
 
 2 M. & S. 87. (/) Bedell v. Constable, Vaugh. 
 
 (c) Jurdan v. Stone, Hutt. 18. 177. Doe d. Parry v. Hodgson, 
 Howard v. Bartlett, Hob. 181. Doe 2 Wils. 129. 
 
 d. Nutt v. Nutt, 2 C. & P. 430. (g) Ratcliff's case, 3 Co. 37. 
 
 (d) Chapman v. Sharpe, 2 Show.
 
 ACTION OF EJECTMENT. 67 
 
 8. INFANT, (a) 
 
 It is difficult to discover any principle upon which 
 both 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 testamentary 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 OF A BANKRUPT, (b) or INSOLVENT 
 DEBTOR, (c) 
 
 As all the bankrupt's property, real and personal, 
 is vested in the assignees by the statute 13 Eliz. c. 7. 
 ss. 1,2, it follows of course, that they must be in- 
 vested with all the power necessary to obtain pos- 
 session of it ; and the general assignment gives them 
 a title to all the leaseholds (except for lives) belonging 
 to the bankrupt, whether the same be in his posses- 
 sion at the time of the bankruptcy, or acquired by him 
 
 (a)Rudstonv.Yates, March. 141. (6) Beck "d. Hawkins v. Welsh, 
 Zouch v. Parsons, Burr. 1794. 1806. 1 Wils. 276. 
 Noke v. Windham, Stran. 694. (c) Doe d. Clarke v. Spencer, 3 
 Maddon d. Baker v. White, 2 T. R. Bing. 203. 370. 
 159. 
 
 F 2
 
 68 OF THE TITLE, &C. IN THE 
 
 afterwards. But with respect to the freehold lands 
 of the bankrupt, they do not pass by such assignment, 
 but must by the provisions of the statute of Elizabeth 
 be conveyed by the commissioners by deed indented 
 and enrolled ; and until the enrolment as well as the 
 bargain and sale is completed, the assignees cannot 
 maintain ejectment. The bargain and sale also only 
 affects the lands to which the bankrupt is entitled at 
 the time of its execution ; if he acquire any future 
 real estates, there must be a new bargain and sale to 
 vest the legal estate in the assignees, (a) 
 
 When a trader being seized of an estate for life, 
 with a general power of appointment, with remain- 
 der in default of appointment to himself in-fee, after 
 he had committed an act of bankruptcy, executed his 
 appointment in favour of an appointee, and was then 
 declared a bankrupt, and assigned the premises by 
 bargain and sale to his assignee ; it was held that the 
 appointment was void, and that the assignee had a 
 sufficient legal title to maintain ejectment. () 
 
 A difference prevails between cases of bankruptcy 
 and insolvency, where the party is possessed of a 
 term of years. In the former case, the term does 
 not pass by the assignment of the commissioners to 
 the assignees, unless they elect to accept it; and 
 if they decline to accept, the term will remain in 
 the bankrupt, as though no commission had issued, 
 unless he deliver up the lease within fourteen days 
 
 (a) Ex parte Proudfoot, 1 Atk. B. & A. 93. Vide 6 Geo. IV. c. 16. 
 252. Esp. N. P. 431. s. 81. 
 
 (6) Doe d. Coleman v. Britain, 2
 
 ACTION OF EJECTMENT. 69 
 
 to the lessor, and he may maintain ejectment, if 
 ousted, notwithstanding his bankruptcy. But in the 
 case of an insolvent debtor, the term vests absolutely 
 in the provisional assignee by the assignment to him ; 
 and if the assignee subsequently appointed should 
 elect not to accept the term, it will not revert to the 
 insolvent, but the lessor must make his application to 
 the Insolvent Court, who have power to make such 
 order therein as they shall deem just, (a) 
 
 10. CONUSEE OF A STATUTE-MERCHANT OR STA- 
 PLE, (b} 
 
 11. TENANT BY ELEGIT. 
 
 It is laid down in the case of Lowthal v. Tomkins, 
 (c) that if a tenant by elegit desire to obtain achml 
 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 
 Kenyon, C. J. in the case of Taylor v. Cole; (d) but 
 in the case of Rogers v. Pitcher, (e) it is said by 
 Gibbs, C. J. "I am aware that it has in several places 
 been said, that the tenant in elegit cannot obtain pos- 
 session without an ejectment, but 1 have always been 
 of a different opinion. There is no case in which a 
 party may maintain ejectment in which he cannot 
 
 (a) 6 Geo. IV. c. 16. s. 75. 7. Geo. C. & P. 526. 
 
 IV.c.57.8. 23.lWm.IV.Doed.Pal- (b) Co. Litt. 42. a. Hammond 
 
 mer v. Andrews, 4 Bing. 348. Doe d. v. Wood, Salk. 563. 
 
 Clarke v. Spencer, 3 Bing. 203, 370. (c) 2 Eq. Ca. Ab. 380, 
 
 Copeland v. Stephens, 1 B. &A. 593. (d) 3 T. R. 295. 
 
 Crofts v. Pick, 8 Moore, 384; S.C. (e) 6 Taunt. 202. 
 1 Bing. 154. Lindsay v. Limbert, 2
 
 70 OF THE TITLE, &C. IN THE 
 
 enter. The ejectment supposes 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 deciding 
 these points which I only throw out in answer to the 
 argument that has been used." () 
 
 When a tenant in possession claimed under a lease 
 granted prior to the date of the judgment against his 
 lessor, 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 ; (5) 
 but where the possession of the tenant was subsequent 
 to the date of the judgment, although prior by two 
 years to the issuing of the writ of elegit and inquisi- 
 tion thereon, the title of the tenant by elegit was not 
 barred, (c) If, however, the tenant does not himself 
 claim this protection, but suffers judgment by default, 
 it will not avail the judgment debtor, though he may 
 appear as landlord and defend the action, (d) 
 
 12. PERSONAL REPRESENTATIVE, (e) 
 
 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 intes- 
 tate, (f) 
 
 (a) 6 Taunt. 202. (d) Doe d. Cheese v. Creed, 2 
 
 (6) Doe d. Da Costa v. Wharton, M. & P. 648. 
 
 8 T. R. 2. ( e ) 4 Edw. III. c. 7. 
 
 (c) Doc d. Putlaiid v. Hilder, 2 B. (/) Slade's case, 4 Co. 92, 95, (a). 
 
 & A - 78 2- Doe d. Shore v. Porter, 3 T. R. 13.
 
 ACTION OF EJECTMENT. 71 
 
 Personal representatives may recover in ejectment 
 under the statute 29 Car. II. c. 3. s. 12, appropriat- 
 ing- estates held pur autre vie where there is no 
 special occupant. But this statute does not extend to 
 copyholds, and therefore one who was admitted te- 
 nant upon a claim as administrator de bonis non to 
 the grantee of a copyhold pur autre vie, was not per- 
 mitted to maintain ejectment, (a) 
 
 13. DEVISEE. 
 
 Where the devise is of a freehold interest, the 
 devisee may immediately, and without any posses- 
 sion, maintain ejectment for the lands devised; (6) 
 but if it be a legacy of a term of years, he must first 
 obtain the assent of the executors to the bequest, (c) 
 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, (d) 
 
 14. GRANTEE OF A RENT-CHARGE, having power 
 to enter upon the lands, if the rent be in arrear, and 
 hold them until satisfaction, (e) 
 
 These rights of entry are always taken strictly ; 
 and where a man gave a leasehold estate by will to 
 J5., his executors, &cc., subject to a rent-charge to his 
 wife during her widowhood, with a power to the 
 
 (a) Zouch d. Forse v. Forse, 7 (rf) Doe d. Lord Say and Sele v. 
 
 East. 186. Guy, 3 East. 120. 
 
 (6) Co. Litt. 240, (6). (e) Jemott v. Cowley, 1 Saund. 
 
 (c) Young v. Holmes, Stran. 70. 112.
 
 72 OF THE TITLE, &,C. IN THE 
 
 widow to enter for non-payment of rent, and to en- 
 jo)', &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, administrators, 
 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, (a) 
 
 15. ASSIGNEE OF THE REVERSION, upon a Right of 
 Re-entry for Condition broken. () 
 
 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 be- 
 came general, and leases for years a valuable pos- 
 session. 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 cor- 
 porations, had until that time solely enjoyed; and 
 this statute is made most general in its operation, by 
 particularly including the grants from the Monarch 
 of those lands, which had then recently become the 
 property of the crown by the dissolution of the mo- 
 nasteries. 
 
 (a) Hassell d. Hodson v.Gowth- (6) 32 Hen. VIII. c 34. 
 \vaite, Wjllcs, 500.
 
 ACTION OF EJECTMENT. 76 
 
 The words of the statute grant the privilege of re- 
 entry to the assignees " for non-payment of rent, or 
 for doing waste, or for other forfeiture ; n but these 
 latter words have been limited in their interpretation 
 to (( other forfeiture of the same nature" and extend 
 to the breach of such conditions only, as are incident 
 to the reversion, or for the benefit of the estate. 
 Thus, the assignee may take ad vantage of conditions for 
 keeping houses in repair, for making of fences, scouring 
 of ditches, preserving of woods, &c. but not of colla- 
 teral conditions, as for the payment of a sum in gross, 
 or for the delivery of corn, or wood, or such like, (a) 
 
 In Spencer's case, () many differences are taken 
 and agreed between collateral or personal covenants, 
 and covenants which run with the land or are inci- 
 dent to the reversion; and much learning is dis- 
 played, which it would be foreign to the purposes 
 of this treatise to discuss ; but it may be useful to 
 present a concise view of the decided cases. 
 
 A. covenanted for himself his executors and ad- 
 ministrators, that he would build a wall upon part 
 of the land demised; the assignee was not bound 
 by this covenant, because the wall was not in esse at the 
 time of the demise made, but to be newly built after; 
 but it was resolved, that if the lessee had covenanted 
 for himself and his assigns expressly, it would have 
 bound the assignee, although the wall was not in esse, 
 inasmuch as what was covenanted to be done, was 
 to be done on the land demised ; (c) but if the 
 
 (a) Co. Litt. 215, (b.) (c) Spencer's case, 5. Co. 16. Bally 
 
 (6) 5 Coke, 16. v. Welle, 3 Wils. 25.
 
 74 OF THE TITLE, &C. IN THE 
 
 matter covenanted to be done does in no man- 
 ner touch or concern the thing demised, as to build 
 a wall on other land, or pay a collateral sum to the 
 lessor, the assignee, though named, will not be 
 bound. (a) 
 
 A covenant in a lease of land, that the lessee or his 
 assigns will not hire persons to work on the demised 
 premises who are settled in other parishes, is a collate- 
 ral covenant, and does not bind the assignee, although 
 expressly named ; for it does in no way affect the 
 thing demised, although it may collaterally affect 
 the lessor by increasing the poor rates upon him. 
 
 A covenant to supply the demised premises with 
 good water during the term runs with the land, for 
 it is a covenant which respects the premises demised, 
 and the manner of enjoyment, (c) 
 
 A covenant to insure against fire, premises si- 
 tuated within the weekly bills of mortality mentioned 
 in 14 Geo. III. c. 78, is a covenant that runs with the 
 land ; because, by the operation of the 83rd sec. 
 (which enables the landlord, by application to the 
 directors of the insurance office, to have the sum 
 insured laid out in rebuilding the premises) this is 
 in effect a covenant to lay out a given sum of money 
 in rebuilding or repairing premises in case of damage 
 by fire, which clearly is a covenant running with the 
 
 (a) Vernon v. Smith, 5 B, & A. 1. (c) Jourdain v. Wilson, 4 B. & 
 (ft) The Mayor of Congleton v. A. 266. 
 Pattison, 10 East. 130. * ;V
 
 ACTION OP EJECTMENT. 75 
 
 land. Best, J. was of opinion, that if the premises 
 had not been within the limits of the act, it would not 
 have varied the case, because the original covenantee 
 could not avail himself of the covenant, inasmuch 
 as after the assignment he sustains no loss by the 
 destruction of the buildings ; and " a covenant in a 
 lease, which the covenantee cannot, after his assign- 
 ment, take advantage of, and which is beneficial to 
 the assignee as such, will go with the estate as- 
 signed ;" and he defines collateral covenants to be 
 such covenants as are beneficial to the lessor, with- 
 out regard to his continuing the owner of the estate ; 
 but the judgments of the other judges proceed entire- 
 ly on the ground of the locality of the premises, (#) 
 
 A. being seized of a mill, and of certain lands, 
 granted a lease of the latter for years, the lessee 
 yielding and paying to the lessor his heirs and as- 
 signs, certain rents, and doing suit to the mill of the 
 lessor his heirs and assigns, by grinding all such corn 
 there as should grow upon the demised premises; 
 this reservation of the suit to the mill is in the nature 
 of a rent, and the implied covenant to render it re- 
 sulting from the reddendum, is a covenant that runs 
 with the land, so long as the ownership of the mill 
 and the demised premises belong to the same per- 
 son. (6) 
 
 A condition that a lessee shall not assign over his 
 term, without licence from the lessor, is a collateral 
 
 () Vemon v. Smith, 5 B.& A. 1. (&) Vivyan v. Arthur, 1 B.& C. 410.
 
 7(> OP THE TITLE, &C. IN THE 
 
 condition ; and cannot be taken advantage of by the 
 assignee of the lessor, () 
 
 The assignee of part of the reversion in all the 
 lands demised, is an assignee within this statute, but 
 the assignee of the reversion in part of the lands is 
 not ; for the condition being entire, cannot be appor- 
 tioned by the act of the parties, but shall be destroy- 
 ed. If, therefore, A. be lessee 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 whatso- 
 ever, even in-fee, of two acres only, be granted to B. 
 he cannot, (b) 
 
 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 ; 
 (6) nor to an assignee by estoppel only ; (c] 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, (d) 
 
 This estate is held not to extend to gifts in-tail, (b) 
 
 (a) Lucas v. How, Sir T. Rayra. (c) Awder v. Nokes, Moore, 419. 
 250. Collins v. Silley, Stiles 265. (</) Threr v. Barton, Moore, 94. 
 Pennant's case, 3 Co. 64. Chaworth . Philips, Moore, 876. 
 
 (b) Co. Lilt. 215, (a), Webb v. Russell, 3 T. C. 393. 401.
 
 ACTION OF EJECTMENT. 77 
 
 but copyhold lands are within its intention and 
 equity (a) 
 
 16. ONE HAVING HAD AN ADVERSE POSSESSION FOR 
 TWENTY YEARS. 
 
 An adverse possession for twenty years is not only 
 an available defence to the party whilst he continues 
 in possession, but it gives him (unless affected by 
 some of the exceptive provisions in the statute of 
 limitations) (b) a complete possessory right to the 
 lands, and is a sufficient title to enable him to main- 
 tain an ejectment against any person who ousts him 
 after the expiration of the twenty years, (c) 
 
 It seems that this doctrine will hold between the 
 party having had the adverse possession 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, (d) 
 
 But if the possession of the party be affected by 
 any of the provisions of the second section of the 
 statute of limitations, (b) or if the lands be the pro- 
 perty of the Crown or the Church, the defendant may 
 avail himself thereof, in answer to the claim arising 
 from the adverse possession, without showing any title 
 
 (a) Glover v. Cope, Carth. 205. mond, 741. 
 
 (i) Ante, 46. 55. (d) Doe d. Burrough v. Reade, 
 
 (c) Stocker v. Barney, Ld. Kay- 8 East. 358.
 
 78 OP THE TITLE, &C. IN THE 
 
 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 pre- 
 sumed 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 pos- 
 session for less than sixty years will then be suffi- 
 cient to enable him to maintain an ejectment. And in- 
 deed as the stat. 9 G. I. c. 16, only bars the suit 
 of the Crown after a continuing adverse possession 
 of 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 
 ejectment, (a) 
 
 17. CORPORATION AGGREGATE, OR SOLE. 
 *{y,j;v/T , 
 
 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 reason- 
 ing seems only to apply where the King is made 
 plaintiff, and not where he is the lessor of the plain- 
 tiff ; for it is the lessee, and not the lessor, 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 reversion out of the Crown, and may have 
 
 (a) Goodtitle d. Parker v. Baldwin, 11 East. 488.
 
 ACTION OF EJECTMENT. 79 
 
 his ejectment to recover the possession, if he be af- 
 terwards ousted ; because there is a possession in 
 pais, 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 ejectment to 
 punish the trespasser, and to recover the possession 
 which was taken from him. (a) 
 
 In cases, however, included in the stat. 8 Hen. VI. 
 16, and 18 Hen. VI. 6, which prohibit the granting 
 to farm of lands, seized 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 con- 
 trary thereto, the King cannot maintain an ejectment 
 until all the previous requisites are complied with : 
 for, even presuming the right and possession to be in 
 the Crown immediately on the death of the person 
 last seized, the King has no power to grant the same 
 until after office found, and, consequently, he must 
 be considered to be himself in possession, and there- 
 fore unable to give a title to his lessee. 
 
 18. CHURCHWARDENS and OVERSEERS OF THE POOR 
 for lands belonging to the parish. 
 
 To remedy the practical inconveniences which 
 frequently arose from the difficulty of substantiat- 
 
 (a) Payne's case, 2 Leon. 205. (1) Doe d. Hayne v. Redfern, 13 
 Lee v. Norris, Cro. Eliz. 331. East. 96.
 
 80 OF THE TITLE, &C. IN THE 
 
 ing a legal title to parish lands, (a) it was enacted 
 by the stat. 55 Geo. III. c. 12, s. 17, that church- 
 wardens and overseers of the poor, and their succes- 
 sors, should take and hold in the nature of a body 
 corporate, for and on behalf of the parish, all build- 
 ings, lands, and hereditaments belonging to the parish ; 
 and that in all actions, suits, and other proceedings 
 for or in relation to any such buildings, lands, or 
 hereditaments, it shall be sufficient to name the over- 
 seers and churchwardens of the poor for the time 
 being, describing them as churchwardens and over- 
 seers of the poor of the parish for which they shall 
 act, and that no suit or other proceeding shall abate 
 by reason of the death of any such churchwarden or 
 overseer. 
 
 In order to constitute the body corporate intended 
 by this act, there must be two overseers, and a 
 churchwarden or churchwardens ; and where there 
 were two overseers appointed, one of whom was 
 afterwards appointed (by custom) sole churchwarden, 
 the act did not vest parish property in them. (6) 
 
 1 9. RECTOR, OR VICAR, FOR TITHES, (c) 
 
 The statute which gives this remedy for tithes, in- 
 cludes only lay impropriators, leaving spiritual per- 
 sons to pursue the old remedy in the Ecclesiastical 
 Court ; though the doctrine has since been extended 
 
 (a) Doe d. Grundy v. Clarke, 14 433. 
 
 East. 488. (c) Camell v. Clavering, Lord 
 
 (ft) Woodcock v.Gibson, 4 B. & C. Raym. 789. 
 462. Phillips v. Pearse, 5 B. & C.
 
 ACTION OP EJECTMENT. 81 
 
 by analogy to tithes in the hands of the clergy.(a) 
 But an ejectment for tithes can only be maintained 
 against persons claiming or pretending to have title 
 thereto, and not against such persons as refuse or 
 deny to set them out, which is called subtraction of 
 tithes : () nor will it lie where the tithes are not 
 taken in kind, but an annual sum is paid in lieu 
 thereof, (c) 
 
 A parson cannot maintain ejectment for glebe land 
 after sequestration, (d) 
 
 As a simoniacal presentation is altogether void, 
 the presentee of the King may, after institution and 
 induction, maintain ejectment against a parson, who 
 has been simoniacally presented, although he has 
 been in the receipt of the rents and profits of the 
 rectory, (e) 
 
 20. TRUSTEES. 
 
 In all cases in which the trusts are not executed by 
 the statute of uses, the legal estate vests in the trus- 
 tees, and of course in such cases they may maintain 
 ejectment. 
 
 The principles upon which this doctrine is founded 
 
 (a) Co. Litt. 159. Baldwin . (d) Doe d. Morgan v. Bluck, 3 
 Wine, Cro. Car. 301. Camp. 447. 
 
 (6) 2 and 3 Edw. VI. c. 13. s. 13. (e) Doe d. Watson v. Fletcher, 
 (c) Dyer, 116, (b). 8 B. & C. 25. 
 

 
 8!2 OP THE TITLE, &C. IN THE 
 
 have already been discussed ; (a) and it therefore only 
 remains 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 person in trust to pay over the rents and profits to 
 another, (6) 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. " 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 es- 
 tate 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 ?" (c) 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 re- 
 quired 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 
 
 (a) Ante, 33. Broughton v. Langley, Salk. 679 ; 
 
 (i) Shep. Touch. 482. 1 Eq. Cas. S. C. 1 Lut. 814. Burchettu. Dur- 
 
 Ab. 383, 384. Shapland v. Smith, dant, 2 Vent. 311. Tenny d. Gibbs 
 
 Brown, Chan. Cas. 75. Silvester d. v. Moody, 3 Bing. 3. 
 
 Law v. Wilson, 2 T. R. 444. Jones (c) Doe d. Leicester v. Biggs, 2 
 
 v. Ld. Say and Sele, 8 Vin. Ab. 262. Taunt. 109. 113.
 
 ACTION OF EJECTMENT. 83 
 
 certainly it has happened in all the later cases, that 
 the trustees have been required to do other acts, as 
 well as to pay the rents and profits, (a) 
 
 In cases where it is necessary for the purposes of 
 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 cestuique trust to re- 
 ceive the rents and profits ; as where the trust was, 
 that the trustees should permit a feme covert to re- 
 ceive and take the rents and profits, during her natural 
 life, for her sole and separate use, they were held to 
 have the legal estate ; such construction being neces- 
 sary to give legal effect to the testator's intention to 
 secure the beneficial interest to the separate use of the 
 feme covert, (b) 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 apply the purchase-money to certain trusts 
 mentioned in the deed, with a proviso, that the rents, 
 issues, and profits, until 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 immediately, 
 even before A. had given his consent to the sale ; aud 
 that it was not a mere power of sale annexed to the 
 legal estate of the owner, (c) 
 
 (a) Jones v. Ld. Say and Sele, (6) Harton v. Harton, 7 T. R. 
 3 Vili. Ab. 262. Kenrick v. Lord 652.j 
 
 Beauclerk, 3 B. & P. 175. Doe d. (c) Keene d. Lord Byron v. Dear- 
 Hallen v. Ironmonger, 3 East. 533. ^don, 8 East. 248. 
 
 G 2
 
 84 OP THE TITLE, &C. IN THE 
 
 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 
 monies 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, 
 &cc. with the approbation of any one of the trustees, 
 should be good and valid, she providing for and edu- 
 cating properly the testator's children, and also pay- 
 ing 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 testator's 
 intent that it should be executed. The Courts will 
 rather say the use is not executed, because the appro- 
 bation 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. e I leave my wife to receive the rents, 
 6 provided there is always the controul of one of the 
 e trustees upon her receipts/ The testator, there- 
 fore, certainly meant that some controul should be 
 exercised, and what could that controul be, ex-
 
 ACTION OF EJECTMENT. 85 
 
 cept they were to exercise it in the character of 
 trustees ?" (a) 
 
 Where certain freehold and leasehold premises 
 were devised 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 portion for younger child- 
 ren, &c. and immediately after the last of the dif- 
 ferent devises a proviso followed, " that it should be 
 lawful for the trustees, and the survivor, at any time 
 or 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 afore- 
 said, to lease the same, or any part thereof," it was 
 holden, that the legal estate in the freehold lands con- 
 tained in the first devise, vested in the widow, not- 
 withstanding 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 lease- 
 holds,) " the trustees having no controul over the 
 lands in the first devise for any purposes of the tes- 
 tator's will." (b) 
 
 (a) Gregory v. Henderson, 4 (A) Knight (/.Phillips v. Smith, 12. 
 Taunt. 772. East. 455.
 
 86 OF THE TITLE, &C. IN THE 
 
 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. () 
 
 In a case where the devise was, " I give and be- 
 queath my real estates,, lands, 8$c. and also my per- 
 sonal 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 payment of my debts, 
 &c. and as to all my real estates, wheresoever and 
 whatsoever, subject to my debts, and such charge or 
 charges as I may now, or at any time or times here- 
 after, think proper to make, I give, devise, and be- 
 queath the same to C. D., for the term of his natu- 
 ral life, with remainder to E. F., &c." it was holden 
 that the legal estate was vested in C. D., because an 
 intention that the trustees should pay the debts was 
 not apparent on the face of the will, and therefore 
 there was no reason for giving the legal estate to the 
 trustees. (#) 
 
 Where freehold estates are devised to trustees 
 and their heirs, with a devise over, difficult questions 
 frequently arise, as to the quantum of estate taken by 
 the trustees, which it would be foreign to the pur- 
 poses of this treatise to discuss ; but it may be laid 
 
 (a) Doe d. Leicester v. Biggs, 2 assigned for their decision was 
 
 Taunt. 109. Mansfield, C. J. in de- given for want of a better, 
 
 livering the judgment of the Court (b) Kenrick v. Beauclerk, 3 B. & 
 
 in this case, said, the reason they P. 175.
 
 ACTION OF EJECTMENT. 87 
 
 down as a general principle, that where an estate is 
 given to trustees, their heirs, executors, administrators, 
 and assigns, such words will, according to their natu- 
 ral import, give the fee to the trustees, unless it 
 clearly appears from the whole will, that it was not the 
 intention of the devisor, that the trustees should take 
 the fee, but some less estate ; in which case, the will 
 will be so construed, as that the less estate should be 
 taken, and not the fee ; (a) and of course, in such 
 cases, the trustees cannot, after the determination of 
 such less estate, maintain ejectment. 
 
 As the statute of uses mentions only such persons 
 as are seized to the use of others, it has been held 
 not to extend to terms of years, or other chattel in- 
 terests, whereof the termor is not seized, but only pos- 
 sessed', and therefore, when only a term of years is 
 created, whatever the nature of the trusts maybe, the 
 statute does not execute the uses, but the legal estate 
 always vests in the trustees, (b) 
 
 And when a term of this kind is created, it does 
 not cease when the trusts are satisfied, unless there is 
 a proviso to that effect in the deed creating the term ; 
 and therefore, when the deed contains no such pro- 
 viso, the legal estate, however ancient the term may 
 be, and notwithstanding it may have been assigned to 
 attend the inheritance, will remain outstanding in the 
 trustees, or their representatives, until it be surren- 
 
 (a) Doe d. Tomkyns v. Willan, & C.357, S.C. 3 B. & C. 191. 
 
 2 B. & A. 84. Houston v. Hughes, (b) Dillon v. Fraine, Poph. 70 
 
 6 B. & C. 403. Murthwaite v. 76 ; Dyer, 369 ; Jenk. 244. 
 Barnard, 2 B. & B.624, S. C. 2B.
 
 88 OF THE TITLE, &CC. IN THE 
 
 dered to the party beneficially interested, or merge in 
 a larger estate, (a) 
 
 Copyhold estates also are not comprehended within 
 the statute of uses ; because a transmutation of pos- 
 session, by the sole operation of the statute, without 
 the concurrence or permission of the lord, would be 
 an infringement of the lord's rights, and would tend 
 to his prejudice ; and therefore, if a copyhold be sur- 
 rendered to A. to the use of B., the legal estate will 
 not be transferred to B., though he would be entitled 
 in equity to the rents and profits, and to call upon A. 
 for a surrender of the estate. (6) 
 
 It seems to have been held, in the case of Roe d. 
 Ebrall v. Lowe, (c) that a bond fide lease, made by 
 an equitable tenant in-tail, will prevent the trustees, 
 in whom the legal estate is vested, from recovering in 
 ejectment against the lessee ; although, if the lease 
 be granted under suspicious circumstances of fraud 
 and imposition, the trustees will not be barred. But 
 this principle cannot now be supported, and a lease 
 from the cestui que trust cannot be set up against the 
 trustee in any case, without the aid of a court of 
 equity, (d) 
 
 To obviate the inconveniences which may at times 
 arise, when, an ejectment is brought by a cestui que 
 trust, from the operation of the salutary maxim that 
 the legal title must prevail, as affecting his situation 
 
 (a) Vide Sugden's Vendors and (c) 1 H. Blk.446. 
 Purchasers, 3d Edit. 263. 293. (d) Baker v. Mellish, 10 Vez. Jr. 
 
 (fr) Co. Cop. s. 54. Gilb. Ten. 182. 544.
 
 ACTION OF EJECTMENT. 89 
 
 with his trustees, the jury will in particular cases be 
 permitted to presume, that a regular surrender has 
 been made by the trustees of their estate ; thereby 
 clothing the cestui que trust with the legal title, and 
 enabling him to recover in the action. Thus a sur- 
 render will be presumed if the purposes of the trust- 
 estate have been satisfied; (a) or if the beneficial 
 occupation of the estate by the possessor induces 
 a supposition, that a conveyance of the legal estate 
 has been made to the party beneficially interested ; 
 or where it is for the interest of the owner of the 
 inheritance, that the term should be considered as 
 surrendered, (6) or when the trust is a plain one, and 
 a court of equity would compel the trustees to make a 
 conveyance, (c) But this presumption will not be 
 made if the surrender be a breach of the trust; or 
 against the owner of the inheritance who is interested 
 in upholding it ; (d) or where the title of the party, for 
 whom the presumption is required, is a doubtful 
 equity only, until a court of equity has first declared 
 in favour of the equitable title ; (e) nor can the pre- 
 sumption be made by the court, where the merit of 
 the case would have warranted such presumption at the 
 trial, if it appear, upon a special verdict, or special case 
 reserved for their opinion, that the trust-estate though 
 satisfied, is still, in point of fact, outstanding in the 
 trustees, (f) 
 
 (a) Doe d. Hodson v. Staple, 2 T. (</) Doe d. Graham v. Scott, 1 1 
 
 R 684. East. 478. 
 
 (6) Doe d. Burdett v. Wright, 2 (e) Keene d. Lord Byron v. Dear- 
 
 B. & C. 7 10. don, 8 East. 248. 
 
 (c) Doe</. Syburn v. Slade,4 T. (/) Goodtitle d. Jones v. Jones, 
 
 R.682. 7 T. It. -13.
 
 90 OF THE TITLE, &C. IN THE 
 
 Where a term of years was created in 1762, and 
 assigned over to a trustee in 1779 to attend the inhe- 
 ritance; and in 1814 the owner of the inheritance 
 executed a marriage-settlement, and in 1816 con- 
 veyed his life interest in the estate to a purchaser, as 
 a security for a debt, but no assignment of the term, or 
 delivery of the deeds relating to it, took place on either 
 occasion ; and in 1819 (a few weeks before the trial 
 of the cause,) an actual assignment of the term was 
 made by the administrator of the trustee in 1 779, to a 
 new trustee for the purchaser in 1816 ; it was held, 
 upon ejectment being brought by a prior incumbrancer 
 against the purchaser, that the jury were warranted in 
 presuming that the term had previously to 1819 been 
 surrendered, (a) Abbott, C. J. in delivering the 
 judgment of the court in this case, observed that the 
 principal ground of objection made to the presump- 
 tion was, that it was to be made against the owner 
 of the inheritance, the former instances being all in 
 favour of such owner ; but that such presumption 
 might be made against, as well as for the owner, if 
 the justice of the case required it ; and instanced the 
 case of a mortgagor setting up a term against his own 
 mortgagee, for if in such case, the term existed at 
 the time of the mortgage, the mortgagor ought in 
 honesty to have secured the benefit of it to the mort- 
 gagee at the time, and not to have reserved it in his 
 own power, as an instrument to defeat his mortgage. 
 And he stated as one of the general grounds of a pre- 
 sumption, " the existence of a state of things, which 
 may most reasonably be accounted for, by supposing 
 
 () Doe d. Putland v. Hilder, 8 B. & C. 782.
 
 ACTION OF EJECTMENT. 91 
 
 the matter presumed" illustrating the principle by 
 the facts of the case then under consideration. 
 
 Where the demised premises were settled for life 
 on A. 9 with power to charge the estate with an annuity 
 for a husband, and portions for younger children, and 
 power to grant leases for twenty-one years; and A. 
 granted and appointed the same for five hundred years, 
 to trustees upon trust, if she should by deed so ap- 
 point, by mortgage or sale of the term to raise portions 
 for the younger children ; and after such grant and 
 appointment, leased the premises for twenty-one 
 years to B. ; it was held, that taking the whole deed 
 together, the term, until it was called into action, was 
 subservient to the leasing power ; and was therefore 
 no answer to an ejectment brought by B. (a) 
 
 21. JOINT TENANT, COPARCENER, OR TENANT IN 
 COMMON, against his companion on an actual ouster. (6) 
 
 22. LUNATIC. 
 
 The ejectment must be brought in the name of the 
 lunatic ; for his committee is but a bailiff, and has 
 no interest in the land, (c) 
 
 23. And to these we may add, that an award, under 
 a submission to arbitration, will give a good title on 
 which to maintain this action ; for although the 
 award cannot have the operation of conveying the 
 
 (a) Doe d. Courtall v. Thomas, Cocks v. Darson, Hob. 215. Knipe 
 
 9 B. & C. 288. v. Palmer, '2 Wils. 130. ted vide 
 
 (6) Ante, 54, 43 Geo. III. c. 75. 
 (c) Drury v. Fitch, Hutt. 16.
 
 92 OP THE TITLE, &C. 
 
 land, there is no reason why the defendant may not 
 conclude himself, by his own agreement, from dis- 
 puting the title of the lessor of the plaintiff in eject- 
 ment. The parties consent that the award of an ar- 
 bitrator chosen by themselves shall be conclusive, as 
 to the right of the land in controversy between them ; 
 and this is sufficient to bind them in the action of 
 ejectment, (a) 
 
 (a) Doe d. Morris v. Rosser, 3 East. 15.
 
 93 
 
 CHAPTER IV. 
 
 Of the Cases which require an actual Entry upon the 
 land before Ejectment brought. 
 
 WHEN an entry is required only to complete the 
 claimant'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 common consent rule will be sufficient 
 to enable him to maintain ejectment, without any 
 actual entry upon the lands in dispute ; but when 
 the entry is requisite to rebut the defendant's title, 
 an actual entry upon them must be made, before the 
 action can be supported, (a) Such, at least, is the 
 principle laid down by Lord Mansfield ; but the ap- 
 plication 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, (b) rather than from the 
 
 (a) Per Lord Mansfield, C, J. in 47784. 
 Goodright d. Hare v. Cater, Doug. (b) 4 Hen. VII. c. 24.
 
 94 OF ACTUAL ENTRY. 
 
 general principle above mentioned. By that statute 
 it is enacted, that when a fine is levied with procla- 
 mations, 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 (provided at such 
 time they be under any legal disability) within five 
 years next after such disability shall cease ; and as the 
 action of ejectment was not used, at the time of the 
 enactment of this statute, for the trial of titles, the 
 word action in it has been interpreted to extend to 
 real actions only, and not to comprehend the remedy 
 by ejectment. When, therefore, a forfeiture is com- 
 mitted by the levyingof 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 entry, and thereby avoided the fine, 
 an ejectment will afterwards lie for the recovery of 
 the forfeited lands, in the same manner as if the te- 
 nant had forfeited his estate by the breach of any con- 
 dition annexed to his grant. 
 
 This seems to be the true principle upon which an 
 actual entry is deemed necessary when a fine with 
 proclamations has been levied; and it is sanctioned 
 by all the modern decisions, although a different doc- 
 trine was formerly maintained. In 1703, it was de- 
 clared 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 de-
 
 OP ACTUAL ENTRY. 95 
 
 claration, interpret the maxim to extend to fines ge- 
 nerally, whether with or without proclamations ; 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, (a). 
 
 It is somewhat singular that neither of these cases 
 is noticed in any of the subsequent decisions by which 
 they have been over-ruled ; (b) although from the su- 
 periority of the modern doctrine, the omission can by 
 no means be regretted. 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." (c) 
 
 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 declaration before the time 
 of levying the fine, such entry was sufficient to en- 
 title 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 
 levying of a fine, cannot avoid a fine afterwards 
 levied ; and if it be said that the entry and demise, 
 
 (a) Berrington v. Parkhurst, And. Burr. 1895. Jenkins d. Harris v. 
 
 125. S. C. Stran. 1086. S. C. 13 Pritchard, 2 Wils. 45. Doe d. 
 
 East. 489. Tapner d. Peckham t. Duckett w. Watts, 9 East 17. 
 
 Merlott, Willes, 177. (c) Goodright d. Hare v. Cator, 
 
 (6) Gates d. Wigfall v. Brydon, Doug. 477. 85.
 
 96 OF ACTUAL ENTRY. 
 
 being before the levying of the fine, enabled the 
 lessor to show a good title at the time of the demise, 
 and so prevented the defendant from giving the sub- 
 sequent 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, (a) 
 
 A fine cannot be avoided by entry, except when 
 the person, 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 ope- 
 rate as a discontinuance of the estate, a real action 
 must be resorted to. Such is the case when a fine is 
 levied by a tenant in-tail. () 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 re- 
 lease, covenant to stand seized, &c. and the grantee 
 be seized by virtue of such conveyance, a fine levied 
 afterwards by the tenant in-tail, will not operate as a 
 discontinuance of the estate-tail ; but the remainder- 
 man, or reversioner, 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, (c] 
 
 A fine levied by a tenant for life operates as a for- 
 feiture of his estate, and divests also the estate of the 
 
 (a) Musgrave d. Hilton v. Shelly, Burr. 704. 
 
 1 Wils. 214. (c) Seymour's case, 10 Co. 96. 
 
 (fe) Doe d. Odiarne v. Whitehead, Ante, 35.
 
 OP ACTUAL ENTRY. 97 
 
 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, be- 
 
 fore ejectment can be maintained ; (a) 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 preced- 
 
 ing estate. When also there are several remainder- 
 
 men in succession, the laches of one remainder-man 
 
 will not prejudice the others, but each remainder- 
 
 man will be entitled to his right of entry within five 
 
 years after his title accrues, notwithstanding the laches 
 
 of those who have preceded him. But this right can only 
 
 be exercised by the original remainder-men and rever- 
 
 sioners, and will not pass by assignment or devise, (b) 
 
 When a lessee for years makes a feoffment, and 
 then levies a fine to his feoffee, an actual entry is 
 necessary to avoid the fine, (c) 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, (d) 
 
 But where a fine is levied by a tenant for life with- 
 out any previous feoffment, although it amounts to a 
 forfeiture of his estate, it is, from the want of a free- 
 
 (a) Doe d. Compere v. Hicks 7 T. v Windsor, 2 Ves. 472. 481. 
 
 R.433. (d) Whaley v. Tankard, 2 Lev. 
 
 (6) Goodright d. Fowler v. For- 52. S. C. 1 Vent. 241. S. C. Sir 
 
 rester, 8 East 552. T. Raym. 219. Vide cont. per. Cat- 
 
 (c) Hunt v. Bourne, Salk. 339, line, J.Stowell v. Zouch,Plow.374. 
 
 and the cases there cited. Pomfret (a). Podger's case, 9 Co. 105, (6). 
 
 H
 
 98 OF ACTUAL ENTRY. 
 
 hold interest in the parties, wholly inoperative, (a) 
 and consequently does not require an actual entry to 
 avoid it ; but the reversioner may recover the pre- 
 mises by ejectment, as upon a right of re-entry for 
 the breach of any condition or covenant contained in 
 a lease, (b) 
 
 So likewise a fine levied by a mortgagor is inopera- 
 tive, (c) 
 
 It is also necessary that there should be an 
 interest in possession in the conusor at the time of 
 the fine being levied ; and therefore an actual entry 
 is not necessary where a fine is levied by a person in 
 remainder, (d) or by one who has parted with the im- 
 mediate estate of freehold, (e) or who is not actually 
 seized at the time of levying the fine, (f) 
 
 As the possesion of one joint tenant, parcener, or 
 tenant in common, is in contemplation of law the 
 possession of his companion also, (g) a fine levied by 
 a joint tenant, parcener, or tenant in common, pre- 
 viously to an actual ouster of his companion, will not 
 operate to divest his companion's estate ; and if the 
 
 (a) Shep. Touch. 14, and the cases B. & A. 85. Doe d. James v. Har- 
 cited in Hunt v. Bourne, 1 Salk, ris, 5 M. & S. 326. 
 
 339. 341, (6). (e) Rowe v. Power d. Boyce, 2 
 
 (b) Fenn d. Mathews v. Smart, 12 N. R. 1. 
 
 East. 444. Peaceable d. Horn- (/) Doe d. Ligberd v. Lawson, 8 
 
 blower v. Read, 1 East. 568. 74. B. & C. 606. Doe d. Osborne v. 
 
 Doerf. Burrell v. Perkins, 3 M. & S. Spencer, 11 East. 495. Doe d. Da- 
 
 271. et vide 1 Saund. 319, c . vis v. Davis, 1 C. & P. 130. 
 
 (c) Doe d. Surtees v. Hall, 5 (g) Ford v. Gray, Salk. 285. S. C. 
 B. & A. 687. 6 Mod. 44. Sraales v. Dale, Hob. 
 
 (d) Roe d. Truscott v. Elliot, 1 120.
 
 OF ACTUAL ENTRY. 99 
 
 party so levying the fine afterwards actually oust his 
 companion, an ejectment may be maintained against 
 him without an actual entry on the lands, (a) 
 
 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 it. (6) When 
 also a tenant for life does not levy, but merely ac- 
 cepts a fine, although such acceptance will create a 
 forfeiture of his estate* (c) 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 re- 
 mainder or reversion, and consequently no entry is 
 necessary to avoid it. (d ) 
 
 A husband claiming lands in right of his wife must 
 enter within five years after his title accrues, or the 
 fine will operate as a bar during the coverture, but 
 an infant may avoid a fine by entry at any time 
 during his infancy, (e) 
 
 The entry must be made by the party who claims 
 the land, or by some one appointed for him ; (jO 
 although if the entry be made by a stranger, in the 
 name of the person who has the right, without any 
 previous command from him, and he afterwards assent 
 
 (a) Peaceable d. Hornblower v. (d ) Podger's case, 9 Co. 106, (b.) 
 
 Read, 1 East. 568. Green v. Proude, 1 Mod. 117. S. C. 
 
 (6) Doe d. Duckett v. Watts, 9 1 Vent. 257, 8. 
 
 East. 17, set vide Tapner d. Peckbam (e) Doe d. Wright v. Plumptree, 
 
 v. Merlott, Willes, 177. 3 B. & A. 474. 
 
 (c) Co. Litt. 252, (a). (/ ) Co. Litt. 258, (a).
 
 100 OP ACTUAL ENTRY. 
 
 to the entry, within five years after the fine is levied, 
 such entry will be sufficient, (a) If, however, the 
 assent be not given within the five years, any sub- 
 sequent assent will not avail ; for the statute of fines, 
 being made for the purposes of repose and tran- 
 quillity, is always taken strictly, (b) 
 
 But a guardian by nurture, or in socage, may enter 
 in the name of his ward, without any command or as- 
 sent, and such entry shall save his right. So also the 
 remainder-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, (c) So likewise an 
 entry by a cestui que trust will be sufficient, (d ) 
 
 When one joint tenant, tenant in common, or par- 
 cener, enters generally into lands, it will be sufficient 
 to avoid the effect of a fine as to his companion, from 
 the principle before mentioned, that the possession of 
 one joint tenant, tenant in common, or parcener, is 
 the possession of his companion also, (e) 
 
 With respect to the mode of making the entry, it 
 must be upon the lands comprised in the fine ; for an 
 
 (a) Co. Litt. 245, (a). Fitchet v. (c) Podger's case, 9 Co. 106, 
 
 Adams, Stran. 1128. (a). 
 
 (6) Pollard v. Luttrell, Pop. 108. (d) Gree v. Rolle, 1 Lord Ray- 
 
 S. C. Moore, 450. Audley's case, mond, 7 16. 
 
 Moore, 45T. Podger's case, 9 Co. (e) Brook. Ab. Entre Con. 37. 
 
 106, (a). Audley v. Pollard, Cro. 1 Roll. Abr. 740. Doe d. Gill v. 
 
 Eliz - 561. Pearson, 6 East. 173.
 
 OP ACTUAL ENTRY. 101 
 
 entry into other lands,, claiming those comprised in 
 the fine, will not be sufficient, (a) 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 defend- 
 ant, 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 landy and not in the street, the claim was 
 holden good. (6) But if a person be prevented by 
 force or violence, from entering on the lauds 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, (c) 
 
 When all the lands lie in one county, the party 
 may enter into any part of them, making a declara- 
 tion in the name of the whole ; but if the lands lie in 
 different counties, there must be separate entries for 
 the several counties, (d) The entry must also be 
 made ammo clamandi, with an intention of claiming 
 the freehold against the fine ; (e) 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 premises 
 with intent to make the demise in the declaration 
 
 (a) Focus v. Salisbury, Hard. (c) Litt. s. 419. Co. Litt. 253, (6). 
 400. (d) Litt. s. 417. 
 
 (6) Anon. Skin. 412. (e) Clarke v. Phillips, 1 Vent. 42.
 
 102 OF ACTUAL ENTRY. 
 
 mentioned, but not for the purpose of avoiding the 
 fine, it was held that such entry was not sufficient, (a) 
 
 By the statute 4 Anne, c. 16. s. 15, 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 statute 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 therefore, if the 
 claimant fail in the ejectment brought in consequence 
 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 of possession, by the wrong-doer, who 
 levied the fine; for the fine being once avoided 
 shall be void for ever. (6) 
 
 It has been questioned whether an actual entry is 
 not necessary to prevent the operation of the statute 
 of limitations ; (c) but it seems quite clear from the 
 whole current of authorities, that no entry is neces- 
 sary if the action be commenced within the twenty 
 years. If, however, the twenty years be near ex- 
 
 (a) Berrington d. Dormer u.Park- 366. 
 
 hurst, And. 125. S. C. Stran. 1086. (c) Goodright d. Hare v. Cater, 
 
 S. C. Willes, 327. S. C. 13 East. 489. Doug. 477. 485, (n. !) 
 
 (6) Stovrell v. Zouch, Plowd. 353.
 
 OP ACTUAL ENTRY. 103 
 
 pi ring before an ejectment is brought, it will be pru- 
 dent to make an actual entry ; for it seems, that if an 
 actual entry be made before the expiration of the 
 twenty years, an ejectment may be brought at any 
 time within twelve months after the entry, although 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 twenty 
 years or after, he may, from the provisions of the 
 statute 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 en- 
 tirely barred of this remedy ; because the entry which 
 is confessed by the defendant in the first ejectment be- 
 ing 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.
 
 104 
 
 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 determination of tenancies, to recover the posses- 
 sion of their lands from refractory tenants ; and it 
 therefore properly belongs to this treatise, to inquire 
 into the several relations of landlord 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 happen- 
 ing of a particular event; secondly, by a notice from 
 the landlord to the tenant to deliver up the posses- 
 sion, 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 the non-performance 
 of a covenant.
 
 OF THE ACTION OF EJECTMENT, &C. 105 
 
 No comments are necessary upon the first of these 
 divisions ; it 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 immediately maintain an ejectment to recover 
 his possession, without giving any previous notice to 
 the tenant, (a) 
 
 The cases comprised in the second division must 
 be treated of more fully; and, to understand per- 
 fectly 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 com- 
 plete remedy when ousted of his possession. The 
 tenants, who during those times occupied lands with- 
 out any specific grant, held them by a far more pre- 
 carious tenure. A general occupation of lands, that is 
 to say, a holding of the lands of another without any 
 certain or determinable estate beinglimited therein, was 
 then considered as a holding at the will and pleasure 
 of the owner of the land ; and the tenant was liable 
 to be ejected, at any moment, by the simple determi- 
 nation of his landlord's will. But the same enlight- 
 ened policy, which secured to lessees for years the 
 complete possession of their terms, soon extended 
 itself also to those general holdings, then called 
 
 () Roe d. Jordan v. Ward, 1 II. Clk. 97.
 
 106 OP THE ACTION OP EJECTMENT 
 
 tenancies at will ; and in the reign of King Henry 
 VIII., (a) we find it holden by the Courts, that a gene- 
 ral occupation should be considered to be an occupa- 
 tion from year to year; and that a person so holding 
 should not be ejected from his lands, without a rea- 
 sonable notice from his landlord to relinquish the 
 possession. It was also at the same time settled, that 
 this reasonable 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 differenttime is established, either by express 
 agreement, or immemorial custom, (b) 
 
 A general occupation of land now therefore enures 
 as a tenancy from year to year, determinable, and 
 necessarily determinable, (c) by a notice to quit; 
 and a holding merely at the will of the landlord, ac- 
 cording to the ancient meaning of the term, is an 
 estate unknown in modern times, (d) unless when 
 created by express agreement between the parties, (e) 
 There is indeed an implied modern tenure denomi- 
 nated a tenancy at will, but it differs materially from 
 the old tenancy so called, and in truth is scarcely dis- 
 
 (a) 13 Hen. VIII. 15, (6). (d) Timmins v. Rawlinson, 3 
 
 (6) Parker d. Walker v. Constable, Burr. 16039. 
 
 3 Wils. 25. (e) Richardson v. Lengridge, 4 
 
 (c) Doe d. Warner v. Brown, 8 Taunt. 128. 
 East. 165.
 
 AS BETWEEN LANDLORD AND TENANT. 107 
 
 tinguishable 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 possession of the premises with the privity (a) 
 and consent of the owner, no express tenancy having 
 been created, and no act having been done by the 
 owner impliedly acknowledging such party as his 
 tenant. As where he has been let into possession 
 pending a treaty for a purchase or a lease, () or 
 under a lease or agreement for a lease which is void, (c) 
 or where having been tenant for a term which has 
 expired, he continues in possession negociating for a 
 new one. (d) 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 land- 
 lord 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 thereby, (e) 
 
 It is singular that we do not find in the old authori- 
 
 () Doe d. Knight v. Quigley, 2 nett, 2 Esp. 717. 
 
 Camp. 505. Right d. Lewis v. (d) Denn d. Brune v. Rawlins, U) 
 
 Beard, 13 East. 210. Hegan v. East. 261. Doe d. Foley v. Wilson, 
 
 Johnson, 2 Taunt. 148. Doe d. 11 East. 56. 
 
 Leeson v. Sayer, 3 Camp. 8. (e) Doe d. Rigge v. Bell, 5 T. R. 
 
 (6) Goodtitle d. Galloway v. Her- 47 1. Clayton v. lilakey, 8 T. R. 3. 
 
 bert, 4 T. R. 680. Doe d. Warner Thunder d. \\ eaver v. Belcher, 3 
 
 v. Browne, 8 East. 165. Doe d. East. 449,451. Doe d. Warner v. 
 
 Newby v. Jackson, 1 B. & C.448. Browne, 8 East. 165. 
 
 (c) Doe d. Hollingsworth v. Sten-
 
 108 OP THE ACTION OF EJECTMENT 
 
 ties, any decisions relative to notices to quit, although 
 the practice of giving them has been so long esta- 
 lished ; but during the last sixty years they have 
 become objects of considerable attention to our courts, 
 and there is now no difficulty in reducing their requi- 
 sites to a clear and satisfactory system. 
 
 In considering the uses and requisites of the notice 
 to quit, our first inquiry will be directed to those par- 
 ticular 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. 
 
 A mortgagee may maintain ejectment against a 
 mortgagor, after the forfeiture of the mortgage, 
 without any previous notice to quit, or demand 
 of possession ; (a) and the under lessees of the 
 mortgagor may also in like manner be ejected, 
 provided they have been let into possession by the 
 mortgagor, subsequent to the mortgage, and with- 
 out the privity of the mortgagee ; and it is imma- 
 terial whether they hold as tenants from year to year, 
 or by leases executed after the date of the mortgage. 
 But if a lease be granted by a mortgagor with the 
 concurrence of the mortgagee, or if a mortgagee, 
 with knowledge that the mortgagor has granted a 
 
 (tf) Doe d. Fisher . Giles, 5 Bing.421. S. C. 2. M. & P. 749.
 
 AS BETWEEN LANDLORD AND TENANT. 109 
 
 lease, encourage the tenant to lay out money upon 
 the premises, it may admit of doubt whether by such 
 conduct the mortgagee has not confirmed the lease, 
 or so far at least acknowledged the lessee as his 
 tenant, as to render a notice to quit necessary before 
 he can maintain ejectment against him. (a) With 
 respect to tenancies created prior to the mortgage, 
 the situation of the mortgagee is of course the same 
 as that of the mortgagor before the mortgage was 
 made. (5) 
 
 The assignees of the mortgagee haye also the like 
 privileges with regard to the mortgagor and his 
 under-tenants ; and the right of an assignee to main- 
 tain ejectment without a notice to quit, or demand of 
 possession, will not be taken away by a tenancy 
 created prior to the assignment, provided such te- 
 nancy commenced subsequently to the date of the 
 mortgage, and continued unacknowledged by the 
 mortgagee, (c) 
 
 The like principle prevails with respect to claim- 
 ants under writs of elegit ; if the judgment debtor be 
 himself in possession, or if the party in possession 
 has been admitted tenant subsequently to the date of 
 the judgment, (whether as a yearly tenant or under a 
 lease) the tenant by elegit may maintain ejectment 
 without a notice to quit, or demanding possession; 
 
 (a) Doe d. Sheppard v. Allen, 3 T. R. 378. Doe d. Sheppard v. 
 
 Taunt 78. Allen, 3 Taunt. 78. 
 
 (6) Warne d. Keech v. Hall, Doug. (c) Thunder d. Weaver v. Belcher, 
 
 21. Thunder d. Weaver v. Belcher, 3 East. 449. 
 3 East. 449. Birch v. Wright, 1
 
 110 OF THE ACTION OF EJECTMENT 
 
 but if the tenant claim under a lease, or tenancy from 
 year to year, prior in point of time to the judgment, 
 the claimant will be barred in the last case until he 
 has determined the tenancy by a regular notice to 
 quit; in the first, until the determination of the lease, (a) 
 
 When a party has obtained possession of premises 
 belonging to another, and the owner does any act 
 from which a jury may infer that he intends to ac- 
 knowledge him as his tenant, a tenancy from year to 
 year is created by such act, and the party will be 
 entitled to a regular notice to quit before he can be 
 ejected. Thus, if a landlord suffer his tenant to con- 
 tinue in possession after the expiration of his lease, 
 and receive rent from him accruing subsequently to 
 the period of such expiration, he becomes thereby 
 his tenant from year to year upon the conditions of 
 the original lease. () So also, if a tenant for life make 
 a lease, void against the remainder-man, and the lessee 
 enter, and then the tenant for life die, if the remain- 
 der-man receive rent from such lessee, accruing sub- 
 sequently to the death of the tenant for life, such 
 receipt of rent, although it will not amount to a 
 confirmation of the lease, will be sufficient (unless 
 from the inadequacy of the rent to the value of 
 the premises, the jury should presume otherwise) (c) 
 to establish a tenancy from year to year, upon the 
 terms of it, between the remainder-man and the 
 lessee : and it will be no answer for the remainder- 
 
 (a) Doe d. Da Costa v. Wharton, 100. 
 
 8T. R. 2. Doe d. Putland v. Hilder, (c) Doe d. Brune v. Prideaux, 10 
 
 2 B. & A. 782. East 158. Derm d. Brune v. Kaw- 
 
 (6) Bishop v. Howard, 2 B. & C. lins, 10 East. 261.
 
 AS BETWEEN LANDLORD AND TENANT. Ill 
 
 man, that he was ignorant of his title when he 
 received the rent, for it is more reasonable that the 
 remainder-man, who ought to have looked into his 
 title, should be bound by his own act, than that the 
 lessee should be prejudiced by his ignorance, (a) In 
 like manner, when a party is let into possession 
 under a lease void by the statute of frauds, (6) pay- 
 ment and receipt of rent will not establish the lease, 
 but it will create a tenancy from year to year, regu- 
 lated by its covenants and conditions, (c) The same 
 principle also holds if the party come into possession 
 under an agreement or lease, invalid from any other 
 circumstance: as where the party held under an 
 agreement that the lessee should pay a certain rent, 
 and that the lessor should not turn out the lessee 
 so long as the rent was duly paid quarterly, and the 
 lessee did not expose to sale or sell any article 
 that might be injurious to the lessor in his business, 
 which agreement was invalid, inasmuch as it would 
 (if the tenant complied with the terms thereof) operate 
 as an estate for life, which cannot be created by 
 such an instrument, yet the lessee having been let 
 into possession, and rent having been paid and 
 received, a tenancy from year to year was created 
 thereby. (cT) 
 
 The same rule prevails when a party is let into pos- 
 session under a valid agreement for a future lease. 
 As no interest in the land passes under such an agree- 
 
 (a) Roe d. Jordan v. Ward, 1 H. (c) Doe d. Rigge v. Bell, 5 T. R. 
 
 Black. 97. Doe d. Martin v. Watts, 471. Clayton v. Blakey, 8 T. R. 3. 
 
 7 T. R. 83. (d) Doe d. Warner v. Browne, 8 
 
 (&) 29 Car. II. c. 3. East. 165.
 
 112 
 
 OP THE ACTION OF EJECTMENT 
 
 ment, no tenancy is created thereby ; but the party 
 being let into possession, and rent being paid and re- 
 ceived, he becomes, as in the cases already mentioned, 
 a tenant from year to year, (a) 
 
 But where a party enters under an agreement of 
 this nature and continues in possession for the period 
 for which the lease was to be granted, his tenancy 
 ceases at the expiration of that period without any 
 notice to quit, as it would have done if a lease had 
 been executed, (b) , 
 
 (a) The unsettled state of the 
 principles and uses of the action of 
 ejectment in the time of Lord Mans- 
 field, is well illustrated by the deci- 
 sions in the cases of Weakly d. Yea 
 v. Bucknell, Cowp. 473. (Mich. 
 Term, 17 Geo. III.) and Goodtitle 
 d. Estwick v. Way, 1 T. R. 735. 
 (Easter Term, 27 Geo. III.) In the 
 former case, an agreement for a lease 
 was held to be tantamount to a 
 lease ; and the party making the 
 agreement was estopped from main- 
 taining an ejectment against the 
 other party, although he had given 
 him a regular notice to quit, because 
 " if the Court were to say the eject- 
 ment ought to prevail, it would be 
 merely for the sake of giving the Court 
 of Chancery an opportunity to undo 
 all again." In the latter case a 
 similar agreement was held to form 
 no defence to an ejectment,brought 
 by a party to whom the party 
 making the agreement had grant- 
 ed a term in the premises to sa- 
 tisfy creditors, subsequently s to 
 the date of the agreement, al- 
 though no notice to quit had 
 
 been given, and the party had 
 paid rent under the agreement ; 
 because the conveyance being made 
 by the lessor to a trustee for the 
 benefit of creditors " was not a mere 
 voluntary conveyance" and therefore 
 the lessor could not be considered 
 as a trustee for the defendant, and 
 as such restrained " from bringing 
 ejectment against his OWICESTUI QUE 
 TRUST ;" and the agreement for the 
 lease " gave the defendant only an 
 equitable title, which cannot be set up 
 in a court of law against the plaintiff' 
 who luts a legal title." Upon the 
 sound principles by which the ac- 
 tion is now regulated, it is evident 
 that these two decisions should 
 have been reversed. In both cases 
 the agreement for the lease, and 
 the receiptof rentunderit would have 
 been held to create tenancies from 
 year to year, which would have 
 been determined in the first case 
 by the notice to quit, and would 
 have continued in the latter, for 
 want of such notice. 
 
 (6) Doed.Tiltv. Stratton, 4 Bing. 
 446.
 
 AS BETWEEN LANDLORD AND TENANT. 113 
 
 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 con- 
 sider the points which have arisen in cases of this 
 description. 
 
 Formerly, when an agreement contained words of 
 present demise, it was held to amount to an absolute 
 lease, although covenants were added prospective of 
 some further act to be done, such covenants being 
 construed to be merely in further assurance. As 
 where, before the statute of frauds, a party said, 
 u You shall have a lease of my lands in D. for 
 twenty-one years, paying therefore 10*. per annum, 
 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. () 
 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 cove- 
 nant " 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 leas- 
 ing are made use of, yet if upon the whole there 
 appears no such intent, but that the instrument is 
 
 (a) Maldon's case, Cro. Eliz. 33. (6) Harrington r. Wise,Cro. Eliz. 
 
 486. Noy. 57.
 
 114 OF THE ACTION OF EJECTMENT 
 
 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 con- 
 struing a present lease, when the intent was mani- 
 festly otherwise." (a) Thus, where articles were 
 drawn up as follows, " A. doth 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 memo- 
 randum 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, (b) 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 intention 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 imme- 
 diate possession till a lease could be drawn, (c) So 
 also where an instrument was executed upon an 
 agreement-stamp in November, setting forth the con- 
 ditions of letting a farm, and the regulations to be 
 observed by the tenant, that the term would be from 
 year to year, and the premises to be entered upon in 
 February, and that " a lease was to be made upon 
 
 (a) Bac. Ab. tit. Leases 164. (c) Goodtitle d. Estwick v. Way, 
 
 Baxter d. Abrahall v. Browne, 2 1 T. R. 735. Phillips v. Hartley, 
 
 Black. 9734. 3 C. & P. 121. 
 
 (6) Sturgion v. Painter, Noy. 128.
 
 AS BETWEEN LANDLORD AND TENANT. 1 15 
 
 those conditions with all usual covenants," at the 
 foot of which the defendant wrote, " I agree to take 
 Lot 1. (the premises in question) at the rent of, $c. 
 subject to the covenants;" such instrument was 
 held to be an agreement for a lease, and not a present 
 demise, there being not only a stipulation for a future 
 lease, but time given to prepare it before the com- 
 mencement of the term, and no present occupation as 
 tenant contracted for. (a) So also, where upon an 
 agreement stamp, A. agreed to demise and let certain 
 copyhold premises for a certain term at a certain rent, 
 and further undertook to procure a licence to let 
 such premises, the court held, that the instrument was 
 an executory agreement 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 licence 
 to lease should be procured from the lord ; and, se- 
 condly, because the stamp was conformable to the 
 nature of an agreement for a lease, and not adapted 
 to an absolute lease, (b) So also where the words 
 were u 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 " shall hold and enjoy" 
 would have operated as words of present demise, if 
 they had not been controlled by those which fol- 
 lowed, (c) So also where the words were, u agreed 
 this day to let my house to B. for a certain term, " a 
 
 (a) Tempest v. Rawlins, 13 East. 739. 
 
 18. (c) Roe d. Jackson v. Ashburner, 
 
 (6) Doe d. Coore . Clare, 2 T. R. 5 T. R. 163.
 
 110 OP THE ACTION OF EJECTMENT 
 
 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, (a) So also where the agreement 
 was " memorandum of an agreement between A. and 
 JB.y A. agrees to let on lease, with purchasing clause 
 for the term of twenty-one years, all that house, &c. 
 entering on the premises at any time. on or before the 
 llth of February, at the net clear rent of 83 per 
 year, and to keep all premises in as good repair as 
 when taken to, the rent payable quarterly," it was 
 held to be only an agreement preparatory to a de- 
 mise, and not an actual demise; Abbott, C. J. ob- 
 serving, that it had not any one of the forms of a 
 lease ; that it began, " memorandum of an agree- 
 ment, A. agrees to let on lease, (which obviously 
 meant to execute a lease ;) that it was impossible to 
 infer when the tenancy was to commence, or the 
 rent to become due ; and that the whole was left in 
 doubt. () And in a case where, in an instrument 
 which contained words of present demise, there was 
 no direct reference to any future lease, but it ap- 
 peared, upon taking the whole instrument together, 
 that a future lease was intended, the same rule of 
 construction prevailed. In this latter case the agree- 
 ment was " A. agrees to let to B. all his farm, &c. 
 (except three pieces of land) to hold for twenty-one 
 years, determinate at the end of the first fourteen, 
 at the yearly rent of 261. payable, &c. and at and 
 under all other usual and customary covenants and 
 
 (a) Doe d. Bromfield v. Smith, (6) Dunk v. Hunter, 5 B. & A. 
 6 East. 530. 322.
 
 AS BETWEEN LANDLORD AND TENANT. H7 
 
 agreements, as between landlord and tenant where 
 the premises were situate : A. to allow a proportion- 
 ate 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 rea- 
 sons : because " at the yearly rent, &c. w and u at and 
 under all usual covenants, &c." is not the language in 
 which a lawyer would introduce into a lease the tech- 
 nical covenant for further assurance, but contemplates 
 the 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 terms 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, (a) But where an instrument, upon an 
 agreement stamp, was as follows, u 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 l'2Ql. ; 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 2000/. in build- 
 ing 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 execute a counterpart or counterparts 
 thereof: this agreement to be considered binding 
 till one fully prepared can be produced ;" the court 
 held the same to be a lease, considering it to be the 
 intention of the parties, that the tenant, who was to 
 
 () Morgan d. Dowding v. Bi&sell, 3 Taunt. 65.
 
 J 18 OF THE ACTION OF EJECTMENT 
 
 expend so much capital upon the premises 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 under- 
 letting or assigning, might be executed, (a) So also 
 where the instrument was " A. agrees to let, and also 
 upon demand to execute, to B. a lease of certain 
 lands, and B. agrees to take, and upon demand to 
 execute, a counterpart of a lease of the said 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. (6) And in the last 
 case upon the subject where the instrument was in 
 the following form, " memorandum of agreement made 
 on, &c. between A. and B., the said A. for the consi- 
 derations hereinafter mentioned, agrees to grant 
 seal and execute unto B. a legal and effectual lease 
 of all that messuage, &c. to hold the same unto B. 
 his executors, &c. from 8cc. for the term of five years 
 at and under the yearly rent of, &c. to be made pay- 
 able quarterly, and under and subject to covenants 
 by and on the part of B. to pay the rent, and all 
 taxes, to keep the premises in repair, to paint the 
 outside every third year of the term, (and certain 
 other covenants which need not be enumerated,) 
 
 (a) Poole v. Bentley, 12 East. (b) Doe d. Walker v. Groves, 15 
 168. East. 2-44.
 
 AS BETWEEN LANDLORD AMD TENANT. 119 
 
 and the said B. agreed to accept and take a lease 
 upon the terms aforesaid, and in the mean time, and 
 until such lease shall be made and executed, to pay 
 the rent as aforesaid, and to hold the premises sub- 
 ject to the covenants above mentioned: and the 
 said B. further agreed to put the premises into good 
 and tenantable repair at his own expense, and to 
 complete all such repairs forthwith, with power of 
 re-entry for non-payment of rent or non-performance 
 of covenants before the lease should be made and 
 executed." The Court held that this instrument 
 amounted to a present demise ; observing, that 
 although there were conflicting expressions, it clearly 
 was the paramount intention of the parties that the 
 instrument should operate as a lease; for that the 
 defendant was to hold according to covenants, some 
 of which were inconsistent with a tenancy from year 
 to year, as that to paint once in three years, and that 
 for putting the premises in repair before he com- 
 menced his occupation ; and that there could be no 
 doubt it was meant that there should be a formal 
 lease, but that the tenant should hold in the mean 
 time under a demise, upon the same terms as if that 
 lease had been executed, (a) 
 
 But to return to the subject of implied tenancies 
 from year to year. In all the cases already men- 
 tioned, 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 
 
 (a) 1'inero u. Judson, (j Biiig. '206.
 
 OF THE ACTION OF EJECTMENT 
 
 from other circumstances. Thus, where lands de- 
 scended to an infant, with respect to whom the te- 
 nant in possession was a trespasser, and an ejectment 
 was brought on the demise of the infant, and compro- 
 mised 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 ejectment being brought by the in- 
 fant, when he attained his full age, that although the 
 infant was no party to the agreement, nor had con- 
 firmed it, nor received rent since he came of age, yet 
 that such agreement, having been entered into, with- 
 out fraud or collusion, after an ejectment brought 
 at his suit, had, by his acquiescence therein, esta- 
 blished the defendant's title as against himself, and 
 created a new tenancy, which could only be deter- 
 mined by a notice to quit, (a) So also where ^.feme- 
 covert lived many years separated 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, (b) 
 
 It has also been held in a recent case, that where 
 a rector had suffered persons, who were in possession 
 as tenants prior to his incumbency, to continue in 
 quiet and undisturbed possession for eight months 
 after his institution, he must be presumed to have 
 assented to the continuance of their tenancy under the 
 
 (a) Doe d. Miller v. Noden, 2 (6) Doe d. Leicester, v. Biggs, 1 
 Esp. 528. Taunt. 367.
 
 AS BETWEEN LANDLORD AND TENANT. 121 
 
 terms of their previous holding, and therefore unable 
 to eject them without a notice to quit, (a) 
 
 This is the only case in whicb a mere permission 
 by the owner to occupy premises, without some 
 positive act of acknowledgment, has been held suffi- 
 cient to create a tenancy requiring a regular notice to 
 quit, but the principle seems applicable to all cases 
 where the occupant has been tenant to a previous 
 owner, and his tenancy has expired on the determi- 
 nation of his landlord's estate. 
 
 But where a party has put another into possession 
 with a view to a future tenancy or purchase, or under 
 circumstances of a similar nature, although he may 
 have done no act acknowledging a regular tenancy, 
 he cannot afterwards eject him without a demand of 
 possession, unless some wrongful act has been done 
 by such party determining his lawful possession. 
 
 Thus, where a party was let into possession, under 
 an agreement for the purchase of the land, and had 
 possession formally given to him, and paid part of 
 the purchase-money, and there was no default on his 
 part, (6) a demand of possession was held necessary, (c) 
 So likewise where it was agreed that A. should sell 
 to B. certain premises if it turned out that he had a 
 title to them, and that B. should have immediate pos- 
 session, A. was not permitted to maintain ejectment 
 
 (a) Doe d. Gates v. Somerville, M. & S. 14850. 
 
 6 B. & C. 136. Doe d. Kerby v. (<) Right d. Lewis v. Beard, 13 
 
 Carter, 1 R. & M. 237. East. 2 10. 
 
 (6) Doe d. Parker v. Boulton, 6
 
 122 OP THE ACTION OF EJECTMENT 
 
 against B. without a demand of possession, although 
 the object of the action was to try the title to the 
 premises, (a) So likewise where a tenant, whose 
 lease had expired, continued in possession, pending 
 a treaty for a further lease, although no tenancy from 
 year to year was created by such possession and ne- 
 gociation, the landlord was thereby precluded from re- 
 covering in ejectment, upon a demise anterior to the 
 termination of the treaty. (#) So also when a party 
 is admitted into possession under an invalid lease or 
 agreement, the landlord must demand possession, or 
 in some other manner determine the will, before he 
 can maintain ejectment, although he has not acknow- 
 ledged the party as his tenant, (c) 
 
 But 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 ; and the purchaser failed to complete the 
 purchase at the appointed day ; it was ruled that an 
 ejectment might be maintained without even a de- 
 mand of possession, the purchaser having by his own 
 
 (a) Doe d. Newby v. Jackson, 1 Blakey, 8 T. R. 3. Thunder d. 
 B. & C. 448. Weaver v. Belcher, 3 East. 449. 
 
 (b) Doe d. Hollingsworth, v. 451. Doe d. Warner v. Browne, 
 Stennet, <i Esp. 716. 8 East. 165. Hegan v. Johnson, 
 
 (c) Goodtitle d. Herbert v. Gal- 2 Taunt. 148. 
 loway, 4 T. R. 680. Clayton v.
 
 AS BETWEEN LANDLORD AND TENANT. 123 
 
 act determined his interest in the premises, (a) And 
 where a man, having obtained possession of a house 
 without the landlord's privity, afterwards entered 
 into a negotiation with him for a lease, which failed, 
 the same rule of construction seems to have pre- 
 vailed, (b) So also where upon an agreement for 
 a sale to be completed by a certain day, the intended 
 purchaser agreed with A. to let the premises to him 
 to commence from that day, and A . was let into pos- 
 session prior to that day by the permission of the 
 intended seller, and the party failed to complete his 
 purchase, A. was held not entitled to a demand of 
 possession before ejectment brought, his possession 
 being only the possession of that party by anticipa- 
 tion, (c) 
 
 As the implied tenancies from year to year, which 
 have here been 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 show their real mean- 
 ing. Thus, where a remainder-man, on the death 
 of the tenant for life, gave notice to the tenant in 
 possession under a lease, granted by the tenant for 
 life, but void against the remainder-man, to quit at 
 the end of six months, and subsequently to the giving 
 of the notice, but before its expiration, received a 
 quarter's rent, accruing after the death of the tenant 
 for life, it was ruled by Blackstone, J. that the pre- 
 vious notice to quit rebutted the presumption of a 
 
 (a) Doe d. Leeson v. Sayer, 3 Camp. 505. 
 
 Camp. 8. Doe d. Moore v. Law- (r) Doe d. Parker v. Boulton, 6 
 
 der, 1 Stark. SOS. M. & S. 148. 
 
 (6) Doe tl. Knight v. Quigley, 2
 
 124 OF THE ACTION OF EJECTMENT 
 
 tenancy from year to year, raised by the acceptance 
 of the rent, (a) So also where the rent is not paid, 
 and received, as between landlord and tenant, but 
 upon some other consideration, no tenancy from 
 year to year will be created. The payment of a 
 customary rent for copyhold premises, has been held 
 to be a payment of this nature ; and, if the tenant 
 hold such premises by a title or tenure, which is not 
 supported by the custom of the manor, the receipt 
 of the quit-rent from him by the lord will not create 
 a tenancy from year to year. (6) 
 
 Upon the same principle, where a tenant in-tail 
 received an ancient rent, which was but trifling when 
 compared with the real value of the premises, and 
 which had been reserved under a void lease granted 
 by the tenant for life under a power, upon a special 
 case reserved for the opinion of the Court of King's 
 Bench, they intimated that a jury should be strongly 
 advised not to imply a tenancy from year to year 
 from such payment and receipt, (c) although it would 
 amount to such an acknowledgment of a tenancy 
 at will, as would require a demand of possession be- 
 fore ejectment could be maintained, (d) 
 
 If the tenant set his landlord at defiance, and do 
 any act disclaiming to hold of him as tenant, as, for 
 instance, if he attorn to some other person, no notice 
 
 (a) Sykes d. Murgatoyd v. , (c) Roe d. Brune v. Prideaux, 10 
 
 cited in Right d. Fowler v. Darby, East. 158. 
 
 1 T. R. 161. (d) Denn d. Brune v. Rawlins, 
 
 (/') Right d. Dean of Wells v. 10 East. 261. 
 Bawden, 3 East. 260.
 
 AS BETWEEN LANDLORD AND TENANT. 125 
 
 to quit will be necessary ; for, in such case, the land- 
 lord may treat him as a trespasser, (a) It has, how- 
 ever been held that a refusal to pay rent to a devisee 
 under a contested will, accompanied with a declara- 
 tion that he (the tenant) was ready to pay the rent 
 to any person who was entitled to receive it, was not 
 a disavowal sufficient to dispense with the necessity 
 of a regular notice. (6) 
 
 When a tenant from year to year dies, his interest 
 in the lands vests in his personal representative, who 
 will continue to hold the premises upon the same 
 terms as the original tenant, and be entitled to the 
 same notice to quit, (c) If, however, by the terms 
 of the agreement, no interest vests in the representa- 
 tive, no notice to quit will be necessary. Thus where 
 A. agreed to demise a house to B., during the joint 
 lives of A. and B., and B. entered in pursuance of 
 the agreement, and before any lease was executed, 
 died, after which ^B.'s executor took possession of the 
 house ; it was held that A. might maintain ejectment 
 against the executor without notice to quit, because 
 the death of B. determined his interest, and con- 
 sequently no interest vested in the executor. The 
 court were also of opinion that the case would have 
 been the same if the lease had been executed. (cT) 
 
 In like manner the situation of a tenant from year 
 
 (a) B. N. P. 96. (c) Doe d. Shore v. Porter, 3 
 
 (6) Doe d. Williams v. Pasquali, T. R. 13. Parker d. Walker v. 
 
 Peake's R. 196. Vide Doe d. Cal- Constable, 3 Wils. 25. 
 
 vert v. Frowd, 4 Bing. 557. S. C. (rf) Doe d. Bromfield v. Smith, 6 
 
 1 M. & P. 480. East. 530.
 
 126 OF THE ACTION OF EJECTMENT 
 
 to year remains unaltered, notwithstanding the death 
 of the landlord, and he will be entitled to his regular 
 notice to quit, whether the lands descend to the heir 
 (although such heir be a minor,) (a) or pass to the 
 personal representative, or devisee, of the deceased. 
 
 We are next to consider the persons by whom, 
 and to whom, the notice to quit is to be given. 
 
 The notice to quit must be given by the person in- 
 terested in the premises, or his authorized agent ; and 
 such agent must be clothed with his power to give 
 the notice, at the time when the notice is given; a 
 subsequent assent on the part of the landlord being 
 not sufficient to establish by relation a notice, given 
 in the first instance without his authority. And this 
 principle is founded in reason and good sense, for as 
 the tenant is to act upon the notice at the time it is 
 given to him, it ought to be such an one as he may 
 act upon with security ; and if an authority by re- 
 lation were sufficient, the situation of the tenant must 
 remain doubtful, until the ratification or disavowal of 
 the principal, and he would thereby sustain a mani- 
 fest injustice, (b) 
 
 (a) Maddon d. Baker v. White, 2 authority to give a notice to quit at 
 
 T. R. 159. the time of giving the notice, in 
 
 (6) Right d. Fisher v. Cuthell, order to render it valid. The 
 
 5 East. 491. Notwithstanding the facts of that case were shortly as 
 
 printed report of the case of Good- follows: A. B. C. and D. were 
 
 title d. King v. Woodward, 3 B. & joint tenants ; E. gave the tenant 
 
 A. 689, I have not altered the in possession a written notice to 
 
 principle laid down in the for- quit, purporting to be given as the 
 
 mer edition of this work : viz, agent and on the part of all the 
 
 that an agent must be clothed with joint tenants ; and at the time of
 
 AS BETWEEN LANDLORD AND TENANT. 
 
 127 
 
 When also two or more persons are interested in 
 the premises, a notice to quit given by one, on behalf 
 of himself and co-tenants, will be valid only as far as 
 his own share is concerned, (a) unless he was acting at 
 
 giving such notice E. had a written 
 authority so to do from A. and B., 
 which authority was subsequently 
 signed by C. and D. According 
 to a note taken by myself of the 
 judgment of the Court, the princi- 
 ple upon which the notice was 
 held sufficient was, "that a no- 
 tice to quit given by one joint 
 tenant was binding upon all, be- 
 cause otherwise the lessee would 
 become a joint tenant with the 
 party giving him notice, by which 
 he would be subject to great in- 
 convenience, and the estate of the 
 co-joint tenants would be pre- 
 judiced; and, therefore, the notice 
 must be taken to be an act bene- 
 ficial to the estate, and conse- 
 quently binding upon all the joint 
 tenants;" and not as stated in the 
 printed report; that " a notice given 
 by an agent is sufficient, if his au- 
 thority be subsequently recognized." 
 The report is also I believe incorrect 
 in stating, " that to entitle joint 
 tenants to recover in ejectment 
 against a tenant from year to year, 
 the notice to quit must be signed 
 by all the joint tenants at the time it 
 is received ;" the reverse of this pro- 
 position was according to my note 
 maintained, viz. " that a notice 
 signed by one joint tenantwas bind- 
 ingupon all," and indeed such must 
 have been the decision if I have 
 taken a correct view of the princi- 
 
 ple of the judgment. Without in- 
 quiring into the soundness of that 
 principle, or whether it would not 
 have been wiser to have placed joint 
 tenants, parceners, and tenants in 
 common, on the same footing with 
 respect to notices to quit, there can 
 he no doubt it is the only principle 
 upon which that judgment can be 
 supported with good faith to the te- 
 nant; because if after the delivery 
 of the notice an option remained to 
 the parties who had not then signed 
 the authority to confirm or disallow 
 it, (as assumed in the printed re- 
 port), the tenant had not " such a 
 notice as he could act upon with 
 certainty at the time it was given," 
 to which all the authorities say he 
 is entitled ; but such certainty com- 
 menced only from the time of the 
 recognition of the authority of the 
 agent by those parties, which might 
 have been only the day before the no- 
 tice expired. And as an option to re- 
 cognize includes of necessity a right 
 to disallow, how can a tenant pos- 
 sibly regulate his conduct as to the 
 management of his farm, &c. if it 
 may be doubtful until the very day 
 on which his notice expires, whe- 
 ther he will be permitted to go, or 
 compelled to stay ? 
 
 (a) Doe d. Whayman v. Chaplin, 
 3 Taunt. 120. Doe d. Green . 
 Baker, 8 Taunt. 241.
 
 128 OF THE ACTION OF EJECTMENT 
 
 the time under the authority of the other parties men- 
 tioned in the notice. But this rule it seems does not 
 hold when the parties are interested as joint tenants ; 
 because of the rule of law, that every act of one joint 
 tenant, which is for the benefit of his co-joint tenant, 
 shall bind him, and it must be predicated that the 
 determination of the tenancy by such notice is for the 
 benefit of the estate, (a) And where several tenants in 
 common are interested, as many of them as give 
 notices may recover their respective shares, (6) al- 
 though the others do not join, unless indeed by the 
 conditions of the tenancy, it is rendered necessary 
 for all the parties to concur in the notice, in which 
 case a notice given by some of the parties, without 
 the junction or authority of their companions, will be 
 altogether invalid (a) 
 
 Where A. and B., two tenants in common, had 
 agreed to divide their estate, and that Blackacre 
 should belong to A. ; and the occupier of Blackacre 
 afterwards, and with knowledge of this agreement, 
 paid his whole rent to A., and afterwards received 
 from him a notice to quit, such notice was held suffici- 
 ent for both moieties, although the deed of partition 
 was not signed, because the tenant by payment of 
 rent to B. for the whole premises, had estopped 
 himself from disputing his title to them, (c) 
 
 The steward of a corporation may give a notice to 
 
 (a) Right tf. Fisher v. Cuthell, 5 ker,8Taunt. 241. 
 
 East. 491. Ante. p. 126. note (i). (c) Doe d. Pritchett v. Mitchell, 1 
 
 (6) Doe d. Whayman v . Chaplin, B. & B. 11. S.C. 3 B. Moore, 229. 
 3 Taunt. 120. Doe d. Green v. Ba-
 
 AS BETWEEN LANDLORD AND TENANT. 129 
 
 quit, without a power under the corporation seal for 
 so doing ; and if the corporation afterwards bring an 
 ejectment upon such notice, it will not be necessary 
 to give any other evidence of his authority, than that 
 he is steward ; for the corporation by bringing the 
 ejectment show that they authorized and adopt the 
 act of their officer, (a) 
 
 A receiver appointed by the Court of Chancery, 
 with a power to let the lands, is an agent sufficiently 
 authorized to give a notice to quit ; for if he have an 
 authority to let, he must be taken to have a power of 
 determining the letting, as he must determine for how 
 long he will let. (b) 
 
 Where a lease contained a proviso, that if either of 
 the parties should be desirous to determine it in seven 
 or fourteen years, it should be lawful for either of 
 them, his executors, or administrators, so to do upon 
 twelve months' notice to the other of them, his heirs, 
 executors, or administrators, it was considered that 
 the words executors, or administrators, were put for 
 representatives in general, and that a notice might 
 be given by an assignee of either party, or by the 
 heir, or devisee, as well as by the parties themselves, 
 their executors, or administrators ; because, other- 
 wise, in case of an assignment, or devise, the right of 
 determining the term would be taken from the per- 
 sons interested in it, and given to a mere stranger, 
 
 (a) Roe d. Dean of Rochester v. 2694. Doe d. Marsack v. Read, 
 Pierce, 2 Campb. 96. 12 East. 57. 61. 
 
 (6) Wilkinson v. Colley, Burr.
 
 130 OP THE ACTION OF EJECTMENT 
 
 having no interest therein, (a) But, where the de- 
 mise was for twenty-one years, if both parties should 
 so long live, but if either should die before the end of 
 the term, then the heirs and executors, &c. of the 
 party so dying, might determine the lease by giving 
 twelve months' notice to quit, it was holden, that this 
 power extended only to the representative of the party 
 dying, and that the lease could not be determined by 
 a notice to quit given by the lessor, after the lessee's 
 death, to his representative. (6) 
 
 When the relation of landlord and tenant subsists, 
 difficulties can seldom occur as to the party upon 
 whom the notice should be served. The service 
 should invariably be upon the tenant of the party 
 serving the notice, notwithstanding a part, or even 
 the whole of the premises, may have been under-let 
 by him. And in a case where the service was upon 
 a relation of the under-tenant upon the premises, 
 Lord Ellenborough, C. J. ruled the service to be in- 
 sufficient, although the notice was addressed to the 
 original tenant, (c) The original tenant is also liable 
 to an ejectment, at the expiration of the notice, for 
 the lands in the possession of his under-tenants, al- 
 though he may, on his part, have given proper no- 
 tices to them, and delivered up such parts of the 
 premises as were under his own controul. (d) 
 
 (a) Roe d. Bamford v. Hayley, T. 1811. M. S. 
 12 East. 464. (d) Roe v. Wiggs, 2 N. R. 330. 
 
 (ft) Leggd. Scott i;.Benion,Willes, Pleasant d. Hayton v. Benson, 14 
 
 44. East. 234. 
 
 (c) Doe d. Mitchell v. Levi, M.
 
 AS BETWEEN LANDLORD AND TENANT. 131 
 
 Where a tenant from year to year had under-let 
 part of the premises, and then gave up to his land- 
 lord the part remaining in his own possession, not 
 having received from him a notice to quit, or sur- 
 rendering such part in the name of the whole, it was 
 held that a notice to quit, from the original landlord 
 to the sub-lessee, for the part so under-let, was irre- 
 gular ; and that the sub-lessee could not be ejected 
 without a regular notice from his immediate land- 
 lord. And it seems that if the tenant had surrendered 
 such part in the name of the whole, it would not have 
 varied the case, because the surrender of the lessee 
 would not destroy any interest, which a stranger 
 claiming under him had acquired in the term before 
 such surrender. 
 
 When the premises are in the possession of two 
 or more, as joint tenants, or tenants in common, a 
 written notice to quit, addressed to all, and served 
 upon one only, will be a good notice ; (a) so also a 
 parol notice, given to one co-tenant only, will bind 
 his fellow, (b) 
 
 When a corporation aggregate is the tenant, the 
 notice should be addressed to the corporation, and 
 served upon its officers, and a notice addressed to the 
 officers will not be sufficient, (c) 
 
 With respect to the mode of serving the notice, it 
 is in all cases advisable if possible to deliver it 
 
 (a) Doe d. Lord Bradford v. Crick, 5 Esp. 196. 
 Watkins, 7 East. 551. (c) Doerf. Lord Carlisle v. Wood- 
 
 (fc) Doe d. Lord Macartney v. man, 8 East. 228.
 
 13*2 OF THE ACTION OF EJECTMENT 
 
 to the tenant personally; but if personal service 
 cannot be effected, the service will be sufficient if the 
 notice be left with the wife or servant of the tenant at 
 his usual place of residence, whether upon the de- 
 raised premises, or elsewhere, and its nature and 
 contents explained at the time, (a) But a mere 
 leaving of the notice at the tenant's house, without 
 proof that it was delivered to some member of the 
 household, will not be a sufficient service. (6) 
 
 Next of the form of the notice, (c) 
 
 When the landlord intends to enforce his claim to 
 double value if the tenant holds over,(W) 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 the parties, (e) It is however 
 nevertheless the general practice to give written no- 
 tices; 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 
 
 (a) Jones d. Griffith v. Marsh, 4 (d) 4 G. II. c. 28, s. 1. 
 
 T.R. 464. Doe d. Lord Bradford (e) Legg d. Scott v. Benion, 
 
 v. Watkins, 7 East. 553. Doe d. Willes, 43. Timmins v. Rowlison, 
 
 Neville v. Dunbar, 1 M. & M. 10. 1 Blk. 533. Doe d. Lord Macart- 
 
 (6) Doe d. Buross v. Lucas, 5 ney v. Crick, 5 Esp. 196. Roe d. 
 
 Esp. 153. Dean of Rochester v- Pierce, 2 
 
 (c) Appendix, Nos. 1, 2, 3. Camp. 96.
 
 AS BETWEEN LANDLORD AND TENANT. 133 
 
 rendered unnecessary, (a) 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 suffi- 
 cient. () 
 
 A subscribing witness to a notice to quit is unne- 
 cessary ; and it is prudent not to have one, as it 
 may occasion difficulties in the proof of the service, 
 and cannot be of the slightest advantage to the land- 
 lord, (c) 
 
 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 concerned. 
 
 The notice, however, will not be invalid, unless it 
 contain a real and bond fide option, and not merely 
 an apparent 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 eject- 
 ment upon, notwithstanding an apparent alternative. 
 Thus the words, " I desire you to quit the possession 
 
 (a) Doee/. Matthewsonu. Wright- (r) Doe d. Sykes . Duratord, 
 man, 4 Esp. 5. M. & S. 62. 
 
 (b) Doe v. Spiller, 6 Esp. 70.
 
 134 OF THE ACTION OF EJECTMENT 
 
 at Lady-day next of the premises, &c. in your posses- 
 sion, or / shall insist upon double rent" have been 
 held to contain no alternative ; because the landlord 
 did not mean to offer a new bargain thereby, but only 
 added the latter words as an emphatical way of en- 
 forcing the notice, and showing 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, notwithstanding 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 al- 
 ternative one. (a) 
 
 Where the notice was to quit u on the 25th day of 
 March, or 6th day of April next ensuing," (b) and 
 was delivered before new Michaelmas-day,^ it was 
 held to be a good notice ; as being intended to meet 
 an holding commencing either at new, or old Lady- 
 day, and not to give an alternative, (c) 
 
 Upon the same principle, the court will not in- 
 validate 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 
 
 (a) Doe d. Matthews v. Jackson, in the case, cannot be correct. 
 
 Doug. 175. See also Doe d. Spicer v. Lea, 11 
 
 (6) In the printed report, this East. 312. 
 
 date is stated to be the eighth day (c; Doe d. Matthewson v. Wright- 
 
 of April, which, from the reasoning man, 4 Esp. 5.
 
 AS BETWEEN LANDLORD AND TENANT. 135 
 
 been rejected. The notice was given at Michaelmas, 
 1795, to quit at Lady-day which will be in 1795, and 
 was accompanied, at the time of the delivery 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 : (a) 
 the court also seemed to be of opinion, that the no- 
 tice would have been good without the accompanying 
 declaration, the words " which will be, n manifestly 
 referring to the then next Lady-day. In like manner 
 where there was a misdescription of the premises in 
 the notice, which could lead to no mistake, the house 
 being described therein as the Waterman's Arms, in- 
 stead of the Bricklayer's Arms, no sign called the 
 Waterman's Arms being in the parish, the notice 
 was deemed a valid one. (6) 
 
 So likewise where a farm was leased for twenty- 
 one years at a certain rent, consisting, as described in 
 the lease, of the Town barton and its several parcels 
 described by name, at one portion of the rent, and 
 the Shippin Barton and its several parcels also des- 
 cribed by name, at the residue of the rent, with a 
 power reserved to either party to determine the lease 
 at the end of fourteen years on giving a certain 
 notice ; it was held that a notice given by the land- 
 lord to the tenant to quit " Town Barton 8$c, agree- 
 ably to the terms of the covenant between us, &c." 
 was sufficient, because the landlord must have in- 
 tended to give such a notice to quit as the lease re- 
 
 () Doe d. Duke of Bedford v. (6) Doe d. Cox v. , 4 Esp. 
 
 Kightley, 7T.R.63. 185.
 
 136 OF THE ACTION OF EJECTMENT 
 
 served to him the liberty of giving, and not a void 
 notice to quit a part only, and so the notice must have 
 been understood by the tenant, (a) 
 
 When a notice is given to quit at Michaelmas, or 
 Lady-day, generally, it will not be deemed an am- 
 biguous notice, but considered primd facie, as ex- 
 piring at new Michaelmas, or new Lady-day, open 
 however to explanation, that old Michaelmas, or old 
 Lady-day, was intended. And if it appear, that the 
 customary holdings where the lands lie, are from old 
 Michaelmas, or Lady-day, or even that in point of 
 fact the tenant entered at old Michaelmas, or Lady- 
 day, although no such custom exist, such a notice 
 will be binding upon him. () 
 
 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 conti- 
 nue it as to the residue, (a) But where the demise was 
 of land and tithes, and the notice was to quit posses- 
 sion of " all that messuage, tenement, or dwelling- 
 house, farm-lands, and premises, with the appurte- 
 nances 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, (c) 
 
 (a) Doe d. Rodd v. Archer, 14 East. d. Hall v. Benson, 4 B. & A. 
 
 245. 588. 
 
 (6) Furley d. Mayor of Canter- (c) Doe d. Morgan v. Church, 
 
 bury v. Wood, 1 Esp. 197. Doe d. 3 Campb. 71. 
 ilindeu.Vince,2 Campb.256. Doe
 
 AS BETWEEN LANDLORD AND TENANT. 137 
 
 Fourthly, Of the time when the notice should 
 expire. 
 
 Before, however, we enter upon this subject, it 
 maybe useful to observe, that certain demises, which 
 have the appearance of tenancies from year to year 
 only, are considered 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 no- 
 tice to quit at the expiration of the first year, (a) The 
 same interpretation has also been given to a demise 
 u for a year, and afterwards from year to year ;" (6) 
 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, (c) 
 
 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 by whom, the tenancy 
 might be determined at the end of the third, or sixth 
 year, the tenancy was held to be determinable, at the 
 two earlier periods, at the will of the tenant only, and 
 
 (a) Denn d Jacklin v. Cartright, son v. Huddlestonc, 4 B. & C. 922. 
 4 East. 31. (c) Thompson v. Maberley, 2 
 
 (b) Birch v. Wright, 1 T. R.378. Camp. 573. 
 80, and the cases there cited. John-
 
 138 OF THE ACTION OF EJECTMENT 
 
 by a regular notice to quit ; and that, as against the 
 landlord, the demise operated as an indefeasible one 
 for nine years, (a) 
 
 If the produce of the demised lands require two 
 years to come to perfection, as if it be liquorice, mad- 
 der, &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 year. () 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, in- 
 stead of as a tenancy from year to year; but this 
 doctrine seems very doubtful. 
 
 It has before been stated generally, that, by the 
 common law, the notice necessary to be given to a 
 tenant, is a notice for half a year, expiring at the 
 end of the current year of his tenancy ; and that 
 a notice, expiring at any other period, will not be 
 sufficient, (c) This notice is frequently spoken of 
 in the books, as a six months 9 notice; and the 
 distinction seems to be, that when the tenancy ex- 
 pires at any of the usual feasts, as Michaelmas, 
 Christmas, Lady-day, or Midsummer, the notice must 
 
 (a) Denn v. Spurrier, 3 B. & P. (b) Roeu. Lees, Black. 1171. 
 399. (c) Ante, 106.
 
 AS BETWEEN LANDLORD AND TENANT. 139 
 
 be given prior to 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 cor- 
 responding feast in the middle of the year, without 
 stating the day when the tenant is to quit, although 
 the intermediate time be not exactly 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.(6) 
 
 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, 
 
 (a) In a report of a MS. case J. Heath's decision, since the prin- 
 
 in Esp. N. P. 460, it is said, that ciple laid down in the report is in 
 
 a notice given on the 30th of Sep- opposition to every authority upon 
 
 tember, being the day after Mi- the subject. Probably the tenant 
 
 chaelmas-day, to quit at Lady-day entered at old Lady-day. Vide 
 
 following, was ruled by Heath, J. Right v. Darby. 1 T. R. 159, et 
 
 to be a sufficient notice. Some ante, 136. 
 
 particular circumstances, not no- (6) Howard v. Wemsley, 6 Esp. 
 ticed by the reporter, must, it is 53. The marginal note in the re- 
 conceived, have occasioned Mr. port of this case is incorrect.
 
 140 OF THE ACTION OF EJECTMENT 
 
 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 
 privileges, with respect to the notice to quit, as the 
 occupier of land, (a) 
 
 But this rule extends, with respect to houses, to 
 those cases only in which the tenancy enures as a 
 tenancy from year to year ; and the notice required 
 will refer to the original letting, and be regulated 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 lodg- 
 ings were originally taken ; as a week's notice when 
 taken by the week, a month's when taken by the 
 month, and so forth, (b) 
 
 When, also, the custom of the country, where the 
 premises 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 40*. is entitled to a quarter's 
 
 (a) Right v. Darby, 1 T. R. 159. Esp. 94. Doe d. Campbell v. Scott, 
 
 Doe d. Brown v. Wilkinson, Co. 6 Bing. 362. Wilson v. Abbott, 3 
 
 Litt. 270, (6) n. 1. B. & C. 89. 
 
 (6) Doe d. Parry v. Hazell, 1
 
 AS BETWEEN LANDLORD AND TENANT. 141 
 
 notice only, (a) the custom will be admitted by the 
 Courts ; (6) but such custom must be strictly proved, 
 and the witnesses must not speak to opinion, but 
 facts, (c) 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 period 
 for its expiration, (d) 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 te- 
 nancy 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 ; (d) and a 
 demise, where it was agreed " that the tenant was 
 always to be subject to quit at three months' notice," (e) 
 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 half- 
 yearly notice 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, (f) 
 
 . (d) Tyley v. Seed, Skin. 649. 1 Taunt. 155. 
 
 (i) Roe d. Brown . Wilkinson, (e) Kemp v. Derrett, 3 Campb. 
 
 Co. Lilt. 270. 6. n. 1. 511. 
 
 (c) Roe d. Henderson v. Char- (f) Shirley v. Newman, 1 Esp. 
 
 nock, Peake N. P. C. 4. 266. 
 (rf) Doe d. Pitcher v. Donovan,
 
 142 OP THE ACTION OF EJECTMENT 
 
 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, (a) 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 commencement of the tenancy is known, as 
 it provides against any misapprehension of the exact 
 day when the tenant entered. If a particular day be 
 mentioned in the notice, it must be the day of the 
 commencement, and not of the conclusion of the te- 
 nancy ; 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 commencement. 
 The next, or any subsequent day, will not be suffi- 
 cient. () 
 
 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 ; (c) 
 but this general rule may be varied, both as to the com- 
 mencement and expiration of the tenancy, either by 
 express agreement or legal inference. 
 
 When a person is let into possession as a yearly 
 tenant, and afterwards takes a lease of the premises, 
 
 (a) Appendix, No. 1, 2, 3. Doe East. 312. 
 
 d. Phillips v. Butler, 2 Esp. 589. (c) Kemp v. Derrett, 3 Campb. 
 
 (b) Doe d. Spicer v. Lea, 11 511.
 
 AS BETWEEN LANDLORD AND TENANT. 143 
 
 and continues to hold the land after the lease has ex- 
 pired, the time of the expiration of the tenancy, 
 created by such 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, con- 
 tinues 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 Michaelmas, and not at Lady- 
 day, (a) 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 of 
 their tenancies will be the same as if the original 
 lessee had continued in possession ; and it seems im- 
 material whether they come into possession before or 
 after the expiration of the lease. (6) 
 
 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 re- 
 mainder-man, must expire, will be regulated by the 
 terms of the lease, and not by the time of the death 
 of the tenant for life, (c) As, if the lease be for a cer- 
 tain number of years, to commence on the 5th of April, 
 and the tenant for life die on the 30th of September, 
 
 (a) Doe d. Spicer v. Lea, 11 East. (c) Doe d Collins v. Weller, 7 T. 
 
 312. R. 478. Right d. Flower v. Darby, 
 
 (6) Doe d. Castleton v. Samuel, 5 1 T. R. 159. Roe d. Jordan v. 
 
 Esp. 173. Ward, 1 H. Blk. 97. ante 110.
 
 144 OF THE ACTION OF EJECTMENT 
 
 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 parol lease, void by the statute offrauds. 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, (a) 
 
 It may be collected from these cases, that if there 
 be a lease for years, commencing on one day, and 
 terminating on another, as for example, commencing 
 at Lady-day, and terminating at Michaelmas, a te- 
 nancy 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 
 between 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. (5) 
 
 When a tenant took possession in the middle of a 
 quarter, paid rent from the time of his coming in up 
 to the next quarter-day, (Christmas,) and then paid his 
 
 (a) Doe d. Rigge v. Bell, 5 T. R. (6) Doe d. Bedford v. Kendrick, 
 
 471. Doe d. Peacock, v. Raftan, 6 Warwick, Sum. Ass. 1810. MS. 
 Esp. 4.
 
 AS BETWEEN LANDLORD AND TENANT. 145 
 
 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. () 
 But where the tenant entered 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 
 Ellenborough, C. J. the jury found that the tenancy 
 commenced with the preceding quarter. () 
 
 When the demise is by parol, and in general terms 
 to hold from feast to feast, as from Michaelmas to 
 Michaelmas, it will be a holding from such feast ac- 
 cording to the new style ; unless by the custom of the 
 country where the lands lie (which custom may be 
 proved by parol testimony) such tenancies commence 
 according to the old style, (c) If, however, the de- 
 mise be by deed to hold from any particular feast, as 
 " from the feast of St. Michael's" 8$c. the holding 
 must be taken to be according to the new style not- 
 withstanding the custom ; and this rule prevails al- 
 though the tenancy be created by a holding over after 
 the expiration of the lease, and the original entry was 
 according to the old style, (d} 
 
 Upon the same principle a notice to quit at Michael- 
 mas generally, primd facie means new Michaelmas ; 
 
 (a) Doe d. Holcomb v. Johnson, 6 bury v. Wood, 1 Esp. 198. Doe d. 
 
 Esp. 10. Hall v. Benson, 4 B. & A. 588. 
 
 (A) Dee d. Wad-nore . Selwyn, (d) Doe d. Spicer v. Lea, 1 1 East. 
 
 H. T. 47 Geo. 3. MS. 812. 
 
 (c) Furley d. Mayor of Canter-
 
 146 OP THE ACTION OP EJECTMENT 
 
 but if the tenant entered at old Michaelmas, it will 
 be construed to mean old Michaelmas. () 
 
 A. tenant sometimes enters upon different parts of 
 the land, at different periods of the year, although 
 all are contained in one demise ; and the notice to 
 quit must then be given with reference to the sub- 
 stantial time of entry, that is to say, with reference 
 to the time of entry on the substantial 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. (6) 
 
 This substantial time of entry, it has been con- 
 tended, must be determined by the times when the 
 rent is payable ; but it is holden to depend, either 
 upon the general custom of the country where the 
 lands lie, or upon the relative value and import- 
 ance 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 13th of February 
 then next, the pasture from the 5th of April, and the 
 meadow from the 12th of May, at a yearly rent pay- 
 able at old Michaelmas and old Lady-day, the first 
 
 (a) Doe d. Hinde v. Vince, 2 (b) Doe d. Strickland v. Spence, 6 
 Campb. 256. East. 120.
 
 AS BETWEEN LANDLORD AND TENANT. 147 
 
 payment to be made at Michaelmas 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 Michael- 
 mas was held sufficient, (a) 
 
 So also upon a demise of the same nature, namely, 
 that the tenant should enter upon the arable land at 
 Candlemas, 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 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 for the purpose of preparing it, and on 
 the other hand a stipulation by him when he quitted 
 the farm to allow the same privilege to the incoming 
 tenant ; and, therefore, that a notice to quit, given 
 six months previous to Lady-day, although less than 
 six months before Candlemas, was sufficient. (6) 
 
 Where the premises contained in the demise con- 
 
 (a) Doe d. Dagget v. Snowdon, 2 (1} Doed. Strickland v. Spence, 6 
 Blk. 1224. East. 120. 
 
 1,2
 
 148 OF THE ACTION OF EJECTMENT 
 
 sisted 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 water-courses, &c. and the 
 tenant held under a written agreement for a lease, to 
 commence as to the meadow ground from 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 pur- 
 pose of the manufacture, to which every thing else 
 in the demise was merely auxiliary, (a) 
 
 Where a house, and thirteen acres of land, were 
 demised for eleven years, to hold the lands from the 
 2nd of February, and the house and other premises 
 from the 1st of May, at the yearly rent of 24/. pay- 
 able at Michaelmas and Lady-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 previous to the 
 2nd of February. The Court was afterwards moved 
 to set aside the nonsuit, on the ground that the house 
 was the principal part of the demise (being situated 
 near a borough) ; or, at all events, that the relative 
 value and importance 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 
 
 (a) Doe d. Lord Bradford v. Watkins, 7 East. 551.
 
 AS BETWEEN LANDLORD AND TENANT. 149 
 
 was for the jury to decide which was the principal, 
 and which the accessory part of the demise, (a) 
 
 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, is the most usual means 
 by which a waiver of it is occasioned ; but the accept- 
 ance of such rent is not of itself a waiver of the no- 
 tice, but matter of evidence only to be left to the jury, 
 to determine with what views, and under what cir- 
 cumstances, the rent is paid and received. 
 
 If the money be taken nomine poente, as a compen- 
 sation for the trespass, or with an express declaration 
 that the notice is not thereby intended to be waived, 
 or if there be any fraud or contrivance on the part of 
 the tenant in paying it, or if the payment be accom- 
 panied by other circumstances which may induce an 
 opinion, that the landlord did not intend to con- 
 tinue the tenancy, no waiver will be produced by the 
 acceptance. The rent must be paid and received as 
 rent, that is to say, it must be so paid and received, 
 as to satisfy the jury of an intention to continue the 
 tenancy, or the notice will remain in force. Thus, 
 where the landlord brought an ejectment immediately 
 upon the expiration of the notice, and after the ap- 
 pearance of the tenant in the action, received from 
 him a quarter's rent, accruing subsequently to the day 
 when the notice expired, but nevertheless continued 
 
 () Docrf. Heapy >:. Howard, 11 East. 498.
 
 150 OF THE ACTION OF EJECTMENT 
 
 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 inference might be 
 drawn, that he did not mean to waive his notice ; and 
 as that point had not been left for the consideration 
 of the jury (who had been directed at the trial to find 
 for the defendant, upon the simple fact of the quar- 
 ter's rent having been paid and received), the motion 
 for the new trial was granted, (a) So also, where the 
 rent was usually paid at a banker's, and the banker, 
 in the common routine of business, received a quar- 
 ter's rent from the tenant after the expiration of the 
 notice, no waiver of the notice was thereby created. (6) 
 But where the notice expired at Michaelmas, 1792, 
 and the landlord accepted rent due at Lady-day, 1793, 
 and did not bring his ejectment until after such ac- 
 ceptance, nor try the cause until 1795, 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 second notice to quit, given after the 
 expiration of the first notice, but also after the com- 
 mencement of an ejectment, in which the landlord 
 continued to proceed, notwithstanding his second no- 
 tice, was holden to be no waiver of the notice origi- 
 nally given ; because it was impossible for the tenant 
 
 (a) Doe d. Cheny v. Batten, Campb. 387. 
 
 Cowp. 243. (c) Goodright d. Charter v. Cord- 
 
 (/>) Doe d. Ash v. Calvert, 2 went, 6 T. R. 219.
 
 AS BETWEEN LANDLORD AND TENANT. 151 
 
 to suppose, that the landlord meant to waive a notice 
 upon the foundation of which he was proceeding to 
 turn him out of his farm. () Where also, after the 
 expiration of a regular notice to quit, the landlord 
 gave a second notice in these words : " I 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 Ellen- 
 borough, 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 acknowledg- 
 ment of a subsisting tenancy at will, having for its 
 object merely the recovery of double value ; and the 
 lessor of the plaintiff recovered upon a demise, 
 anterior to the expiration of the second notice. () 
 So also where a notice was given " to quit the 
 premises which you hold under me, your term there- 
 in having long since expired," the Court considered 
 the paper as a mere demand of possession, and not 
 as a recognition of a subsisting tenancy, (c) 
 
 But where the defendant was lessee by assign- 
 ment of certain tithes, under an agreement, which 
 only operated to create a tenancy from year to year, 
 and the impropriator, ia March, 1810, (some days 
 after the assignment,) gave the original lessee a no- 
 tice to quit at the Michaelmas following, and after- 
 wards, in March 1811, gave the assignee a notice 
 to quit at the then next Michaelmas, the Court were 
 
 . (a) Doe d. Williams v. Hum- and 3 Campb. 115. 
 
 phreys, 2 East. 236 ; et vide, Mes- (r) Doe d. Godsell v. Inglis, 3 
 
 scnger u. Armstrong, 1 T. R. 53. Taunt. 54. 
 (A) Doe d. Digby v. Steel, MS.
 
 152 '*'/. OP THE ACTION OF EJECTMENT 
 
 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 support of the efficacy of the first notice, that the 
 original tenancy having expired at Michaelmas, 1810, 
 could not be set up again by 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 considered as an acknowledg- 
 ment 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 person? Nothing 
 appears to show, 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 se- 
 cond notice gives the defendant to understand, that 
 if he quits at Michaelmas 1811, he will not be deemed 
 a trespasser. () 
 
 It may be collected from this case, that if a tenant, 
 having underlet the premises, receive from his land- 
 lord a notice to quit, and the landlord afterwards give 
 to the under-tenant a notice to quit, expiring at a sub- 
 sequent period, (6) he is precluded from recovering 
 in an ejectment against such under-tenant, upon a de- 
 mise anterior to the time of the expiration of the no- 
 tice so given by him to the under-tenant. And if, 
 after the expiration of a regular notice, the landlord 
 should give to the same tenant a second regular no- 
 tice, in the usual form, *o quit at the termination of the 
 
 () Doe d. Brierly v. Palmer, 16 (i) Ante, 129. 
 East. 53.
 
 AS BETWEEN LANDLORD AND TENANT. 153 
 
 next, or any subsequent year of the tenancy, without 
 referring therein to any claim for double value, and 
 without having taken any steps, in the intermediate 
 time, to enforce the first notice, it may be doubted 
 whether such second notice will not also amount to a 
 waiver of the first. 
 
 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 con- 
 tended that the permission 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 de- 
 mise ought to have been laid posterior 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 
 permitting him to remain on the premises; and that 
 it was not intended to vacate the notice, or be de- 
 structive of any of the rights which the landlord had 
 acquired under it. (a) 
 
 The acceptance by the landlord of the double value 
 of the premises, given by the stat. 4 Geo. II. c. 28, 
 when the tenant wilfully holds over after the expira- 
 tion of a written notice to quit, or the bringing of an 
 
 (a) Whiteacre d. Boult t;. Symonds, 10 East. 13.
 
 154 OF THE ACTION OP EJECTMENT 
 
 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 land- 
 lord and tenant. But if, after the expiration of a no- 
 tice to quit by the tenant, the landlord accept the 
 double rent to which he is entitled by the stat. II Geo. 
 II. c. 19, it seems that he cannot afterwards proceed 
 upon the notice to quit, for this latter statute re- 
 cognizes 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. () 
 
 In cases where the act of the landlord cannot be 
 qualified, but must of necessity be taken as a con- 
 firmation of the tenancy, as if he distrain for rent ac- 
 cruing after the expiration of the notice, or recover 
 it in an action for use and occupation, the notice will 
 of course be waived : (b) but it seems that a pending 
 action for such use and occupation will not be suffi- 
 cient to invalidate the notice ; for the landlord may 
 only recover to the time of the expiration of the no- 
 tice, although he claim rent to a later period, (c) And 
 where a landlord, after a verdict in ejectment found- 
 ed on a notice to quit, distrained for rent due subse- 
 quently to the expiration of the notice, and the party 
 submitted and paid the rent, it was held to be no ground 
 
 (a) Doe d. Cheney v. Batten, (6) Zouch d. Ward v. Willingale, 
 
 Cowp. 245. Timmins v. Rowlinson, 1 II. Bl. 311. 
 
 Burr. 1603. Soulsby v. Neving, (c) Per Buller, J. Birch v. Wright, 
 
 9 East. 310. Ryal v. Rich, 10 1 T. R. 378 ; et vide Roe d. Cronip- 
 
 East. 48. ton v. Miiishall, S. N. P. 650.
 
 AS BETWEEN LANDLORD AND TENANT. 155 
 
 for staying the subsequent proceedings in the eject- 
 ment; for the distress was wrongful, and might have 
 been disputed by the tenant, (a) 
 
 By the common law, if a landlord distrained after 
 the expiration of a term, though for rent accruing 
 during its continuance, he was held to have acknow- 
 ledged a subsequent tenancy ; because, by the com- 
 mon law, no distress could be made after the deter- 
 mination of a demise; (b) but since the statute 8 Ann. 
 c. 14. s. 6. & 7, by which a landlord is allowed to 
 distrain within six calendar months after the deter- 
 mination 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 con- 
 tinuing, a distress for rent accruing at the time of 
 the expiration of the notice to quit, if made within 
 the six months, will be no waiver thereof. 
 
 Where a tenancy from year to year subsists be- 
 tween the parties, an ejectment cannot be maintained 
 on a parol notice to quit at a shorter period than 
 half a year, or expiring at a wrong period of the 
 tenancy, notwithstanding the assent of the tenant to 
 such notice, unless such assent be in writing ; be- 
 cause the notice being insufficient in itself to deter- 
 mine the tenant's interest, his assent can only make 
 it operative as a surrender of the term ; and as such 
 surrender is not by operation of law, but an actual 
 surrender by agreement between the parties, it is 
 
 (a) Doe d. Holmes v. Daiby, 8 (/>) Pennant's case, 3 Co. 64. 
 Taunt. 538.
 
 156 OF THE ACTION OF EJECTMENT 
 
 void by the statute of frauds, which requires that such 
 surrender should be by note in writing. () 
 
 Next, of the determination 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 in- 
 tends to quit the possession ; (6) secondly, by the 
 non-payment of rent, or breach of a covenant or con- 
 dition, (c) 
 
 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 rules adopted by 
 the Courts in the two latter instances. 
 
 The right to give a notice to quit is given by the 
 common law, and is necessarily incidental to a te- 
 nancy from year to year : the termination of a tenancy 
 by the non-payment of rent, or the breach of a cove- 
 nant, or condition, can only rise under an express 
 agreement between the parties, and seldom occurs 
 but where the tenant has a written lease for a de- 
 terminate period. 
 
 (a) Doe d. Hudlestone v. John- tion may perhaps be logically in- 
 son, 1 M'Leland and Yonge, 141. correct; but as the proceedings 
 Johnson v, Hudlestone, 4 B. & C. differ so materially in cases of non- 
 922, payment of rent, and of non-per- 
 (6) Appendix, No. 4. formance of other covenants, it 
 (c) As the non-payment of rent was thought most conducive to 
 is in fact the non-performance of a perspicuity to name them sepa- 
 covenant, this particular enumera- rately.
 
 AS BETWEEN LANDLORD AND TENANT. 157 
 
 It has already been observed, (a) that an actual 
 entry upon the lands was formerly necessary before 
 an ejectment could be maintained, and that the claim- 
 ant's title must be of such a nature as to render his 
 entry lawful. When, therefore, a lease for years 
 was granted to the tenant, and the right of possession 
 thereby transferred to him, the landlord could not 
 legally enter upon the land during the continuance 
 of the term; and was consequently without remedy 
 to recover back his possession whilst the term lasted, 
 although the tenant should neglect to render his rent, 
 or otherwise disregard the conditions of his grant. 
 When terras for years increased in length and value, 
 this became a serious evil to landlords. The tenant 
 might be so indigent as to render an action of cove- 
 nant upon the original lease altogether useless, and 
 the premises might be left without a sufficient distress 
 to countervail an arrear of rent. Asa means of ob- 
 viating these difficulties, it became the practice for 
 landlords to insert in their leases a proviso declaring 
 the lease forfeited, if the rent remained unpaid for 
 a certain time after it became due, or if any other 
 particular covenant of the lease were broken by the 
 lessee, and empowering the landlord in such cases 
 to re-enter upon, and re-occupy his lands. 
 
 When provisoes of this nature were first intro- 
 duced, the ancient practice prevailed, and of course 
 actual entries were then made in these as in all other 
 cases ; and it seems also to have been necessary, for 
 some years after the modern practice was invented, 
 and the sealing of leases dispensed with, for landlords 
 
 (a) Ante, 10.
 
 158 OP THE ACTION OP EJECTMENT 
 
 to make actual entries upon the lands, before they 
 could take advantage by ejectment of the forfeiture 
 of a lease. This useless form is now indeed abo- 
 lished ; but as the right to make the entry is still ne- 
 cessary, the provisoes are continued to the present 
 day in their ancient terms, (a) 
 
 Having thus briefly shown the principles upon 
 which these provisoes are founded, we shall now in- 
 quire, first as to the covenants deemed by our law to 
 be valid ; secondly, as to 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 ; and, thirdly, as to the modes by 
 which conditions may be dispensed with, or for- 
 feitures waived. 
 
 The landlord, having the jus disponendi, may an- 
 nex whatever conditions he pleases to his grant, pro- 
 vided they be neither contrary to the laws of the 
 kingdom, nor to the principles of reason, or public 
 policy ; and it is by these general maxims we must, 
 be guided, when called upon to consider the validity 
 of any particular covenant in a lease ; for only one 
 decided case upon the subject is to be found in our 
 legal authorities. 
 
 The lease in that case was for twenty-one years, 
 
 (a) Little v. Heaton, Salk. 258, 1 Vent. 248. Wither v. Gibson, 3 
 S. C. Ld. Raym. 760. Goodright Keb. 218. 
 d. Hare v. Cator, Doug. 477. Anon.
 
 AS BETWEEN LANDLORD AND TENANT. 159 
 
 and the proviso, that the landlord should have the 
 power to re-enter, if the tenant committed any act of 
 bankruptcy whereon a commission should issue. This 
 proviso was holden valid, upon the principle, that 
 as it is reasonable for a landlord to restrain his te- 
 nant from assigning, so it is equally reasonable for 
 him to guard against such an event as bankruptcy, 
 for the consequences of bankruptcy would be an as- 
 signment ; and that such a proviso is not contrary to 
 any express law, nor against reason or public policy, 
 for it is a proviso which cannot injure the creditors, 
 who would not rely on the possession 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 the pro- 
 viso that the tenant's interest would be forfeited in 
 case of bankruptcy. Buller, J. in his judgment on 
 the case, made a distinction between leases for short 
 terms, and 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 ob- 
 jections of creating a perpetuity ; but he afterwards 
 adds, that the principal ground of his decision was, 
 because it was a stipulation not against law, nor re- 
 pugnant 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 
 
 () Roe d. Hunter v. Galliers, 2 T. R. 133.
 
 160 OF THE ACTION OF EJECTMENT 
 
 any particular covenant, and herein of the proceed- 
 ings 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 regulating 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 
 introduced, it was unfortunately the practice to dis- 
 figure the principles of law by endless subtilties and 
 distinctions ; and the preliminaries required by the 
 common law, before a landlord can bring an eject- 
 ment upon a clause of re-entry for non-payment of 
 rent, are so numerous, as to render it next to impos- 
 sible 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 person, 
 or by an agent properly authorized, (a) Secondly, 
 the demand must be of the precise rent due; (b) for 
 
 (a) Roe d. West v. Davies, 7 East, rent due, by the non-payment w/iere- 
 
 363. of the forfeiture will be incwred ; 
 
 (6) That is to say, of the precise as a quarter's rent, if the rent be
 
 AS BETWEEN LANDLORD AND TENANT. 161 
 
 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 payable, 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, (a) 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 ten- 
 der the rent, it is sufficient to save a forfeiture, 
 for the law leans against forfeitures. 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 in 
 fact, although there should be no person on the land 
 ready to pay it." (b) 
 
 Nor are these the only vexatious difficulties to 
 
 payable quarterly, half a year's rent, 3 C. & P. 613. 
 if payable half-yearly, and so forth ; (a) According to the case of Doe 
 and if there be any previous arrears d. Wheeldon v. Paul, 3 C. and P. 
 of rent, and the rent demanded 613, the demand ought to be made 
 include such arrears, it will not be at the last hour of the day, at sun- 
 sufficient to work a forfeiture. Doe set. 
 d. Wheeldon v. Paul, M.S. S. C. (6) 1 Saund. 287, (n. 16.) 
 
 M
 
 162 OF THE ACTION OF EJECTMENT 
 
 which a landlord, by the common law, was subject. 
 The courts, notwithstanding his compliance with all 
 the required formalities, would set aside the for- 
 feiture, upon the payment of the debt and costs, at 
 any time before execution executed ; (a) 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-entry, and less than six months 9 rent is due, all 
 these evils still exist, (unless dispensed with by the 
 express words of the lease,) (b] but, by the wise pro- 
 visions of the legislature, the landlord is now relieved 
 from the two latter inconveniences in all cases where 
 six months' rent is inarrear; and is also exempted 
 from an observance of the forms and niceties of the 
 common law, if there be likewise no sufficient dis- 
 tress 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 
 
 () Roe d. West v. Davis, 7 East, end to all proceedings by re-entry 
 
 363, and the cases there cited. at common law, and repeated that 
 
 (b) Doe d. Harris v. Masters, opinion in his judgment on the 
 
 2 B. & C. 490. Wood, B. in his same case in the House of Lords 
 
 judgment in the Exchequer Cham- (2 B. & B. 554) ; but his opinion 
 
 ber, in the case of Doe d. Lord was not supported by any other 
 
 Jersey v. Smith, 1 B. & B. 178, Judge ; and many of the Judges 
 
 intimated a strong opinton that expressed their dissent from it. 
 the stat. 4. Geo. II. c. 28, put an 
 
 L 8
 
 AS BETWEEN LANDLORD AND TENANT. 163 
 
 " non-payment thereof, such landlord or lessor shall 
 " and may, without any formal 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 posses- 
 ee sion of the premises, may then affix the same upon 
 " the door of any demised messuage, or in case such 
 " ejectment shall not be for the recovery of any mes- 
 " suage, then upon some notorious place of the lands, 
 " tenements or hereditaments, comprised in such 
 " declaration in ejectment, and such affixing shall be 
 " deemed legal service thereof, which service or affix- 
 " ing such declaration in ejectment, shall stand in the 
 <f place and stead of a demand and re-entry ; and in 
 " case of judgment against the casual ejector, or 
 " nonsuit for not confessing, lease entry, and ouster, 
 " it shall be made appear to the court where the said 
 " suit is depending, by affidavit, or be proved upon 
 ee the trial, in case the defendant appears, that half a 
 ff year's rent was due before the said declaration was 
 " served, and that no sufficient distress was to be 
 " found on the demised premises, countervailing the 
 ee 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 execution, in the same 
 " manner as if the rent in arrear had been legally de- 
 " manded, 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 judg- 
 " ment to be had and recovered on such ejectment, 
 
 M 2
 
 1G4 OF THE ACTION OF EJECTMENT 
 
 " and execution to be executed thereon, without pay- 
 " ing the rent and arrears, together with full costs, 
 <( and without filing any bill or bills for relief in 
 " equity, within six calendar months after such exe- 
 " cution executed; then such lessee, &cc. 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 
 <f 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 any mort- 
 " gagee or mortgagees of such lease, or any part 
 ec thereof, who shall not be in possession, so as such 
 <c mortgagee or mortgagees shall, within six calendar 
 t( months after such judgment obtained, and execu- 
 tf tion executed, pay all rent in arrear, and all costs 
 " and damages sustained by such lessor, or persons 
 " entitled to the remainder or reversion as aforesaid, 
 " 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
 
 AS BETWEEN LANDLORD AND TENANT. 165 
 
 u equity, of, in, or to the said lease, shall within the 
 " time aforesaid, file one or more bill or bills, for re- 
 " lief in any court of equity, such person or persons 
 " shall not have or continue any injunction, against 
 " the proceedings at law on such ejectment, unless 
 u he, she, or they shall, within forty days next after 
 u 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 
 u sum of money as the lessor or lessors of the plaintiff 
 " in the said ejectment shall, in their answers, swear 
 u to be due and in arrear, over and above all just al~ 
 " lowances, 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 se- 
 M curity, 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 bond fide, without fraud, deceit, or wilful 
 " neglect, make of the demised premises from the time 
 " of their entering into the actual possession thereof; 
 " and if what shall be so made by the lessor or lessors 
 " of the plaintiff, happen to be less than the rent re- 
 " served 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 
 u money so by them made, fell short of the reserved 
 " rent, for the time such lessor or lessors of the plain- 
 " tiffj landlord or landlords, held the said lands."
 
 1G6 OF THE ACTION OF EJECTMENT 
 
 Section 4. " Provided, that if the tenant or tenants, 
 " his, her, or their assignee or assignees, shall at any 
 " time before 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 arrears, together with 
 " the costs, then all further proceedings on the said 
 " ejectment shall cease and be discontinued ; and if 
 " such lessee, &c. or their executors, administrators, 
 " or assigns, shall, upon such bill filed as aforesaid, be 
 " relieved in equity, he, she, and they, shall have, hold, 
 " and enjoy the demised lands, according to the lease 
 " thereof made, without any new lease to be thereof 
 " made to him, her, or them." 
 
 Some little perplexity attends the wording of these 
 sections, 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 operation, and its provisions (with 
 the exception of the one, which dispenses with the 
 formalities required by the common 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, (a) 
 
 The legislature appear to have four different objects 
 in view, in the enactments of this statute. First, to 
 
 (a) Roe d. West v. Davis, 7 East. 363.
 
 A3 BETWEEN LANDLORD AND TENANT. 167 
 
 abolish the idle form of a demand of rent, where no 
 sufficient distress can be found upon the premises to 
 answer that demand ; 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 render the possession 
 of the landlord secure, after he has recovered the 
 lands ; and fourthly, to take from the court the discre- 
 tionary 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 ob- 
 jects is effected by permitting the landlord to bring 
 his ejectment without previously demanding the rent : 
 the second, by permitting a mortgagee not in posses- 
 sion 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 : (a) the 
 third, by limiting the time for the lessee 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 
 
 (a) It b difficult to discover from whom the recovery is had," be- 
 
 the report of the case of Doe d. cause by the provisions of this sta- 
 
 Whitfield v. Roe, 3 Taunt. 402, tute, a lessee can only have relief 
 
 what was the true point submitted against an ejectment for a for- 
 
 to the judgment of the court. It feiture, upon paying the arrears of 
 
 is quite clear it is not the one rent and costs of suit into court 
 
 stated in the margin, viz. " that the before trial, whereas a mortgagee 
 
 mortgagee of a lease has the same may obtain relief upon paying the 
 
 title to relief, against an ejectment arrears, costs, and damages, at any 
 
 for non-payment of rent, and upon time within six months after execu- 
 
 the same terras, as the lessee against tion executed.
 
 168 OF THE ACTION OF EJECTMENT 
 
 and costs, to the time anterior to the trial, and making 
 it compulsory upon the court to grant the application 
 when properly made, (a) 
 
 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 ar- 
 rear, 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, (b) But an 
 insertion in the proviso of the lease that the right of 
 re-entry shall accrue upon the rent being lawfully de- 
 manded, will not render a demand necessary if there 
 be no sufficient distress, for it is only stating in ex- 
 press words, that which is in substance contained, 
 from the principles of the common law, in every pro- 
 viso of this nature, (c) 
 
 It has been observed that the provisions of this 
 statute (with the exception of the one relating to the 
 demand of rent) extend to all cases where there is 
 
 (a) Roe d. West v. Davis, 7 East. C. J. differed from the other Judges 
 
 363. in this case, he being of opinion, 
 
 (6) Doe d. Forster v. Wandlass, that when the words " being law- 
 
 7T. R. 117. Vide Smith v. Spooner, fully demanded" were inserted in a 
 
 3 Taunt. 251. If the reader can proviso for re-entry, they were to 
 
 comprehend the meaning of the ex- be considered as a stipulation be- 
 
 pressions reported to have been used tween the parties that the rent 
 
 by the Judges in pages 251, 252, of should be, in fact, demanded 
 
 this case, he will be more fortunate (though not with the strictness of 
 
 than the writer of this note. the common law) before ejectment 
 
 (c) Doe d. Schofield v. Alexander, brought. 
 2 M. & S. 525. Lord Ellenborough,
 
 AS BETWEEN LANDLORD AND TENANT. 169 
 
 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 pro- 
 ceedings 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 wasobjected in that case that^e 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 statute is more general in its opera- 
 tion ; for though the fourth clause has the word suck 
 (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 in 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 be- 
 fore the declaration served, and that no sufficient dis- 
 tress 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 judg- 
 ment and execution." (a) 
 
 
 
 By the words of the fourth section the lessee is to 
 
 (a) Roe d. West v. Davis, 7 East. 363.
 
 170 OF THE ACTION OF EJECTMENT 
 
 pay the arrears of rent, &c. into Court before the 
 trial; and no provision is expressly made for his re- 
 lief in case he should suffer judgment to go by default 
 against the casual ejector ; but the Courts do not con- 
 sider a judgment so obtained as equivalent to a trial, 
 but will grant relief to the lessee at any time before 
 execution executed, (a) 
 
 The provision of this fourth section seems also to 
 extend only to cases where the rent and costs are ten- 
 dered 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 de- 
 claration 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. (6) 
 
 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 proceedings upon payment of the 
 rent, that the case was not within the act, because it 
 was not an ejectment founded singly on the non-pay- 
 ment of rent ; but the Court, notwithstanding, made 
 the rule absolute, with liberty for the lessor to pro- 
 ceed on any other title, (c) But where the lessor 
 has recovered possession of the premises, a court of 
 
 (a) Goodtitle v. Holdfast. Stran. Noright, Black. 746. 
 900. Doe d. Harris v. Masters, 2 (c) Pure d. Withers v. Sturdy, 
 
 B. &C. 490. B. N. P. 97. 
 
 (U) Coodright d. Stephenson v.
 
 AS BETWEEN LANDLORD AND TENANT. 171 
 
 equity will not grant relief under the second section, 
 if such recovery was by reason of the breach of other 
 covenants or conditions, as well as by the non-pay- 
 ment of rent. And where the tenant applied to the 
 Court of Chancery to relieve against a recovery upon 
 a judgment by default against the casual ejector, al- 
 ledging that the ejectment was brought for a forfeiture 
 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 the covenant, 
 at the time of bringing the ejectment, (a) 
 
 Where the lessors of the plaintiff were both de- 
 visees and executors, and in each capacity rent was 
 due to them, the defendant moved to stay proceed- 
 ings on payment of the rent due to the lessors of the 
 plaintiff as devisees, they not being entitled to bring 
 ejectment as executors; there appeared to be a mutual 
 debt to the defendant by simple contract, and the de- 
 fendant offered to go into the whole account, 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 proceed- 
 ings on payment of the rent due to the lessors as de- 
 visees, and costs. (6) 
 
 The proceedings may be staid, either by moving 
 the Court, or in vacation time by summons, (c) 
 
 (a) Wadman v. Calcraft, 10 Vez. stall, Barn. 184. 
 67. (c) 2 Sell. Prac. 127. 
 
 (6) Duckworth v. Tubley v. Tun-
 
 17'2 OF THE ACTION OF EJECTMENT 
 
 In moving for judgment against the casual ejector 
 in an ejectment brought under the provisions of this 
 statute, the Court will not grant a rule for judgment 
 without an affidavit, (a) pursuant to the statute, that 
 half a year's rent was in arrear before declaration 
 served, that the lessor of the plaintiff had a right to 
 re-enter, and that no sufficient distress was to be 
 found upon the premises countervailing the arrears of 
 rent then due : and the affidavit must also state the 
 service of the declaration in ejectment on the tenant in 
 possession, or that the premises were untenanted, or 
 that the tenant could not be legally served, or as the 
 facts may be, and in such cases that a copy of the de- 
 claration was affixed on the most notorious (stating 
 what) part of the premises () 
 
 This affidavit is of course only necessary upon 
 moving for judgment against the casual ejector, or 
 after a nonsuit at the trial for the tenant's not con- 
 
 (a) In the case of Doe d. Hitch- lord) to give evidence of this affi- 
 ings v. Lewis, (Burr. 614,) it ap- davit. The Court were unanimously 
 peared, that the lessor of the plain- of opinion, that from the lapse of 
 tiff had once been tenant to the years no such evidence was neces- 
 defendant, under a lease for a term sary ; but it seems to have been 
 of years, of which some were yet Lord Mansfield's opinion, that if 
 to come : and had been ejected by the lessor of the plaintiff in the 
 him nearly twenty years before, by second action had proved, that in 
 a judgment in ejectment against point of fact no affidavit had been 
 the casual ejector, pursuant to the made, he would have been entitled 
 statute of 4 Geo. II. c. 28, for non- to recover. But qu&re, if the pro- 
 payment of rent. The title set up per method in such case, if the 
 by the lessor in this last action was judgment be recent, is not to move 
 the irregularity of the proceedings the Court, upon affidavit of facts, 
 in the first ejectment, from the to set aside the judgment for irregu- 
 want of a proper affidavit whereon larity. 
 
 to ground the judgment ; and the (6) App. No. 19. Doe d. Sea- 
 question for the Court to decide brook v. Roe, 4 B. Moore, 350. 
 was, whether it was necessary for Doe d. Evans v. Roe, 4 B. Moore, 
 the defendant (the original land- 469.
 
 AS BETWEEN LANDLORD AND TENANT. 173 
 
 fessing lease, entry, and ouster ; but if the tenant ap- 
 pear, and the ejectment come to trial, the matters 
 contained in the above affidavit must be proved, (a) 
 
 When a forfeiture has accrued upon a clause of re- 
 entry for rent in arrear, such forfeiture will be 
 waived if the landlord do any act after the for- 
 feiture, which amounts to an acknowledgment of a 
 subsisting tenancy ; as if he receives rent due at a 
 subsequent quarter, or distrain for that in respect of 
 which the forfeiture accrued, or receive the same and 
 give a receipt for it as for so much rent, or in which 
 he calls the party his tenant. It seems, however, ac- 
 cording to the old authorities, that in the case of a 
 lease for years, the bare acceptance by the lessor at a 
 subsequent day of the rent, in respect of which the 
 forfeiture accrued, although before ejectment brought, 
 will not of itself, unless accompanied with circum- 
 stances which show an intention to continue the te- 
 nancy, bar him of his right to re-enter, because the 
 rent is a duty due to him, and as well before as after 
 re-entry, he may have an action of debt for the same 
 on the contract between the lessor and lessee; but 
 that in the case of a lease for life, the mere accept- 
 ance of such rent will be sufficient to affirm the lease, 
 as the lessor could not receive it as due upon any 
 contract, but must receive it as his rent ; for when he 
 accepted the rent he could not have an action of debt 
 for it, but his remedy was by assize, if he had seizin, 
 or distress. (6) 
 
 (a) Doe d. Ilitchings v. Lewis, S. C. 1 Leon. 262. Pennant's case, 
 Burr. 614. 20. 3 Co. 64. et vide Doe. d. Cheney v. 
 
 (6) Green's case, Cro. Eliz. 3. Batten, Cowp, 243.
 
 174 OP THE ACTION OF EJECTMENT 
 
 Where an ejectment was brought upon a proviso 
 of re-entry for non-payment of rent, and the lessor 
 also commenced an action of covenant for rent, ac- 
 cruing subsequently to the day of the demise in the 
 ejectment, and the tenant paid into Court the rent 
 demanded in the action of covenant, the forfeiture 
 was holden to be waived ; but it seems doubtful 
 whether the commencement of the action of covenant 
 was of itself sufficient to waive the forfeiture, (a) 
 
 A right of re-entry for non-payment of rent under 
 the stat. 4 Geo. II. c. 28, will not be waived by 
 taking an insufficient distress for that rent, nor by 
 continuing in possession under such distress after the 
 expiration of the last day for the payment of the 
 rent, (b) But the mere act of taking a distress, al- 
 though an insufficient one, is waiver of a right of re- 
 entry at common law. (c) 
 
 (a) Doe d. Crampton v. Minshul, principle to cases under the stat. 4. 
 
 B. N. P. 96. S. N. P. 650. Geo. II. c. 28. The note is subjoined. 
 
 (6) Doe d. Taylor v. Johnson, 1 
 
 c , Brewer d. Lord Onslow v. Ea- 
 
 Stark. 411. 
 
 (e) Brewer d. Lord Onslow v. 
 
 -n.TrT.-n m An ejectment may be supported on 
 
 Eaton, K. B. Easter Term, 1773, MS. 
 
 4 Geo. II. c. 28. though the land- 
 
 This case, as cited in Goodnght . 
 
 , _,, _, , . lord, subsequently to the time 
 
 d. Charter v. Cord went, 6 T. E. .. 
 
 of the demise, distrained for rent 
 220, seems to warrant a conclu- 
 
 , .. _ accruing previously to that, for the 
 
 sion, that the taking of an insuffi- 
 
 ,. ... . . , non-payment of which the eject- 
 
 cient distress will not waive a right 
 
 - ment was brought. 
 
 or re-entry at common law. I 
 
 have been favoured by Mr. Jardine Ejectment under 4 Geo. II. 
 
 with a MS. report of the case, c. 28, for non-payment of rent, 
 
 taken from the note-book of Gibbs 200., was in arrear for two years' 
 
 C. J. (the marginal note being in rent due at Michaelmas 1782; on 
 his hand-writing, and the body of the 3d of December, Lord Onslow 
 the note in the hand-writing of Mr. distrained, and could levy but 351. 
 Justice Dampier,) which limits the For this distress a replevin was still
 
 AS BETWEEN LANDLORD AND TENANT. 
 
 175 
 
 With respect to provisoes for re-entry upon the 
 breach of other conditions, no general principle can 
 be laid down, excepting that which arises out of the 
 
 subsisting ; the declaration in eject- 
 ment was delivered in January, and 
 the demise laid on October 3d, 1782. 
 The plaintiff had a verdict before 
 Mr. J. Ashurst, and liberty was re- 
 served for the defendant to move 
 for a nonsuit if this Court should 
 admit of an objection which was 
 now pursued; viz. that the land- 
 lord having taken a distress subse- 
 quently to the time of the demise, had 
 thereby waived his right of entry. 
 
 Erskine for Plaintiff; Morgan for 
 Defendant. 
 
 Lord Mansfield,C. J. At common 
 law, if a distress had been taken after 
 anejectment brought for a forfeiture, 
 the Court would lay hold of this or 
 any other grounds they could, to say 
 the landlord had waived his forfeit- 
 ure, because forfeitures are reckon- 
 ed odious in law. It is like the re- 
 ceipt of rent after the demise, about 
 which there was so long a puzzle. That 
 is now finally settled to benoobjection 
 to an ejectment; it is receiving what 
 the landlord might have recovered in 
 an action for mesne profits. Here the 
 party has a right of re-entry ; then, 
 by the statute, he has a right to re- 
 cover in a particular way, if there 
 is not a sufficient distress. He has 
 distrained since: that is no pre- 
 sumption of the waiver of his right 
 of entry, because it is consistent 
 with it ; it seems a necessary step 
 to ascertain the sufficiency of the 
 distress. 
 
 Wittes J. At common law the 
 landlord had two remedies, re-en- 
 try and distress. The resorting to 
 the latter would have been a waiver 
 of the re-entry ; but if the distress 
 be not sufficient, the statute restores 
 that remedy, when, by the common 
 law, the waiver had taken it away. 
 Rule discharged. 
 
 It may be useful to notice in this 
 place a provision of the legislature 
 in one particular case of rent in 
 arrear, although it does not strictly 
 belong to a treatise on ejectment. 
 By the statute 11 Geo. II. c. 19. s. 
 16, (extended by 57 Geo. III. c. 52, 
 to cases where half a year's rent 
 shall be in arrear,) after reciting, 
 that landlords are often great suf- 
 ferers by tenants running away in 
 arrear, and not only suffering the 
 demised premises to be uncultivat- 
 ed, without any distress thereon, 
 whereby the landlords or lessors 
 might be satisfied for the rent in ar- 
 rear; but also refusing to deliver up 
 the possession of the demised pre- 
 mises, whereby the landlords are 
 put to the expense and delay of re- 
 covering them in ejectment; it is 
 enacted, " that if any tenant hold- 
 " ing any lands, tenements, or he- 
 " reditaments, at a rack rent, or 
 " where the rent reserved shall be 
 " full three-fourths of the yearly va- 
 " lue of the demised premises, who 
 " shall be in arrear for one year's
 
 176 
 
 OP THE ACTION OF EJECTMENT 
 
 maxim of our law, that every doubtful grant shall be 
 construed in favour of the grantee ; namely, that the 
 breach complained of must come within the very 
 letter of the covenant, or the lease will not be for- 
 feited ; and the clearest method of showing the appli- 
 
 " rent, shall desert the demised 
 " premises, and leave the same un- 
 " cultivated or unoccupied, so as 
 " no sufficient distress can be had 
 " to countervail the arrears of rent; 
 " it shall and maybe lawful, to and 
 " for two or more justices of the 
 " peace of the county, riding, di- 
 " vision, or place, (having no in- 
 " terest in the demised premises,) at 
 " the request of the lessor or land- 
 " lord, lessors or landlords, or his, 
 " her, or their bailiff or receiver, to 
 " go upon and view the same, and 
 " to affix, or cause to be affixed, on 
 " the most notorious part of the pre- 
 " mises, notice in writing, what day 
 " (at the distance of fourteen days 
 " at least,) they will return to take 
 '* a second view thereof; and if 
 " upon such second view, the 
 " tenant, or some person on his or 
 " her behalf, shall not appear, and 
 " pay the rent in arrear, or there 
 '* shall not be sufficient distress 
 " upon the premises; then the said 
 " justices may put the landlord or 
 " landlords, lessor or lessors, into 
 " the possession of the said demised 
 " premises, and the lease thereof 
 " to such tenant, as to any demise 
 " therein contained only, shall from 
 " thenceforth become void." 
 
 " Sect 17. " Provided alwavs 
 
 " that such proceedings of the said 
 " justices shall be examinable in a 
 " summary way, by the next justice 
 " or justices of assize of the re- 
 " spective counties in which such 
 " lands or premises lie; and if they 
 " lie in the city of London, or 
 " county of Middlesex, by the 
 " Judges of the courts of King's 
 " Bench or Common Pleas ; and 
 " if in the counties palatine of 
 " Chester, Lancaster, or Durham, 
 " then before the Judges thereof; 
 " and if in Wales, then before the 
 " courts of grand session respec- 
 '* tively ; who are hereby respec- 
 " tively empowered to order re- 
 " stitution to be made to such 
 " tenant, together with his or her 
 " expenses and costs, to be paid by 
 " the lessor or landlord, lessors or 
 " landlords, if they shall see cause 
 " for the same; and in case they 
 " shall affirm the act of the said 
 "justices, to award costs, not ex- 
 *' ceeding five pounds, for the fri- 
 " volous appeal." The provisions 
 of this statute, however, like those 
 of4Geo. II. c. 28, are holden to 
 extend only to cases where the 
 landlord has a right of re-entry re- 
 served to him by the demise. 
 Wood, L.&T. 523.
 
 AS BETWEEN LANDLORD AND TENANT. 177 
 
 cation of this principle will be by giving a short 
 digest of the cases upon the subject. 
 
 Where the lessee covenanted with the lessor not to 
 assign his term without the lessor's consent, and 
 afterwards devised his term without such consent, it 
 was holden not to amount to a forfeiture, for a devise 
 is not a lease, (a) 
 
 Where the lessee covenanted not to demise, assign, 
 transfer, or set over, or otherwise do or put away the 
 indenture of demise, or the premises thereby demised, 
 or any part thereof, to any person or persons what- 
 soever, and afterwards made an under-lease of the 
 premises, it was held not to be a breach of the cove- 
 nant, or a forfeiture of term, for an under-lease is 
 not an assignment. And it was said by the Court, in 
 answer to an argument, that although an under-lease 
 did not amount to an assignment, yet that it was a 
 transferring, setting over, doing, or putting away 
 with the premises, that the Courts have always looked 
 nearly into these conditions, covenants, and provisoes, 
 that the devising a term was a doing or putting it 
 away, so being in debt by confessing a judgment, 
 and having the term taken in execution was the like, 
 but that none of these amounted to an assignment, or 
 to a breach of the covenant, or condition. (6) 
 
 It seems to have been once holden, that if a lessee 
 for years grant the lands to another for the whole 
 term he has therein, but reserve the rent payable to 
 
 (a) Fox . Swan, Sty. 482. 3 Wils. 234. 
 
 (6) Crusoe d. Blencowe t>. Bugby, 
 
 N
 
 178 OF THE ACTION OF EJECTMENT 
 
 himself, and not to the original lessor, it will be a 
 lease, and not an assignment, notwithstanding the 
 want of a reversion in the party so granting; but 
 this doctrine, if the decision were as reported, has 
 since been overruled, (a) 
 
 Where the lease contained a proviso, that the 
 lessee should not set, let, or assign over, the whole, 
 or any part, of the premises, without leave in writ- 
 ing, on pain of forfeiting the lease, it was held that 
 the lessee could not under-let without incurring a for- 
 feiture ; because the word over was annexed only to 
 the word assign, a'nd therefore the condition was 
 broken if the lessee let the premises, or any part of 
 them, for any part of the time. (#) And where the 
 proviso was not to assign, or otherwise part with the 
 premises, for the whole, or any part, of the term, the 
 proviso was held to be broken by an under-lease, as 
 well as by an assignment, (c) 
 
 Where the covenant, was not to set, let, assign, 
 transfer, set over, or otherwise part with, the pre- 
 mises thereby demised, or that present indenture of 
 lease, a deposit of the indenture with a creditor, 
 as a receipt for money advanced, was held not to 
 
 () Poultney v. Holmes, Stran. year, and not as a tenancy for the 
 
 405. Palmer v. Edwards, Doug, residue of the term. Vide Doe d. 
 
 187, in notis. It seems from these iligge v. Bell, 5 T. R. 471. Clayton 
 
 cases, that a parol assignment of v. Blakey, 8 T. R. 3. 
 
 the whole term, which is void by (6) Roe d. Gregson v. Harrison, 
 
 the statute of frauds, will be good 2 T. R. 425. 
 
 as an under-lease; but quare if the (c) Doe d. Holland v. Worseley, 1 
 
 tenancy thereby created does not Campb. 20. 
 enure as a tenancy from year to
 
 AS BETWEEN LANDLORD AND TENANT. 179 
 
 he a parting with it, within the meaning oi the cove- 
 nant. -(a) 
 
 Where a lease contained a proviso for re-entry in 
 case the tenant should demise or let the demised pre- 
 mises, or any part thereof, for all or any part of the 
 term without licence, and the tenant without licence 
 agreed with a person to enter into partnership with 
 him, and that he should have the use of certain parts 
 of the premises exclusively, and of the rest jointly 
 with him the tenant, and accordingly let him into 
 possession; it was held that the lease was forfeited 
 thereby, for that it was a parting with the exclusive 
 possession of some part of the demised premises, and 
 whether it were gratuitously or for rent reserved was 
 immaterial, (b) 
 
 A covenant not to under-let any part of the premises 
 without licence, is not broken by taking in lodgers ; 
 for, per Lord Ellenborough , C. J. " The covenant 
 can only extend to such under-letting as a licence 
 might be expected to be applied for, and whoever 
 heard of a licence from a landlord to take in a 
 lodger ? (c) 
 
 Where the lessee enters into covenants not to as- 
 sign, &c. the Courts will distinguish between those 
 acts which are done by him voluntarily, and those 
 which pass in invitum, and will not hold the latter to 
 
 (a) Doe d. Pitt v. Laming, 1 R. M. & S. 297. 
 
 &M.36. (<) Doe d. Pitt v. Laming, 4 
 
 (*) Roe rf. Dingley v. Sales, 1 Campb. 77.
 
 180 
 
 be a breach of the covenant. Thus, if the lessee be- 
 come bankrupt, and the term be assigned under the 
 commission, no forfeiture will be incurred ; (a) unless, 
 indeed, there be an express stipulation in the proviso 
 that it shall extend to the bankruptcy of the lessee. (ii) 
 And where a lessee, who had covenanted not to " let, 
 set, assign, transfer, make over, barter, exchange, or 
 otherwise part with the indenture," with a proviso, 
 that in such case the landlord might re-enter, after- 
 wards gave a warrant of attorney to confess judg- 
 ment, on which the lease was taken in execution and 
 sold ; it was held to be no forfeiture of the lease, 
 unless the warrant of attorney were given expressly 
 for the purpose of having the lease taken; for judg- 
 ments, in contemplation of law, always pass in in- 
 vitum. A.nd Lord Kenyan, C. J. said, "there was no 
 difference between a judgment obtained in conse- 
 quence of an action resisted, and a judgment that is 
 signed under a warrant of attorney ; since the latter 
 is merely to shorten the process, and lessen the ex- 
 pense of the proceedings :" but if the warrant of 
 attorney be expressly given for the purpose of having 
 the lease taken in execution, it will be held to be in 
 fraud of the covenant, and a forfeiture of the lease, (c) 
 
 This protection extends also to the party, to whom 
 the term is by law assigned. The reason of this is, 
 that such assignee cannot be encumbered with the 
 engagement belonging to the property which he 
 
 (a) Doe d. Goodbehere v. Bevan, 2 T. R. 133. 
 
 3 M. & S. 353. (c) Doe d. Mitchinson v. Carter, 
 
 (6) Roe d. Hunter v. Galliers, 8. T. R. 57. 300.
 
 AS BETWEEN LANDLORD AND TENANT. 181 
 
 lakes, but must be allowed to divest himself of it* 
 and convert it into a fund for the benefit of the 
 creditors ; and therefore a forfeiture is not incurred, 
 if the assignees sell the term, (a) 
 
 But where one leased for twenty-one years, u if 
 the tenant, his executors, &c. should so long continue 
 to inhabit and dwell in the farm-house, and actually 
 occupy the lands, &c. and not let, set, assign over, or 
 otherwise depart with the lease," the tenant having 
 become bankrupt, and his assignees having possessed 
 themselves of the premises, and sold the lease, and the 
 bankrupt being out of the possession and occupation 
 of the farm, it was held, that the lessor might main- 
 tain ejectment. And this case was distinguished from 
 the one just mentioned, as not being a case of for- 
 feiture; but one in which the term itself was made 
 to continue and depend upon the personal occupation 
 of the lessee, and that therefore the term itself ceased, 
 when the lessee had no longer the occupation of the 
 farm, (b) 
 
 Where the lease contained a proviso for re-entry 
 on the lessee assigning without licence, and the 
 lessee executed a deed purporting to convey all his 
 property real and personal to trustees for the be- 
 nefit of his creditors, and afterwards a commission 
 of bankrupt was taken out against him, and he was 
 duly declared a bankrupt ; it was held that the trust- 
 deed, being an act of bankruptcy and void, did not 
 
 (a) Doe d. Goodbeherc v. Sevan, (b) Doe d. Lockwood v. Clarke, 
 
 3 M. &. S. 353. 8 East 185.
 
 182 OF THE ACTION OF EJECTMENT 
 
 operate as a valid assignment of the lessee's interest 
 in the lease, nor create a forfeiture, (a) 
 
 Where a lease contained an exception out of the 
 demise of all trees then growing, or thereafter to 
 grow upon the demised premises, and also a proviso, 
 that if the defendant should commit any waste in or 
 upon the said demised premises, it should be lawful 
 for the lessor to re-enter ; it was held to be no for- 
 feiture of the lease, to cut down the trees except- 
 ed ; for that waste could only be committed of the 
 thing demised, and those trees being excepted out of 
 the demise, no waste could be committed of them, 
 and consequently no forfeiture, within the provi- 
 sion of the lease, could be incurred by cutting them 
 down. (6) 
 
 A covenant, " not to use or exercise, or permit or 
 suffer to be used or exercised, upon the demise pre- 
 mises, or any part thereof, any trade or business 
 whatsoever," is broken by an assignment to a school- 
 master, who kept his school upon the premises, (c) 
 
 A covenant that the lessee shall not exercise the 
 trade of a butcher upon the premises, is broken by 
 selling there raw meat by retail, although no beasts 
 were there slaughtered, (d) 
 
 A proviso for re-entry if the lessee shall permit 
 
 (a) Doe d. Lloyd v. Powell, 5 B. (c) Doe d. Bish v. Keeling, 1 M. 
 
 & C. 308. & S. 95. 
 
 (6) Goodright d. Peters v. Vivian, (</) Doe d. Gaskell v. Spry, 1 B. 
 
 8 East. 190. &A. 617.
 
 AS BETWEEN LANDLORD AND TENANT. 183 
 
 any person to inhabit the premises who should carry 
 on certain specified trades, (that of a licensed victual- 
 ler not being one,) or any other business that might 
 be, or grow, or lead to be offensive, or any annoy- 
 ance or disturbance to any of the lessor's tenants, 
 is not broken by the opening of a public-house upon 
 the premises, (a) 
 
 Where a lease contained a covenant "to insure and 
 keep insured a given sum of money upon the pre- 
 mises during the term, in some sufficient insurance 
 office," the covenant was interpreted, by reasonable 
 intendment, to mean insurance against fire ; and the 
 lessee, having insured the proper sum, but omitted to 
 pay the annual premium within the time allowed by 
 the office for payment, was held to have forfeited his 
 lease upon a clause of re-entry, although he paid 
 the premium within fourteen days after such time, 
 and no action had been commenced, and no ac- 
 cident had happened by fire to the premises, in 
 the mean time. (6) But where, in pursuance of a 
 similar covenant, the lessee effected an insurance 
 (the policy containing a memorandum, that in case 
 of the death of the assured, the policy might be 
 continued to his personal representative, provided 
 an indorsement to that effect was made upon it within 
 three months after his death), and died, and the re- 
 presentative, after the three months had expired, but 
 
 (a) Jones v. Thome, 1 B. & C. Reynolds v. Pitt, 2 Price, 206 212; 
 
 715. and Bracebridge v. Buckley, 2 Price, 
 
 (6) Doe d. Pitt v. Sherwin, 3 200. 
 Cainpb. 134; vide Rolfe v. Harris, and
 
 184 OF THE ACTION OF EJECTMENT 
 
 before ejectment brought, obtained the proper in- 
 dorsement, Lord Ellenborough, C. J. was of opinion 
 that the policy did not become void for want of the 
 indorsement within the three months, but at most was 
 only voidable by the company, and ruled, that no 
 forfeiture was incurred, (a) 
 
 A covenant in a lease to deliver up at the end 
 of the term all the trees standing in an orchard at 
 the time of the demise, " reasonable use and wear 
 only excepted" is not broken by removing trees de- 
 cayed and past bearing, from a part of the orchard 
 which was too crowded. (5) 
 
 A lease with a clause of re-entry, for non-perform- 
 ance of covenants, contained a general covenant on 
 the part of the lessee, to keep the premises in repair, 
 and also another independent covenant to repair, 
 within three months after notice ; the landlord, after 
 serving the tenant with a notice to repair forthwith, 
 was allowed to bring an ejectment within the three 
 months, for a breach of the general covenant to re- 
 pair, (c) But where on similar covenants, and with 
 a similar clause of re-entry, the landlord gave a 
 notice to repair within the three calendar months 
 from the date of the notice, it was held that he had 
 by such notice precluded himself from insisting on 
 the forfeiture until the expiration of the three 
 months, (d) 
 
 (a) Doe d. Pitt v. Laming, 4 (c) Roe d. Goatley v. Paine, 2 
 
 Campb. 76. Campb. 520. 
 
 (6) Doe d. Jones v. Crouch, 2 (d) Doe d. Morecraft c. Meux, 4 
 
 Campb. 449. B. & C. 606.
 
 AS BETWEEN LANDLORD AND TENANT. 185 
 
 The breaking of a door-way through the wall of 
 a demised house into an adjoining house, and keep- 
 ing it open for a long space of time, amounts to a 
 breach of covenant to repair, (a) 
 
 Where a lease contained a proviso for re-entry, 
 if the lessee committed waste to the value of 10/. 
 and the tenant pulled down some old buildings of 
 more than 10/. value, and substituted others of a 
 different description ; it was held that the waste con- 
 templated in the proviso was waste producing an 
 injury to the reversion ; and that it was a question 
 for the jury whether such waste had been commit- 
 ted, (b) 
 
 Where a lease, rendering rent, contained a cove- 
 nant that the lessee should not assign without leave of 
 the lessor, after which covenant was a proviso, that if 
 the rent should be in arrear, or if all or any of the 
 covenants thereinafter contained on the part of the 
 lessee, should be broken, it should be lawful for the 
 lessor to re-enter, and there were no covenants on 
 the part of the lessee after the proviso, but only a cove- 
 nant by the lessor, that the lessee paying rent, and per- 
 forming all and every the covenants thereinbefore 
 contained on his part to be performed, should quietly 
 enjoy ; it was held that the lessor could not re-enter 
 for breach of the covenant not to assign, the proviso 
 being restrained by the word " hereinafter" to subse- , 
 
 () Doe d. Vickery v. Jackson, (6) Doe d. Earl of Darlington r- 
 2 Stark. 293. Bond, 5 B. & C. 85 o.
 
 186 OF THE ACTION OF EJECTMENT 
 
 quent covenants; and although there were none such, 
 yet the Court could not reject the word, (a) 
 
 Where a beneficial long lease reserved to the lessee 
 the liberty to cut down and dispose of all timber, Sec- 
 then growing, or thereafter to grow during the term, 
 subject to the following proviso, that ivhen and so 
 often as the lessee should intend, during the term, to 
 fell timber, &c. he should immediately give notice in 
 writing to the lessor of such intention, who should 
 thereupon have the option of purchasing it, with a 
 power of re-entry, in case of a breach of this proviso, 
 and the lessee, soon after the execution of the lease, 
 (at that time intending bond fide to cut down the 
 whole of the then growing timber,) gave the proper 
 notice in writing to the lessor, who did not accept the 
 purchase, but disclaimed it ; the lease was not for- 
 feited, although the lessee did not forthwith fell all 
 the timber, &c. but proceeded to cut down the same 
 in different seasons at his own convenience, without 
 giving any fresh notices to the lessee, or his assignee, 
 to whom he had, previously to the last cuttings, con- 
 veyed his interest. (6) 
 
 Where a lease of certain waggon-ways was granted 
 to A. B. under the authority of an act of parliament, 
 in which, as well as in the lease, there was a proviso 
 for re-entry, in case he neglected in any one year 
 
 (a) Doe d. Spencer v. Godwin, intimated an opinion, that a court 
 
 4 M. & S. 265. of equity would probably, under 
 
 (i) Goodtitle d. Luxmore v. Sa- the circumstances, give the lessor 
 ville, 16 East. 87. Lord Ellen- or his assignee a new option to pur- 
 borough, C. J. and Le Blanc, J. chase.
 
 AS BETWEEN LANDLORD AND TENANT. 187 
 
 to bring a certain number ofcoah to C., for the use of 
 the inhabitants of L., and sell them there at a certain 
 price ; and by a subsequent act, the preamble of 
 which recited that the price was inadequate, and that 
 the inhabitants ofL. would sustain great inconvenience 
 if A. B. ceased to supply them with coals, it was 
 enacted, first, that the former act, confirming the 
 lease, (except such parts as were thereby altered or 
 repealed,) should continue; then that A. B. might 
 sell his coals brought to and deposited at (7., or at 
 any other place near thereto, to be used as a repo- 
 sitory/or coals instead thereof, at a certain increased 
 price; and another section provided, that if A. B. 
 neglected to bring the stipulated quantity of coals to 
 (7., or to such other place near thereto, to be used as 
 a repository for coals instead thereof, and sell them 
 there at the price fixed by the act, his interest in 
 the waggon-ways should cease : it was held, that 
 although the preamble did not recite an intention to 
 give A. B. the liberty to change the place used as a 
 repository for coals, and although it was not expressly 
 enacted that he might do so, yet that the intention of 
 the legislature to give him that privilege was clear, 
 and that he might do so without forfeiting his interest 
 in the waggon-ways ; because, in construing acts of 
 parliament, the Court must take into consideration, 
 Dot only the language of the preamble, or of any par- 
 ticular clause, but of the whole act ; and if in some of 
 the enacting clauses expressions are found of more 
 extensive import than in others, or than in the pre- 
 amble, the Court will give effect to those more exten- 
 sive expressions, if upon a view of the whole act, it
 
 188 OF THE ACTION OF EJECTMENT 
 
 appears to have been the intention of the legislature 
 that they should have effect, (a) 
 
 In all the cases above-mentioned, the tenancy was 
 created by deed ; but the principle is the same if the 
 tenant holds under an agreement for a lease, which 
 specifies the covenants to be inserted in the lease, 
 and that there shall be a power of re-entry for a 
 breach of them, (b) 
 
 By a memorandum of agreement, in consideration 
 of the rent and conditions therein after-mentioned, 
 A. was to have, hold, and occupy as on lease, certain 
 premises therein specified, at a certain rent per acre. 
 And it was stipulated) that no buildings should be 
 included or leased by virtue of the agreement ; and it 
 was further agreed and stipulated, that A. should 
 take at the rent aforesaid, certain other parcels, as the 
 same might fall in ; and lastly, it was stipulated and 
 conditioned that A. should not assign, transfer, or 
 under-let, any part of the said lands and premises 
 otherwise than to his wife, child, or children ; it was 
 held, that by the last clause a condition was created, 
 for the breach of which the lessor might maintain an 
 ejectment, (c) 
 
 But in an agreement to let, in which there was no 
 clause of entry, the following stipulation was held to 
 be a covenant, and not a condition operating in 
 
 (a) Doe d. By water v. Brandling, 6 Esp. 106. 
 
 7 B. & C. 643. (c) Doe d. Henniker v. Watt, 8 B. 
 
 (6) Doe c?. Oldershaw v. Breach, & C. 308.
 
 AS BETWEEN LANDLORD AND TENANT. 189 
 
 defeasance of the estate : " It is also hereby agreed, 
 " and clearly understood, that in case the said A. W. 
 (( or his heirs, executors, and assigns, should want 
 " any part of the said land to build or otherwise, or 
 " cause to be built, then the said T. R., or his heirs, 
 " executors, or assigns, shall and will give up that part 
 " or parts of the said lands as shall be requested by the 
 (t said A. W., by his making an abatement in propor- 
 " tion to the rent charged, and also to pay for so 
 " much of the fence, at a fair valuation, as he shall 
 tf have occasion from time to time to take away, by 
 <e his giving or leaving six months' notice of what he 
 " intends to do." (a) 
 
 Next, of the parties who may take advantage 
 by forfeiture of the breach of a covenant or con- 
 dition. 
 
 To enable a reversioner (6) to take advantage of a 
 forfeiture, it is necessary that he should have the 
 same estate in the lands at the time of the breach, as 
 he had when the condition was created; an ex- 
 tinguishment of the estate in reversion, in respect of 
 which the condition was made, extinguishing the con- 
 dition also, (c) Thus, where a lease was made for a 
 hundred years, and the lessee made an under-lease for 
 twenty years, rendering rent, with a clause of re- 
 entry, and afterwards the original lessor granted the 
 reversion in fee, and the grantee purchased the re- 
 
 (a) Doe d. Wilson v. Phillips, 2 the assignee of a reversion may 
 Bing. 13. sue, vide ante, 73. 
 
 (V) lor covenants upon which (c) Dumpor's case, 4 Co. 120,(6).
 
 190 OF THE ACTION OF EJECTMENT 
 
 version of the term ; it was holden that the grantee 
 should not have either the rent, or the power of re-en- 
 try, for the reversion of the term to which they were 
 incident was extinguished in the reversion in fee. (a) 
 
 The reversioner must also be entitled to the rever- 
 sion, at the time the forfeiture is committed, or he 
 cannot take advantage of it. (/>) 
 
 When the condition is, that the lessee will not do 
 any particular act without leave from his lessor, if 
 leave be once granted, the condition is gone for ever ; 
 for the condition is to be taken strictly, and by the 
 licence it is satisfied, (c) And, in like manner, when 
 a condition is entire, a licence to dispense with a part 
 of the condition is a dispensation of the whole. Thus, 
 where a lease was made to three, on condition that 
 they, nor any of them, should alien without licence of 
 the lessor, and the one by licence aliened his part, and 
 afterwards the other two without licence aliened their 
 parts, it was adjudged the lessor could not enter, for 
 the condition was dispensed with, (c) So likewise, 
 where the lease contains a clause, that the lessee shall 
 not assign without leave from his lessor, the lessee, 
 under a licence to assign part of the premises, may 
 assign the whole without incurring a forfeiture, (d} 
 But the licence must be such as is required by the 
 
 (a) Thre'r v. Barton, Moore, 94. 815. S. C. 4 Co. 119, (6). 
 
 Webb v. Russell, 3 T. R. 393. 402. (d) Roe d. Gregson v. Harrison, 
 
 (6) Fenn d. Matthews v. Smart, 2 T. R. 425. Seers v. Hind, 1 Vez. 
 
 12 East. 444. jun. 294. 
 
 (c) Dumpor v. Syms, Cro. Eliz.
 
 AS BETWEEN LANDLORD AND TENANT. 191 
 
 lease; and therefore, where the lease required the 
 licence to be in writing, a parol licence was held to be 
 insufficient, (#) 
 
 Provisoes for re-entry are also construed strictly 
 with respect to the parties who may take advantage 
 of them, and only include the persons who are ex- 
 pressly named. Thus, a power for C. to enter will 
 not extend to his executor, (b) And it seems also, that 
 if a lessee covenant with his lessor that he will not 
 assign, &c., a covenant so framed will not extend to 
 his executors or administrators, although if the exe- 
 cutors or administrators be mentioned in the clause, 
 they will be bound by it. (a} 
 
 So also, where a lease contained a covenant that 
 the lessee, his executors or administrators (without 
 mentioning assigns) should not under-let, and the 
 lessee became bankrupt, and his assignees assigned 
 the premises to a third person, who re-assigned to the 
 bankrupt, (having obtained his certificate,) who under- 
 let them ; it was held that the lessee having been dis- 
 charged of all his covenants by his bankruptcy, the 
 under-letting by him was in the character of assignee, 
 and therefore no forfeiture of the lease, (c) 
 
 A power of re-entry cannot be reserved to a 
 stranger ; (o?) and where, in a building lease, a trus- 
 tee and his cestui que trust were both demising par- 
 
 (a) Roe d. Gregson v. Harrison, waite, Willes, 500. 
 
 2 T. R. 425. Seers v. Hind, 1 Vez. (c) Doerf.Chere v. Smith. 1 Mars, 
 jun. 294. 359. 
 
 (b) Hassel </. Hodson v. Gowth- (d) Co.Litt. 214.
 
 19!2 OF THE ACTION OP EJECTMENT 
 
 ties, and the power of re-entry was reserved to both, 
 and the state of the title appeared in the recitals in 
 the lease, the Court, without argument, held the pro- 
 viso to be void, (a) 
 
 But where a lessee made an underlease containing 
 a proviso that the lessor and lessee might re-enter 
 for breach of covenant, it was held that the lessee 
 might alone maintain ejectment without joining the 
 lessor, (b) 
 
 And where a party, being possessed of a term of 
 years, demised his whole interest subject to a right of 
 re-entry on the breach of a condition, it was held 
 that he might enter for condition broken, although he 
 had no reversion, (c) 
 
 The forfeiture of a lease by breach of a covenant 
 or condition may be waived, in like manner as a 
 forfeiture for non-payment of rent, or a notice to 
 quit; that is to say, if the landlord do any act, with 
 knowledge of the breach which can be con- 
 sidered as an acknowledgment of a tenancy still 
 subsisting ; as, for example, if he receive rent accru- 
 ing subsequently to the forfeiture, (d ) unaccompanied 
 
 (a) Doe d. Barber v. Lawrence, caseofDoed.Scottv.Miller,2C.&P 
 
 4 Taunt. 23. seems very doubtful. The defendant 
 
 (6) Doe d. Bedford v. Wheeler, 4 held under a lease containing a clause 
 
 Bing, 276. of re-entry on breach of covenant 
 
 (c) Doe d. Freeman v, Bateman, to repair an ejectment was brought 
 2 B. & A. 158. on such clause of re-entry, and after 
 
 (d) Fox v. Swann, Styles, 482. proof being given of execution 
 Goodright d. Walter v. Davids, of the lease, and of the dilapidated 
 Cowp. 803. The authority of the state of the premises up to the day
 
 AS BETWEEN LANDLORD AND TENANT. 193 
 
 by circumstances which show a contrary inten- 
 tion, (a) 
 
 But a waiver of one forfeiture incurred by breach of 
 covenant, will not be a waiver of a second forfeiture 
 incurred by another breach of the same covenant; 
 nor where the breach is a continuing breach, will the 
 landlord be precluded from taking ad vantage of it, by 
 having received rent,&c. after the breach was originally 
 committed. Thus where a right of re-entry was re- 
 served on a breach of covenant not to underlet, it 
 was held that the lessor was entitled to re-enter upon 
 a second under-letting, although he had waived his 
 right so to do upon the first, (b] So also where the 
 forfeiture incurred was by using rooms in a house in 
 a manner prohibited by the lease, it was held that 
 such user was a continuing breach, and that the land- 
 lord might recover after receiving rent, provided the 
 user continued after such receipt, (c] So also where 
 a lease of coal-mines reserved a certain rent, and 
 contained a proviso that the lease should be void if 
 the tenant should cease working at any time two 
 years, and the tenant did cease working two years 
 
 of the trial ; the defendant put in a to quit necessary to determine the 
 
 written notice to the lessor to quit tenancy, nor could it be determined 
 
 at the end of six months from the by such notice. Best, C. J. held 
 
 date thereof, (which notice had not that the giving of such notice was 
 
 expired when the action was equivalent to the receipt of rent, and 
 
 brought,) describing the premises in operated as a waiver of the forfeiture 
 
 these terms " which you now hold until the time of its expiration. 
 
 of me as tenant from year to year. 1 ' (a) Ante, 149. 
 
 There was no proof that the lessor (b) Doe d. Boscawen v. Bliss, 4 
 
 had any knowledge of the state of Taunt. 735. 
 
 repair of the premises, at the time he (c) Doe d. Ambler v. Woodbridge, 
 
 gave the notice ; nor was a notice 9 B. & C. 376.
 
 194 OP THE ACTION OF EJECTMENT 
 
 and then paid rent, but did not resume the working, 
 it was held that this was a continuing breach, and 
 that ejectment might be maintained for the ceasing to 
 work after the payment of the rent, (a) 
 
 But in a case where a lease contained a covenant 
 to repair, with a right of re-entry, in case the lessee 
 should not repair within three months after notice, 
 and the landlord gave notice, and after the three 
 months had expired, received rent accruing after 
 such expiration, and then brought an ejectment, the 
 premises continuing out of repair, and the jury found a 
 verdict for the defendant, the Court of King's Bench 
 refused to set the verdict aside, notwithstanding the 
 opinion of Lord Kenyon, as expressed on the trial, 
 that the forfeiture had not been waived. And it 
 seems the jury were right, for the power to re-enter 
 was not given for breach of the general covenant to 
 repair, but " in case the lessee should not repair 
 within three months after notice ;" the receipt of rent 
 therefore after the expiration of the notice to repair 
 was a waiver of that notice, and consequently a 
 fresh notice was necessary to bring the party within 
 the penalty of the proviso, (b) 
 
 Where the defendant being the mortgagee of a 
 term, purchased the mortgagor's whole interest in 
 the premises, in consequence of the lessor's advice, 
 "to take to the premises, and finish the buildings," 
 given after a right of re-entry had accrued for the 
 non-completion of the buildings ; it was held, that the 
 
 () Doe d. Bryan v. Banks, 4 B. (V) Fryett d. Harris v. Jeffreys, 1 
 &A. 401. Esp.S93.
 
 AS BETWEEN LANDLORD AND TENANT. 195 
 
 lessor's right of re-entry was not thereby waived, but 
 suspended only for such reasonable time after the 
 purchase, as might be required to complete the 
 buildings, and that ejectment might be maintained for 
 the forfeiture after that time had elapsed, against the 
 purchaser, who had proceeded in part to finish, but 
 had never wholly completed the buildings, or put 
 them in a habitable state, (a) 
 
 A lease contained a covenant on the part of the 
 lessee, to insure the premises in the joint names of 
 himself and the lessor, and in two-thirds of the value 
 of the premises demised. Both parts of the lease 
 continued in the possession of the lessor, and an ab- 
 stract only was delivered to the lessee, in which it 
 was stated, that the tenant was to insure the pre- 
 mises in two-thirds of the value, but it was not 
 stated in whose name or names the policy was to be 
 effected. The lessee insured in his own name only, 
 and, as was contended, to a less amount than two-thirds 
 of the value of the premises, but to the same amount 
 as the lessor had himself insured the premises during 
 two years of the lease, when the lessee had been in em- 
 barrassed circumstances. Lord Tenterden, C. J. ruled 
 that although there was no dispensation or release 
 from the covenant, yet that if the conduct of the lessor 
 of the premises had been such as to induce a reason- 
 able and cautious man to believe, that he would do all 
 that was necessary or required of him, by insuring 
 in his own name, and to the amount proved, he could 
 not proceed against his lessee for a forfeiture ; and 
 
 (a) Dee d. Sore v. Ekins, 1 R. & M. 29. 
 
 o2
 
 196 OF THE ACTION OF EJECTMENT 
 
 he left to the consideration of the jury, the question 
 whether such had been the conduct of the lessor : the 
 jury found a verdict for the defendant, (a) 
 
 A landlord will not lose his right to re-enter, by 
 merely lying by, (however long the period,) and wit- 
 nessing the act of forfeiture ; but it seems, that if with 
 full knowledge thereof, he permits the tenant to 
 expend money in improvements, it is a circumstance 
 from which the jury may presume a waiver, as well as 
 ground for application to a court of equity for re- 
 lief. (6) 
 
 It seems scarcely necessary to observe, that no act 
 of the landlord will operate as a confirmation of a 
 lease, rendered voidable by a breach of covenant, un- 
 less he had full notice, at the time of such act, that 
 the forfeiture had been committed, (c) 
 
 Before quitting this branch of our subject, it is ne- 
 cessary to notice a material distinction which pre- 
 vails between leases for lives, and leases for years, 
 as to the consequences of a forfeiture upon the 
 breach of a condition, where the lease is declared 
 " to be null and void? or " to cease and determine, 
 &c." upon the breach of the condition, instead of 
 being expressed in the common form, " that it shall 
 and may be lawful for the lessor, in such case, to re- 
 enter? In leases for lives, whatever may be the 
 
 (a) Doe d. Knight v. Howe, 1 R. Taunt. 78. 
 
 & M. 343. (c) Roe d. Gregson v. Harrison, 
 
 'b} Doe d. Sheppard v. Allen, 3 2 T. R. 425.
 
 AS BETWEEN LANDLORD AND TENANT. 
 
 words of the condition, it is in all cases held, that if 
 the tenant be guilty of any breach of it, the lease 
 is voidable only, and not void ; and therefore not 
 determined until the lessor re-enters. Because when 
 an estate commences by livery, it cannot be deter- 
 mined before entry ; and consequently, if the lessor do 
 any act which amounts to a dispensation of the breach, 
 the lease, which before was voidable only, is thereby 
 affirmed, and the forfeiture waived. But when a con- 
 dition of the import of those first above-mentioned 
 is inserted in a lease for years, if the lessee be guilty 
 of any breach of it, the lease becomes absolutely void, 
 and determined thereby ; and cannot be again set up 
 by any subsequent act of the lessor. But if the con- 
 dition be " that it shall and may be lawful for the 
 lessor to re-enter," or " that the term shall cease and 
 determine, if the lessor please," (a) or the like, 
 the lease will be only voidable by a breach of the 
 condition ; and the forfeiture may be waived by 
 a subsequent acknowledgment of a tenancy, in 
 the same manner as in all cases of leases for 
 lives, (b) 
 
 These distinctions however do not exist, when the 
 forfeiture accrues by reason of the non-performance 
 of a covenant, instead of the breach of a condition 
 In all cases of this nature, whatever may be the words 
 of the proviso, leases for lives and leases for years 
 are governed by the same principles, and a forfeiture 
 
 (a)Doed. Bristowr. Old, K. B. (6) Co. Litt.215, (o). Pennant's 
 Sittings after T. T. 1814. M. S. case, 3 Co. 64, 65.
 
 198 OF THE ACTION OP EJECTMENT, &C. 
 
 may be enforced, or the lease confirmed, at the option 
 of the lessor, (a) ^JJUL-UL 
 
 A proviso in a lease to re-enter for a condition 
 broken, operates only during the term, and cannot be 
 taken advantage 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 entering upon the 
 land, after the determination of the estate, for the 
 purpose of carrying off the emblements, that the 
 plaintiff' having never been in possession by right of 
 re-entry for condition broken, could have no ad- 
 vantage thereof, and that the defendant, who ploughed 
 and sowed the land, was entitled to take the emble- 
 ments. () 
 
 (a) Rede v. Fair, 6 M. & S. 121. C. 519. 
 
 Doe d. Bryan v. Bancks, 4 B. & A. (b) Johns v. Whitley, 3 Wils. 
 401. Arnsby v. Woodward, 6 B. & 127.
 
 199 
 
 CHAPTER VI. 
 
 Of the Ancient Practice ; and the Cases in which it 
 is still necessary. . 
 
 Tl * 
 
 WHEN the remedy by ejectment is pursued in an 
 inferior court, the fictions of the modern system are 
 not applicable, 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, (a) When also 
 the premises are vacated, and wholly deserted by the 
 tenant, and his place of residence is unknown, () 
 the modern practice, for reasons which will be noticed 
 
 (a) The King v. Mayor of Bris- 38.) 
 
 tow, 1 Keb. 690. Sherman v. Cocke, (6) Strict proof of this fact will 
 
 1 Keb. 795. It is said by Gilbert, be required ; and if it appear, that 
 
 C.B. that if the defendant in an in- the premises were not wholly de- 
 
 ferior court, enter into a rule to serted, or that the plaintiff's lessor 
 
 confess lease, &c. and the cause be knew where the tenant lived, a judg- 
 
 removed, and the judge of the in- men t obtained by means of the an- 
 
 ferior court grant an attachment cient practice will be set aside. A 
 
 against the defendant for disobedi- very little matter has been held suf- 
 
 ence to the rule, the superior court ficient to keep possession, such as , 
 
 will grant an attachment against leaving beer in a cellar, or hay in a 
 
 thejudge, for exceeding his, autho- barn. (Savage v. Dent, Stran. 1064.) 
 
 rity, and obstructing the course of Jones d. Griffiths v. March, 4 T. R. 
 
 the superior court. (Gilb. Eject. 464.)
 
 200 OF THE ANCIENT PRACTICE. 
 
 in a subsequent chapter, (a) cannot be adopted. 
 When, therefore, the party brings his action in a 
 superior court, the possession being vacant, (6) and 
 the lessor's abode unknown, and when he is desirous 
 of trying his title in a court of inferior jurisdiction, 
 all the forms of the ancient practice must be ob- 
 served : 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 land before 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 per- 
 son (c) 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 premises, and eject B. therefrom, and 
 having done so, must remain upon them, whilst B. 
 delivers to him a declaration in ejectment, founded 
 upon the demise contained in the lease; and in all 
 respects like the declaration in the modern proceed- 
 ings, (d) 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 JB.'s attorney, and 
 addressed to C., requiring him to appear and plead 
 
 (a) Chap. VII. ordered, " that for the prevention 
 
 (6) Appendix, No. 7. of maintenance and brocage, no at- 
 
 (c) Attornies form an exception torney shall be lessee in an eject 
 
 to this statement ; for, by the rules ment." 
 
 of B. R. and C. B. (M.T. 1654.) it is (d) Appendix, No. 12.
 
 OF THE ANCIENT PRACTICE. 201 
 
 to the declaration, and informing him that if he 
 do not, judgment will be signed against him by 
 default, (a) 
 
 When the landlord, or person claiming title, does 
 not wish to go through this ceremony himself, he 
 may execute a power of attorney, authorizing another 
 to enter for him ; (6) and the proceedings are then 
 the same as if he himself entered. But it must be 
 remembered, that if it be necessary, when the an- 
 cient 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 can- 
 not constitute an attorney, (c) 
 
 When the ancient practice is resorted to, the suit 
 must proceed in the name of the casual ejector, and 
 if the proceedings 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 eject- 
 ment against him to try the title, (d) 
 
 When the proceedings are in the King's Bench, an 
 affidavit must be made (e) of the sealing of the lease, 
 
 (a) Appendix, No. 8. Noy. 133. Sed vide Hopkins's case, 
 
 (b) 2 Sell. Prac. 131. Appendix, Cro. Car. 165. Gardiner . Nor- 
 Tsos. 5 and 6. man, Cro. Jac. 617. 
 
 (c) Wilsou v. Rich, 1 Yelv. I (d) Ex parte Beauchamp and 
 S. C. 1 Brown, 134. Plomer v. Burt. Barn. 177. B. N. P. 96. 
 Ilockhead, 2 Brown, 248. S. C. (e) Appendix, No. 9.
 
 202 OF THE ANCIENT PRACTICE. 
 
 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, (a) 
 
 In the Common Pleas, this affidavit and motion are 
 unnecessary, and instead of them a rule to plead must 
 be given on the first day of term, as in other actions, 
 and if there be no appearance and plea at the expira- 
 tion of the rule, judgment may be signed, (b) 
 
 It is immaterial, as far as the forms of sealing the 
 lease, &c. are concerned, whether the action be com- 
 menced in a superior, or inferior court ; but the sub- 
 sequent proceedings in inferior courts must of course 
 depend upon the general 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 proceedings, 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 conse- 
 quence of a rule made for that particular purpose; (c) 
 but it certainly is more prudent to conform to the ge- 
 neral practice in this respect, and the notice need not 
 to be given until after the entry, and execution of the 
 lease, (d) 
 
 The defendant is entitled to remove an ejectment 
 
 () Smartley v. Henden, 1 Salk. (c) Ante, 13. 
 255. 2 Sell. Prac. 131. (<f) 1 Lill. Pr. Reg. 675. 
 
 (6) 2 Sell. Prac. 131.
 
 OF THE ANCIENT PRACTICE. *203 
 
 from an inferior to a superior court, either by writ of 
 certiorari, (a) or of habeas corpus ; (b) and when 
 removed, the tenant in possession is entitled to the 
 same privilege of confessing lease, entry, and ouster, 
 and defending the action, as if the plaintiff had 
 originally declared in the superior court, (c) The 
 superior court also will not grant a procedendo 
 when a cause has been so removed, if there be reason 
 for believing that an impartial trial cannot be had 
 in the inferior court, or upon other special grounds ; 
 and it is to be inferred from the reasoning of the 
 judges in the only modern case upon the subject, 
 that a writ of certiorari is a matter of course, and 
 that a procedendo will in no case be granted, (d} 
 
 When the lands lie partly within, and partly with- 
 out, the jurisdiction of the inferior court, the defend- 
 ant cannot plead above the jurisdiction of such in- 
 ferior court, because the demise is transitory, and 
 may be tried anywhere, (e) 
 
 As the plaintiff, in the ancient practice, is a person 
 actually 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 deprived 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 
 
 (a) Doe d. Sadler v. Dring, 1 B. (c) Gilb. Eject. 37. 
 
 & C. 253. (rf) Patterson d. Gradridge v. 
 
 (6) Highmore v. Barlow, Barn. Eades, 3 B. & C. 550. 
 
 421. Allen v. Foreman, 1 Sid. 3 13. (<) Hall u. Hughs, 2 Keb. 69.
 
 204 OP THE ANCIENT PRACTICE. 
 
 been the person ; and it has also been held to be a 
 contempt of the Court, to assign for error the nominal 
 plaintiff's death, (a) 
 
 In like manner, before the introduction of the 
 modern practice, it was said, that if the plaintiff re- 
 leased 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 ; 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. () 
 
 The casual ejector is also in the ancient practice a 
 real person, but the court will not allow him to con- 
 fess judgment; and where, upon proceedings on a 
 vacant possession, the casual ejector gave a warrant 
 of attorney for this purpose, the Court set the judg- 
 ment aside, (c) 
 
 Where an action of ejectment, and an action of as- 
 sault 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, (d) 
 
 (a) Addison v. Sir John Otway, v. Brewer, 4 M. & S. 300. 
 
 1 Mod. 250 52. Moore v. Good- (c) Hooper v. Dale, Stran. 531. 
 
 right, Stran. 899. (d) Bird v. Snell, Hob. 249 ; et 
 
 (ft) Peto v. Checy, 2 Brown, 128. vide Gilb. Eject. 52. 
 Anon. Salk. 260. Vide Doe d. Byne
 
 CHAPTER VII. 
 
 Of the Declaration in the Modern Action of Eject- 
 ment , 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 inde- 
 pendent 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 frequently 
 been called a child and creature of the court. 
 
 To enable a party claiming title to lands, to take 
 advantage of the modern method of bringing an eject- 
 ment, it is necessary, as has been already observed, (a) 
 that a person should be in possession of the premises 
 in question ; that is to say, that they should not be 
 vacated and altogether deserted ; (6) or at least (sup- 
 posing them to be so deserted) that the residence of 
 
 (a) Ante, 199. Jones </. Griffiths v. Marsh, 4 T. R. 
 
 (6) Savage v. Dent, Stran. 1064. 464.
 
 206 OF THE DECLARATION. 
 
 the last tenant be not unknown to the claimant, (a) 
 This arises from a particular regulation of the modern 
 practice, which requires an affidavit of the service of 
 a declaration in ejectment upon the tenant in posses- 
 sion, 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 
 ejectment may always proceed, in the superior courts, 
 by the modern method. 
 
 The suit is commenced by the delivery of the de- 
 claration against the casual ejector, to the tenant 
 in possession ; 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 declara- 
 tion is, in fact, in itself a kind of writ, or process ; 
 and is the only means by which the party in posses- 
 sion is informed of the claim set up by the lessor and 
 required to appear and defend his title, (b) 
 
 
 
 The declaration, when the proceedings are in the 
 King's Bench, may be framed to answer either to an 
 action commenced by bill, or by original, but the 
 
 (a) Exceptions to this general rule so far considered a process of the 
 are created, in particular cases, by Court, that the Court will punish as 
 the provisions of the statutes 4 Geo. a contempt any improper conduct 
 II. c 28; 11 Geo. II. c. 19. Vide of the tenant at the time of its de- 
 ante, 163. 175. livery. Rex v. Unitt, Stran. 567. 
 
 (6) A declaration in ejectment is
 
 OP ENTITLING THE DECLARATION. 
 
 latter is the preferable 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 declara- 
 tion is, of coarse, always framed as if the proceedings 
 were by original, (a) 
 
 The declaration should regularly (except in the 
 cases mentioned in the stat. 1 W. IV. c. 70. s. 36) 
 be entitled of the term immediately preceding the va- 
 cation in which it is delivered ; but if it be not entitled 
 of any term, or of a wrong term, it will be immaterial 
 provided the tenant has sufficient notice given him 
 therein to appear to the action. Thus declarations 
 have been upheld entitled Michaelmas term, 54 G. 
 III., instead of 55 G. HI.; (b) Trinityterrn, 56G.IIL, 
 instead of 55 G. III.; (c) Hilary instead of Michael- 
 mas term, (c?) and Michaelmas instead of Easter 
 term ; (e) the notices to appear being correct, and the 
 declarations delivered at the proper times ; and where 
 the declaration was delivered before the essoign day 
 of Hilary term, and the notice at its foot was dated 
 January 1, 1818, and was to appear within the four 
 6rst days of the next term, it was held sufficiently 
 certain, although not entitled at all. 
 
 When the title of the lessor of the plaintiff ac- 
 
 (o) Appendix, Nos. 12. 14. 15. (d) Anon. 2 Chitty, 172. 
 
 (6) Goodtitle d. Ranger v. Roe, 2 (e) Anon. 2 Chitty, 173. 
 
 Chitty, 172 . (/) Goodtitle d. Price v. Badtitle, 
 
 (c) Doe v. Greaves, 2 Chitty, H. T. 1818. K. B., MS. 
 172.
 
 208 OP ENTITLING THE DECLARATION. 
 
 crues after the essoign day of an issuable term, and 
 the ejectment is founded on stat. 1 W. IV. c. 70. s. 
 36, the declaration against the casual ejector must be 
 specially entitled of the day next after the day of the 
 demise in such declaration, whether the same shall be 
 in term or vacation ; but in all other cases the de- 
 claration against the casual ejector may be entitled of 
 a term anterior to the day of the demise. This is 
 strikingly dissimilar from the practice in all other 
 actions. The demise stated in the declaration, is the 
 title upon which the plaintiff is supposed to enter, and 
 the ouster the supposed wrong for which the action is 
 brought. The plaintiff has consequently no cause of 
 action antecedently to the day of the ouster; which 
 must be subsequent to the day of the demise, and ac- 
 cording to the general rules of pleading, could not 
 entitle his declaration anterior to that time. But the 
 casual ejector 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 vaca- 
 tion time, and the declaration against the casual 
 ejector be entitled of the preceding term, it will be 
 sufficient ; because, if the party in possession de- 
 fend the action, the declaration against him (as will be 
 explained hereafter) will be entitled of the subsequent 
 term; and if he leave the suit undefended, judgment 
 will be taken out against the casual ejector, (a) 
 
 (a) Imp. K. B. 642. 1 Lil. Prac. Vent. 174. 
 Reg. 680. Tunstall v. Brend, 2
 
 OP THE DEMISE. 209 
 
 The venue in ejectment is local, and confined to 
 the county in which the lands are situated, (a) 
 
 The demise declared upon by the plaintiff, in the 
 modern practice, is fictitious only ; but still it must 
 be consistent 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 en- 
 able each of them to demise the whole ; because if 
 any one 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 declared upon the lease as a joint demise, it was 
 held bad $ because, during J.'s life, it was the lease 
 of A., and the confirmation of B. t and after the death 
 of A., it was the lease of B., and the confirmation of 
 A., but not a joint demise, (b} 
 
 Joint tenants, or parceners, have a sufficient in- 
 terest in the lands held in joint tenancy, or parcenery, 
 to entitle them to make a joint demise of the whole 
 premises, but tenants in common have not : and the 
 reason for this difference seems to be, that tenants in 
 common have several and distinct titles and estates, 
 independent of each other, so as to render the free- 
 hold several also ; whilst joint tenants and parceners 
 
 (a) Anon. 6 Mod. 222. Mostyn (V) King t>. Bery, Poph. 57. 
 v. Fabrigas, Cowp. 161. 176. Treport's case, 6 Co. 75, (6). 
 
 P
 
 210 OP THE DEMISE. 
 
 are seized 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, (a) 
 
 It is not, however, compulsory upon joint tenants, 
 or parceners, to allege a joint demise ; for if a joint 
 tenant, or parcener, bring an ejectment without join- 
 ing his companion in the demise, it is considered as 
 a severance of the tenancy, and he will be allowed to 
 recover his separate moiety of the land. And if all 
 the joint tenants, or parceners, join in the action, but 
 declare upon separate demises by each, it is held that 
 they may recover the whole premises ; because, by the 
 several demises, the plaintiff has the entire interest 
 in the whole subject matter, although the joint te- 
 nancy is severed by the separate letting. (6) 
 
 When two, or more, tenants in common are lessors 
 of the plaintiff, a separate demise must be laid by 
 each ; (c) or they must join in a lease to a third per- 
 son, 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 declaration need not 
 state the several demises to be of the several shares 
 belonging to the several tenants respectively; but 
 
 (a) Moore v. Fursden, 1 Show. (6) Doe d. Gill v. Pearson, 6 
 
 342. Millenerv. Robinson, Moore, East. 173. Roe d. Raper v. Lons- 
 
 682. Boner v. Juner, Ld. Raym. dale, 12 East. 39. Doe d. Marsack 
 
 726. Mantle v. Wellington, Cro. v. Read, 12 East. 57. Doe d. Lul- 
 
 Jao. 166. Morris v. Barry, 1 Wils. ham v. Fenn, 3 Campb. 190. 
 
 1. Heatherly d. Worthington v, (c) App. No. 14, 15. 
 Weston, 2 Wils. 232.
 
 OF THE DEMISE. 211 
 
 eacli 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, (a) 
 
 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 con- 
 cerned in interest, (b) 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 de- 
 claration, under which they may be able to prove a 
 title to the premises. Difficulties of this nature fre- 
 quently occur when trustees are lessors of the plaintiff; 
 and it is always advisable to lay separate demises by 
 the trustees, and cestui que trust, unless the eifect of 
 the statute of uses upon the trust is most clear and 
 indisputable. But application should in strictness 
 be first made to such trustees for permission to make 
 use of their names ; and where demises are inserted 
 in the names of any parties without their authority, 
 the Court on motion will order such demises to be 
 struck out of the declaration, (c) unless the justice of 
 the case requires their insertion, and a sufficient in- 
 demnity is given ; and they will also interfere to set 
 aside proceedings after verdict under similar circum- 
 stances, if the application be bond fide, and the affi- 
 davit on which it is grounded distinctly and unequi- 
 vocally show the want of such authority, (d) But 
 where a bankrupt laid a demise by his assignees 
 
 (a) Doe d. Bryant v. Wippel, 1 Chitty, 171. 
 
 Esp. 330. (rf) Doe d. Hammcck v. Fellis, 9 
 
 (fr) App. No. 14, 15. Chitty 170. 
 
 (c) Doe d. Shepherd v. Roe, 2
 
 '2V2 OF THE DEMISE. 
 
 without their permission (they having given upon 
 him the property in the premises) and obtained judg- 
 ment and execution thereupon, the court refused to 
 set the proceedings aside at the instance of the de- 
 fendant in the ejectment) notwithstanding an affidavit 
 from one of the assignees that he knew nothing of the 
 premises in question; considering the application 
 a mere contrivance for defeating the action, (a) 
 
 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; 
 for if the lessor have not a right to enter, he cannot 
 have a right to demise the lands, and consequently the 
 plaintiff must be nonsuited at the trial, for his lessor 
 cannot be supposed to have made an illegal demise, (b) 
 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 accruing subsequently 
 to the day of the demise ; (c) and when 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 de- 
 scent, 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 
 
 (a) Doe d. Vine v. Figgins, 3 way, v. Herbert, 4 T. R. 680. 
 Taunt. 440, (c) Aislin v. Parkin, Burr. 665. 
 
 (6) Ante, 11. Goodtitle d. Gallo-
 
 OP THE DEMISE. 213 
 
 make a lease at seven, which would be a good lease.(a) 
 It seems also, according to Lord Hardwicke, that a 
 posthumous son, taking lands under the provisions 
 of 10 and 11 Wm. III. c. 16, would be entitled 
 to lay the demise, from the day of his father's 
 death, (b) 
 
 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, pro- 
 vided the surrenderee be admitted before trial, (c) 
 
 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 bankrupt, upon a demise subsequently 
 to the act of bankruptcy, but before the date of the 
 bargain and sale by the commissioners ; for the free- 
 hold remains in the bankrupt, though not beneficially, 
 until taken out by him of the conveyance, (d) 
 
 When an ejectment is founded on stat. 4. Geo. II. 
 c. 28. s. 2., the day of the demise must be subsequently 
 to the last day on which the rent is payable to save 
 the forfeiture, and prior to the day on which the 
 declaration is delivered, (e) 
 
 (a) Roe d. Wrangham . Her- (d) Doe d. Esdaile v. Mitchell, 'Z 
 sey, 3 Wils. 274. M.& S. 446. tt vide. Doe d. What- 
 
 (b) B. N. P. 105. ley v. Telling, 2 East. 256. 
 
 (c) Ante, 64. Doe d. Benniugtou (e) Doe d. Lawrence v. Shawcross, 
 w. Hall, 16 East. 208. 3 B. & C. 752. Ante, 162.
 
 214 OF THE DEMISE. 
 
 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, (a) 
 
 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 possession is demanded, that is to say, subse- 
 quently to the determination of the will, (b) 
 
 When an ejectment is brought against a tenant 
 from year to year, the commencement of whose te- 
 nancy is unknown, and no presumptive proof of the 
 time of such commencement can be obtained, (c) 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. 
 
 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 claimant, and may be of longer duration than 
 his interest in the land, (d) 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 
 
 (a) Berington d. Dormer v. Park- (c) Vide post, Chap. 10. 
 hurst, And. 125. S. C. Stran. 1086. (d) Doe d. Shore ' v. Porter, 3 
 
 S. C. Willes. 327. S. C. 13 East. 489. T. R. 13. 
 
 (6) Ante, 106.
 
 OP THE DEMISE. 215 
 
 the term declared on be of greater duration than the 
 lessor's title, as, for instance, if the lessor be entitled 
 to the lands for three years only, and the plaintiff de- 
 clare on a demise for five, he would wrongfully hold 
 the lands for the last two years, (a) But this doctrine 
 has since been very correctly over-ruled ; 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 adrnitted_as evidence of the lessor's, j 
 title, he cannot by reason of it be enabled to keep 
 possession after the month has expired, (b] 
 
 Seven years is the term usually declared upon j 
 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 recovering possession of the 
 land before its expiration ; although the courts are 
 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, 
 they should execute a power of attorney, authorizing 
 some person to enter and make a lease on the lands ; 
 that such person accordingly should enter, and make 
 a lease under seal ; and that the declaration should 
 state the demise to be by deed, (c) These forms, it 
 
 (fl) Roe v. Williamson, '2 Lev. 140. 1 Mod. 10. 
 S. C. 3 Keb. 490. (c) Gilb. Eject. 35. 
 
 (/) B. N. P. 106. Clerke v. Rowell,
 
 216 OP THE DEMISE. 
 
 seems, were deemed necessary upon the principle, 
 that a corporation aggregate cannot perform any cor- 
 porate 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 attorney to enter into a rule for 
 their costs ; nor would an attachment 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 un- 
 derstood, 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 signed, (a) or any statement of such a lease 
 being introduced into the declaration. One case only 
 is indeed to be found upon the latter point, and in 
 that the question arose after verdict; (fr) 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 plaintiff in 
 ejectment would never be non suited for the omis- 
 sion of such a statement, (c) The demise is still 
 certainly sometimes stated to be by deed; and it 
 is immaterial whether it be so or not, as, notwith- 
 
 (a) Furley d. Mayor of Canter- form, and many objections were 
 
 bury v. Wood, 1 Esp. 198. taken upon other points by the dc- 
 
 (6) Partridge v. Ball, Ld Raym. fendant's counsel, and overruled ; 
 
 136. S. C. Carth. 390. but they never adverted to the cir- 
 
 (c) In the case of Doe d. Dean cumstance of the demise not being 
 
 and Chapter of Rochester v. Pierce, stated to be by deed. Kent, (Sum. 
 
 the demise was in the common Ass. 1809, MS.)
 
 OF THE DEMISE. 
 
 standing the statement, no proof of the deed is re- 
 quired, (a) 
 
 If a corporation be aggregate of many, they may 
 set forth the demise in the declaration, without men- 
 tioning 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 reason 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 without men- 
 tioning his name. () 
 
 In a case where the demise was laid to be by the 
 Mayor, &c. of the borough town of Maldon, and the 
 name of the Corporation as appeared from the charter 
 was the Mayor, &c. of M aldon, it was held to be no 
 variance, it appearing from the charter, which was in 
 evidence, that Maldon was a borough town, (c] 
 
 In the case of Swadling v. Piers, (d) it was ruled, 
 that in an ejectment for tithes, the plaintiff must de- 
 clare on a demise by deed, because tithes cannot pass 
 but by deed ; but this decision has since been over- 
 ruled, and the statement of a deed seems even in this 
 case to be no longer necessary, (e) 
 
 It seems also to have been holden, that on a de- 
 
 (a) Furley d. Mayor of Canter- v. Miller, 1 B.&A.699. 
 
 bury o. Wood, 1 Esp. 198. (</) Cro. Jac. 613. 
 
 (6) Carter v. Cromwell, Sav. 128, (e) Partridge v. Ball, Ld. Kayin. 
 
 cited Dyer, 86. 136. S.C.Carth.390. 
 
 (c) Doe d. Mayor, &c. of Maldon
 
 218 OF THE DEMISE. 
 
 inise by the master and fellows of a college, dean and 
 chapter of a cathedral, master or guardian of an hos- 
 pital, parson, vicar, or other ecclesiastical person, of 
 any lands, &c. the declaration should state that there 
 was a rent reserved, &c. pursuant to the statute 13 
 Eliz. c. 10; but this form cannot now be necessary, (a) 
 
 A similar doctrine was once applied to the case of 
 an infant ; (6) but it has been long settled, that an 
 infant may make a lease without rent to try his title, (c) 
 When, however, 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 
 expense of giving security for the costs, which he 
 would otherwise be compelled to do. (cT) 
 
 It is not necessary to state, in the declaration , that 
 the premises are situated in a parish, hamlet, &c. it 
 is sufficient to mention the name of the place in which 
 they are situate, without also describing it by the 
 name of its ecclesiastical or civil division, (e) 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 cer- 
 tain.^) When, however, the premises are described 
 
 (a) Carter v. Cromwell, Sav. 129. (e) Goodtitle d. Bembridge v. 
 
 (6) Lill. Prac. Reg. 673. Walker, 4 Taunt. 671. 
 
 (c) Zoucht;. Parsons, Burr. 1794. (f) Goodright d. Smallwood v. 
 
 1806. Strother, Black. 706. The declara- 
 
 (</)Nokev. Windham, Stran.694. tion in this case stated, that one 
 
 Anon. 1. Wils. 130. M. S. -"at Haswcll in the county of
 
 OF THE DEMISE. 219 
 
 as lying in a parish, hamlet, &c. such description 
 must be a correct one, and an uncertain or improper 
 description will be fatal. Thus, in an ejectment for 
 lauds, "in the parishes of A. and B. or one of them," 
 the judgment was arrested for the uncertainty, al- 
 though it appeared that the parties had originally 
 been one, and lately been divided by an act of par- 
 liament, and that the boundaries were not settled, (a) 
 But if the words ( ' or one of them" had been omitted, 
 it seems the description would have been sufficient, 
 though all the lands were contained in one of the 
 parishes. (6) 
 
 Where the premises were described as situate t( in 
 the united parishes of St. Giles in the Fields, and St. 
 George Bloomsbury, and it appeared that those two 
 parishes were united together by act of parliament, 
 
 B." demised to plaintiff two mes- was " precisely of the tenth part 
 suages, from which messuages de- of an entire thing ;" though it was 
 fondant at Haswell aforesaid ousted said by the Court, that if the eject- 
 plaintiff; and the court considered, ment had been of an acre of land 
 that the statement of the ouster in D. and I'., and it appeared that 
 being at Haswell, amounted to a the whole acre was in D., it would 
 sufficient certainty that the lands be well enough. The reason for 
 demised lay at Haswell. this diversity seems to be, that the 
 
 (a) Goodright v. Fawson, 7 Mod. acre being the whole thing de- 
 
 457. S. C. Barn. 184. Cottingham manded, the description is suffi- 
 
 v. King, Burr. 624, and the au- ciently certain, although it all be 
 
 thorities there cited. in one parish ; whereas, when only 
 
 (6) Goodwin v. Blackmail, 3 Lev. a tenth part is demanded, it is un- 
 
 334. In this case the ejectment certain which tenth part is meant, 
 
 was " for a tenth part of a mes- and, therefore, as no tenth part 
 
 suage in D. and F." and the whole answers the description, the sheriff 
 
 messuage appearing in evidence to could not give execution ; tamen 
 
 lay in D., and no part in F., the de- qtttere et vide Burr. 330, et ante, 
 
 scription was held ill, because it 22.
 
 220 OP THE DEMISE. 
 
 for the maintaining of their poor, but for no other 
 purpose, the variance was held fatal ; for by the de_ 
 scription, 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, (a) 
 But where the premises were described as situate in 
 the parish of West Putworth and Bradworthy, and 
 it appeared that West Putworth and Bradworthy 
 were separate parishes, the Court held the description 
 to be sufficiently certain, rejecting the word parish 
 as surplusage, and considering the demise as of lands 
 in West Putworth and Bradworthy. (b) And where 
 the premises were laid to be at the parish ofFarnkam, 
 and were proved at the trial to be in the parish of 
 Farnham Royal, it was held not to be a fatal va- 
 riance, unless it could be proved that there were two 
 Farnhams. (c) Where also the premises were de- 
 scribed as being in the parish of Westbury, and it was 
 proved that there were two parishes of Westbury, 
 viz. Westbury on Trym, and Westbury on Severn, 
 the description was holden to be sufficiently certain.(oT) 
 
 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 enume- 
 rate them once only, describing them as lying in the 
 
 (a) Goodtitle v. Pinsent d. Lam- (c) Doe d. Toilet v. Salter, 13 
 miman, 2 Campb. '274. S. C. 6 East. 9. 
 
 Esp. 128. (d) Doe d. James v. Harris, 5 
 
 (b) Goodtitle d. Brembridge v. M.& 8.326. 
 Walter, 4 Taunt. 671.
 
 OF THE ENTRY. 
 
 parishes of A. and B., or in A. and B. respec- 
 tively, (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 number, as a hundred messuages, a thousand 
 acres of arable land, &c. ; and care should be taken 
 that the number specified 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, (b) Upon the same prin- 
 ciple, if the lessor of the plaintiff be entitled to a 
 moiety, or other part, of an entire thing, as the half, 
 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 par- 
 ticular day, although in the precedents it is usually so 
 stated. It is sufficient if it be declared generally, 
 that the plaintiff entered by virtue of the demise : nor 
 does it seem to have been required, even in the an- 
 cient practice, to be more explicit, because, as the 
 plaintiff entered by virtue of the lease, he must neces- 
 
 (a) 2 Chitty, Prec. 395. bounds be described in the declara- 
 
 (i) Denn d. Burgis v. Purvis, tion, and the jury find the defend- 
 
 Burr. 326. Guy v. Rand, Cro. ant guilty in half an acre of land, 
 
 Eliz. 13. the verdict will be bad ; because of 
 
 (f) Ablett v. Skinner, 1 Siderf. the uncertainty of which part, or 
 
 229. Goodwin v. Blackman, 3 Lev. moiety, the plaintiff is to have ex- 
 
 334. In an ancient case it is said, ecution. ^Winkworth v. Mann, 
 
 that if an ejectment be brought for Yelv. 114, tatnen qutrre, et vide ante, 
 
 an acre of land, and the metes and chap. 2.)
 
 222 OF THE OUSTER. 
 
 sarily 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, (a) 
 
 The day upon which the ouster of the plaintiff, by 
 the casual ejector, is alleged to have taken place, 
 should regularly be after the commencement of the 
 supposed lease and entry. This is requisite, in order 
 to support the consistency of the fiction ; because, as 
 the title of the plaintiff is supposed to arise from the 
 lease mentioned in the declaration, it would be absurd 
 for him to complain of an injury to his possession be- 
 fore, by his own showing, he had any claim to be pos- 
 sessed. But it does not seem absolutely necessary 
 that this consistency should be preserved ; for, as the 
 words " afterwards, to wit," are always used imme- 
 diately before mentioning the day of the ouster, it is 
 most probable, upon the principles by which eject- 
 ments are at present regulated, that the Courts would 
 in all cases consider an ouster laid previously to the 
 day of the entry, " as impossible and repugnant," 
 and as such reject it. (b) Even when the old practice 
 prevailed, and the true principles of the remedy were 
 so little understood, every possible intention was made 
 in favour of the plaintiff, when an ouster was alleged 
 anterior to the time of the demise. Thus, on a de- 
 mise from the 1st of February, 1752, to hold from the 
 8th of January before, and that afterwards, namely, 
 
 () Wakeley v. Warren, 2 Roll. (ft) Adams v. Goose, Cro. Jac. 96. 
 Rep. 466. SeduiWeDouglasr;. Shank, B. N. P. 106. 
 Cro. Eliz. 766.
 
 OP THE OUSTER. 223 
 
 on the 28th of January, 1752, defendant ejected him, 
 and it was insisted for the defendants, that the plain- 
 tiff'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 un- 
 der a scilicet, was surplusage, and that "afterwards" 
 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 supradicto, defendant ejected him, the 
 Court held the declaration sufficient; because the 
 ouster was laid to be on the 18th of the same month, 
 which it could not be if it were done in the sixth 
 year, and rejected the word sexto as inconsistent and 
 void, (b) Upon the same principle, where the demise 
 was on the sixth of September, 2 Jac., by virtue of 
 which the plaintiff held, until afterwards, (to wit) 
 on the fourth day of September, 2 Jac., defendant 
 ejected him, the declaration was holclen good, and 
 the words under the scilicet rejected as surplusage, (c) 
 
 (a) B. N. P. 106. upon the distinctions formerly 
 
 (6) Davis v. Purdy, Yelv. 182. taken, as to the time of the com- 
 
 (c) Adams v. Goose, Cro. 96. mencement of a demise, when 
 
 Some old ejectment cases are to be stated in the lease to be " from the 
 
 found in the books, (Goodgain v. date," and when from " the day of 
 
 Wakefield, 1 Sid. 7. Evans v. the date "of the lease; but, since the 
 
 Croker, 3 Mod. 198. Stephens v. judgment in Pughv. Duke of Leeds 
 
 Croker, Comb. 83. Higham v. (Cowp. 714,) by which it has been 
 
 Cooke, 4 Leon. 144. Osborn v. determined, that these expressions 
 
 Rider, Cro. Jac. 135. Llewelyn v. shall be construed indifferently, 
 
 Williams, Cro. Jac. 258. Clayton's either inclusively or exclusively, so 
 
 case, 5 Co. 1 .) in which the ousters as to give effect to die deed, these 
 
 were laid on the same days as the cases can no longer be authorities, 
 demises, and which were decided
 
 224 OF AMENDING 
 
 From the case of Merrell v. Smith, (a) it does not 
 seem necessary to allege any particular day for the 
 ouster, provided it appears from the declaration, to be 
 subsequently to the commencement of the term, and 
 prior to the bringing of the action ; but in the pre- 
 cedents a day certain is always laid, and it is the 
 better method to mention a particular day. 
 
 With respect to the ouster in an ejectment for 
 tithes, it is said in the case of Worrall v. Harper, (&) 
 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 Gilbert, 
 C. B., on the principle that the law does not judicially 
 take notice of the time when tithes arise, (c) 
 
 OF AMENDING THE DECLARATION. 
 
 It was formerly the practice both in the King's 
 Bench and the Common Pleas, not to permit the de- 
 claration in ejectment to be amended, until the land- 
 lord, or tenant, had been made defendant instead of 
 the casual ejector ; and, consequently, if the defects 
 were such as to prevent the Courts from granting the 
 common rule for judgment against the casual ejector, 
 the plaintiffs lessor was compelled to discontinue the 
 action, and resort to a new ejectment, (d) But this 
 practice is inconsistent with the present mode of re- 
 gulating the remedy ; and the Court would, it is pre- 
 
 (a) Cro. Jac. 311. Jenk. 341. (d) Roe d. Stephenson t>. Doe, 
 
 (6) 1 Roll. Rep. 65. Barn. 186. 
 
 (r) Gilb. Eject. 67.
 
 OP AMENDING THE DECLARATION. 225 
 
 sumed, now permit the lessor to amend his declara- 
 tion before appearance, provided such amendment 
 did no injustice to the tenant. Indeed, where by 
 mistake, the name of the tenant in possession was in- 
 serted 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 affi- 
 davit of service, and suggested that if the tenant did 
 not appear to the action, an application should be 
 made to amend the declaration, (a) 
 
 It is also said that, even after appearance, the de- 
 claration 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 conducted, the demise, the length 
 of the term, the time of the ouster, &cc., (6) were all 
 considered as matters of substance ; (c) and so un- 
 bending were the courts upon these points, that if the 
 term expired, pending the action, by injunction from 
 the Court of Chancery at the defendant's application, 
 or by the delay of the Court, in which the action was 
 
 (a) Doe d. Cobbey v. Roe, K. B. any other matter of substance, 
 
 T. T. 1816. MS. though the second declaration were 
 
 (i) Formerly when a person de- correct, he could not recover ; be- 
 
 clared in ejectment in the Common cause the declaration on the impar- 
 
 Pleas, it was the course of the Court, lance roll was the material one on 
 
 that after imparlance he should which the action was grounded. 
 
 make a second declaration; and, (Merrell v. Smiih, Cro. Jac. 311. 
 
 when this practice prevailed, if the Jenk. 341.) 
 
 plaintiff, by his first declaration, (c) Doe d. Hardman v. Pilking- 
 
 had laid the ouster before the com- ton, Burr. 2447, and the cases there 
 
 mencement of his term, or omitted cited.
 
 226 OF AMENDING THE DECLARATION. 
 
 brought, in giving judgment, the lessor was obliged 
 to resort to a new ejectment, (a) 
 
 A more liberal principle has, however, of late years 
 been adopted; and the demise, term, &c, are now 
 most correctly considered as formal only, and may be 
 amended by the Court, or by a Judge at chambers, 
 or at the sittings, or on the circuit, until the cause is 
 called on for trial, and the jury sworn ; the judges 
 acting uniformly on this sensible rule, that if the de- 
 fendant has relied solely upon the formal defence, 
 and will surrender up possession upon the amend- 
 ment being made, he shall be paid the whole 
 of his costs, but if he refuses to relinquish the pos- 
 session and will hazard a trial notwithstanding the 
 amendment, he is entitled to the costs of the amend- 
 ment only. (6) Thus in an ejectment to recover 
 lands, forfeited by the levying of a fine, where the de- 
 mise was laid anterior 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 matter of form, and did not exist, (c) So like- 
 wise the Court permitted the declaration to be 
 
 (a) Anon. Salk. 257. S. C. G (6) Doe d. Lewis v. Coles, I R. 
 
 Mod. 130. Scrape v. Rhodes, Earn. & M. 380. Vide I Chitty. 535, 
 
 8. Driver v. Scratton, Barn. 17. note (a). 
 
 Ke&worth v. Thomas, And. 208. (c) Roe d. Hardman v. Pilking- 
 
 Thrustout v. Gray, Cas. Temp. ton, Burr. 2447. 
 Hard. 165.
 
 OP AMENDING THE DECLARATION. 227 
 
 amended by the insertion of a new count on a new de- 
 mise, after three terms had elapsed, and the roll had 
 been made up and carried in. (a) So also after is- 
 sue joined, by altering the parish, from the parish of 
 G, to the parish of St. John in G. (b) And where an 
 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 
 costs) after the record was made up, and the cause set 
 down for trial, (c) But this permission is not to be 
 extended 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 declaration, for this would be to give the 
 lessor of the plaintiff a right of action which did not 
 subsist at the time of the commencement of his 
 suit, (d) 
 
 The term also has been enlarged after its ex- 
 
 (a) Doe d. Beaumont v. Armit- March, 1813, and the declaration 
 
 age. 2 Chitty, 302. delivered on the 29th of Oct. 1813. 
 
 (6) Doe d. O'Connell v. Porch. The cause was set down for trial, at 
 
 Coram Heath, J. Trin. Vac. 18 li. the first sittings in Middlesex, in 
 
 MS. Hilary Term, 1814; but stood over 
 
 (c) Doe d. Itumford v. Miller. K. until the second sittings. And two 
 
 B. II. T. 1814. MS. This case days before the second sittings, a 
 
 seems to carry the principle of al- rule to shew cause why the day of 
 
 lowing an amendment of the demise the demise should not be altered to 
 
 in an ejectment to its utmost limit, the 80th of Sept. was obtained ; 
 
 The ejectment was brought upon a and made absolute immediately be- 
 
 covenant to finish certain build- fore the rising of the court on the 
 
 ings in a workmanlike manner be- morning of the second sittings, 
 
 fore the 29*A of Sept. 1813. The (d) Doe d. Foxlow v. Jeffries, K. 
 
 demise was laid on the 26th day of B. M. T. 1814. MS. 
 
 Q2
 
 228 OF AMENDING THE DECLARATION. 
 
 piration, 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 expired, (a) An en- 
 largement 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 ex- 
 pired before the plaintiff's lessor could obtain pos- 
 session, (b) 
 
 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 posses- 
 sion 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 plaintiff should act so negligently as to proceed 
 to trial upon an expired term, there seems no reason 
 why the above-mentioned principle should not be ap- 
 plicable to the modern practice, (c) 
 
 In the case of Goodtitle v. Meymott, the court re- 
 
 () Roe d. Lee ?;. Ellis, Blk. 940. (c) Capel v. Saltonstall, 3 Mod. 
 
 (/>) Vicars v.IIeydon, Cowp.841. 249.
 
 OP THE NOTICE TO APPEAR. 229 
 
 fused to amend a declaration, in which " the said 
 James," instead of u the said John/' was said to 
 enter by virtue of the demise ; and a case was 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 strik- 
 ing out the disjunctive words ; but it seems that 
 amendments have since been permitted, both in the 
 parcels and the names, (a) 
 
 OF THE NOTICE TO APPEAR. (6) 
 
 The name of the tenant in possession must be pre- 
 fixed to the notice ; and, when the possession of the 
 disputed premises is divided amongst several, it is 
 usual to prefix the names of all the tenants, to each 
 separate declaration ; although it does not seem ne- 
 cessary to prefix more than the name of the indivi- 
 dual tenant, upon whom the particular declaration is 
 served, (c) The notice must contain the Christian and 
 surnames of the tenant or tenants in possession. 
 A notice addressed "To Mrs. Plicks" has been held 
 insufficient; (d) as also a notice addressed " To the 
 personal representatives of A. B. y " (the deceased te- 
 nant.) (e) But where the tenant's name was thus ab- 
 breviated " John B. Jones, n instead of John Benja- 
 min Jones" the notice was held good. (/*) 
 
 (a) 2 Sell. Prac. 143. (e) Doe d. Governors of St. Mar- 
 
 (b) Appendix, No. 13. garet's Hospital v. Roe, 1 B. Moore 
 
 (c) Roe d. Burlton v. Roe, 7 T. 113. Doe d. Paul v. Hurst, 1 Chit- 
 li. 477. ty, 162. 
 
 (d) Doe v. Roe, 1 Chitty. 573. (/) Anon. 1 Cbitty, 573, note (a).
 
 "230 OF THE NOTICE TO APPEAR. 
 
 It seems also that the notice will be sufficient, al- 
 though the address to the tenant be altogether 
 omitted, provided it be stated in the affidavit of ser- 
 vice, that the tenant was duly served with a copy of 
 the declaration before the essoign day, and acknow- 
 ledged such service, (a) 
 
 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 delivered ; and when the provisions of 
 the stat. 1 Geo. IV. c. 87, s. 1, are resorted to, the 
 notice must also inform the tenant that he will be re- 
 quired to enter into a recognizance with two sufficient 
 sureties, in such reasonable sum as the Court shall 
 direct, to pay the costs and damages which may be 
 recovered in the action. 
 
 The time when the notice should require the tenant 
 to appear and apply to be made defendant, is regu- 
 lated by the locality of the premises ; unless the pro- 
 ceedings are regulated by stat. 1 Wm. IV. c. 70, s. 
 36, when the notice must invariably require the te- 
 nant to appear within ten days after the delivery of 
 the declaration. 
 
 In other cases when the premises are situated in 
 London, or Middlesex, the notice should be for the 
 tenant to appear " on the first day " (not the essoign 
 day,) (b) or "within the four first days" of the term 
 
 (a) Doe d. Pearson v. Roe, 5 B. (6) Holdfast v. Freeman, Stran. 
 Moore, 73. 1049.
 
 OF THE NOTICE TO APPEAR. 231 
 
 next after the delivery of the declaration ; and this 
 mode of expression should be strictly observed ; for 
 although where the notice was to appear " in the be- 
 ginning of the term,-" the Court granted a rule for 
 judgment against the casual ejector, (a) yet where the 
 notice was to appear " on the morrow of the Holy 
 Trinity," thejudgment against the casual ejector was 
 set aside, upon the principle, that the notice was de- 
 signed to inform the lay gents, of the time of appear- 
 ing, and should therefore be expressed in such terms 
 as they might understand, (b) 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. 
 
 When the premises are situated in any other county 
 than London or Middlesex, the notice should re- 
 gularly 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, although a 
 uon-issuable term intervene. Thus, when a declara- 
 tion is entitled of Trinity term, and delivered during 
 the long vacation, the notice may require the tenant 
 to appear in Hilary term.(c) 
 
 The notice usually specifies the term by name, in 
 which the tenant is to appear, and the declaration 
 should regularly be entitled of the term preceding; 
 but where a declaration, delivered in Hilary vacation, 
 
 (a) Tredder v. Travis, Earn 175. (r) Doc d. Clarke v. Roe, 4 Taunt. 
 
 (6 Sel. N. P. 640. T38.
 
 232 OF THE NOTICE TO APPEAR. 
 
 was entitled of Easter Term, and the notice was to 
 appear on the first day of next term, the Court 
 granted the common rule for judgment against the 
 casual ejector 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 the declaration was 
 delivered, and the notice dated on a day antecedent 
 to the essoign-day of Easter Term, (a) Where also 
 the notice had been given by mistake for Hilary 
 instead of Trinity term, and the tenant was after- 
 wards informed of the mistake, a rule nisi was 
 granted ; (b) and in a subsequent case, upon a similar 
 error, Holroyd, J. granted the common rule, (c) 
 Where also the declaration was by original, and the 
 notice was as if by bill, omitting " wheresoever, &c." 
 the variation was held immaterial. (</) But where the 
 notice was to appear in eight days of St. Hilary, 
 instead of Hilary terra generally, the Court refused 
 the rule ; (e} as they also did where the declaration 
 was entitled in the King's Bench, and the notice was 
 to appear in the Common Pleas. (/) 
 
 The declaration must be delivered before the es- 
 soign-day of the term, in which the notice is given to 
 appear, (y) 
 
 The notice should regularly be subscribed with the 
 
 (a) Anon. K. B. E. T. 1817, MS. (e) Lackland d. Bowling v. Bad- 
 
 (6) Anon. 2 Chitty, 171. land, 8 B. Moore, 79. 
 
 (c) Doe v. Greaves, 2 Chitty, (/) Doe d. Lewis v. Roe, K. B. 
 
 172. M.T. 1821. MS. 
 
 (d) Doe d. Thomas v. Roe, 2 (g) Doe d. Bird v. Roe, Barns. 
 
 Chitty, 171. 172.
 
 OF THE NOTICE TO APPEAR. 233 
 
 name of the casual ejector, and formerly proceedings 
 have been set aside for an irregular signature ; but it 
 is now sufficient if the notice be subscribed with the 
 name of the lessor of the plaintiff, or of any other 
 person, (a) 
 
 One case only is extant, in which an amendment 
 has been made, by rule of court, in the notice sub- 
 scribed to the declaration ; although it cannot be 
 doubted that any amendments 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 tenant to ap- 
 pear 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, (b) 
 
 (a) Peaceable v. Troublesome, should have obtained of giving no- 
 Barn. 172. Hazlewood d. Price v. tices to tenants to appear in non- 
 Thatcher, 3 T. R. 351. Goodtitle d. issuable as well as issuable terms, 
 Duke of Norfolk v. Notitle, 5 B. & and that such change of practice 
 A. 849.] should not have been noticed in 
 
 (6) Doe d. Bass v. Roe, 7 T. R. any of the reported cases. 
 469. It is singular, that a practice
 
 234 
 
 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 pro- 
 cess to bring the party interested into court, its de- 
 livery to the tenant resembles the service of a writ, 
 rather than the delivery of a declaration ; 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 delivery 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 
 personally upon the party in possession of the pre- 
 mises at the time of the service, or, when the posses- 
 sion is divided amongst several, upon each party se- 
 parately, (a) When the ejectment is brought by a 
 landlord against his tenant, and the tenant has under- 
 
 (a) B. N. P. 98.
 
 OF THE SERVICE OF THE DECLARATION. 235 
 
 let the premises, the same rule prevails, and the 
 service must be upon the under-tenant, or under- 
 tenants if more than one, and a service upon the 
 original tenant will not be sufficient, (a) But if the 
 service is upon the original tenant, and he appears 
 and pleads, he cannot afterwards release himself 
 from the action upon the ground, that his under- 
 tenants, and not himself, are in possession. () 
 
 When personal service can be effected, it is imma- 
 terial whether it be upon the premises demised, or 
 elsewhere, (c) 
 
 It frequently however happens, from the wilful or 
 accidental absence of the tenant, or some other cir- 
 cumstance, 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 happen, the 
 service will be considered good, or otherwise, accord- 
 ing to the particular circumstances of the case. In all 
 these cases, the facts should be disclosed in the affi- 
 davit of service, and mentioned to the Court on 
 moving for judgment against the casual ejector; and 
 if they are satisfied that the tenant has had notice 
 of the declaration, they will make the rule absolute 
 in the first instance ; but otherwise, they will grant a 
 rule upon the tenant, to show cause why the service 
 should not, under the special circumstances, be suf- 
 
 (a) Doe d. Lord Darlington v. (c) Savage v. Dent, Stran. 1064. 
 Cock, 4 B. & C. 259. Taylor v. Jefts, 11 Mod. 302. 
 
 (b) Roe v. Wiggs, 2 N. 11. 330.
 
 236 OF THE SERVICE OF THE DECLARATION. 
 
 ficient and direct that the service of the rule on 
 the premises shall be deemed good service. 
 
 The power exercised by the courts in this respect 
 is altogether discretionary ; and it will be necessary 
 to enter rather largely into a detail of the cases, in 
 order to give a clear idea of the principles upon 
 which they have been decided. 
 
 Service of the declaration upon the wife of the 
 tenant in possession upon the premises, or at the 
 husband's house elsewhere, will be good service, (a) 
 So also, if the affidavit state that the parties were 
 living together as man and wife, when the service was 
 made, service on the wife any where will be good. () 
 But the mere acknowledgment of the wife, that she 
 has received a declaration, and given it to her hus- 
 band, if it be not personally served upon the wife, 
 will not be good service ; (c) nor will an affidavit be 
 sufficient which states the service to be upon the pre- 
 mises on a woman, representing herself to be the 
 wife of the tenant in possession, if it does not also 
 aver the defendant's belief of the fact, (d) 
 
 When two or more tenants are in possession of the 
 same premises, if it appear from the affidavit that the 
 parties are all in possession, but that one only has 
 
 (a) Doerf. Baddam v. Roe, 2 B. (c) Goodtitle d. Read i\Badtitle, 
 
 & P. 65. Goodright d. Jones v. 1 B. & P. 384. Et vide Anon. 2 
 
 Thrustout, Bik. 800. Doe d. Mor- Chitty, 182. 
 
 land v. Bayliss, 6 T. It. 765. (d) Doe d. Simmons v. Roe, 1 
 
 (6) Jenny d. Preston v. Cults, 1 Chitty, 228. 
 N. R. 30810.
 
 OP THE SERVICE OF THE DECLARATION. 237 
 
 been served with the declaration, the Court will grant 
 the common rule against the party served, and a 
 rule nisi against the other parties ; but if the affida- 
 vit does not show such possession, the rule will 
 be refused against all but those actually served, (a) 
 
 Service upon the wife of one of two joint tenants 
 will not bind the co-tenant, (b) 
 
 Service of the declaration upon the child, or ser- 
 vant of the tenant, will be sufficient service, pro- 
 vided it appears from the affidavit, that the decla- 
 ration was delivered on the premises before the 
 essoign-day of the term, and that the tenant, pre- 
 viously to such essoign-day, has acknowleged him- 
 self to have received such oeclaration, or to have 
 known of the service thereof, (c) 
 
 Where the ejectment was brought for a house, 
 which was rented by the churchwardens and over- 
 seers of the parish, for the purpose of accommodating 
 some of the parish poor, a service of the declaration 
 upon the churchwardens, and overseers, was held 
 sufficient, although they did not occupy the house, 
 otherwise than by placing the poor in it. (d) And 
 
 (a) Right v. Wrong, 2 Chitty, 175. East. 441. Doe d. Macdougall v. 
 
 Doe d. Field v. Roe, 2 Chitty, 174. Roe, 4 B. Moore, 20. Doe d. Hal- 
 
 Anon. 2 Chitty, 176. Doe d. Brom- sey v. Roe, 1 Chitty, 100. Doe d. 
 
 ley v. Roe, 1 Chitty, 141. Doed. Tindall v. Roe, 2 Chitty, 180. Right 
 
 Elwood v. Roe, 3 B. Moore, 578. d. Freeman v. Roe, 2 Chitty, 180. 
 
 Doe d. Bailey v. Roe, 1 B. & P. Doe v. Roe, 5 B. & C. 764. 
 
 369. (d) Tupper d. Mercer v. Doe, 
 
 (b} Wood, L. & T. 463. Barnes, 181. 
 
 (c) Roe d. llainbrook v. Doe, 14
 
 238 OF THE SERVICE OF THE DECLARATION. 
 
 in an ejectment for a chapel, the service may be made 
 on the chapel-wardens, or on the persons to whom 
 the keys are intrusted, (a) But where the ejectment 
 is for a house, service upon the person, having the 
 charge of the keys in order to let the house, will not 
 be good service ; (b) and service upon a person ap- 
 pointed by the Court of Chancery, to manage an 
 estate for an infant, although the estate consisted 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, (c) 
 
 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 re- 
 sided A.) who was permitted to live there merely to 
 take care of them and of the mansion-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 declaration 
 on the empty houses, and then to move that it be 
 deemed good service, (d ) 
 
 In the preceding cases no wilful opposition appears, 
 on the part of the tenant, to the service of the decla- 
 ration ; and such of the services already mentioned 
 as are considered good, are called regular services; 
 
 (a) Run. Eject. 136. title, 1 B. & P. 385. 
 
 (6) Anon. 12 Mod. 313. (d ) Wood, L. & T. 466. 
 
 (c) Goodtitle d. Roberts v. Bad-
 
 OP THE SERVICE OF THE DECLARATION. 239 
 
 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 otherwise would be 
 deemed irregular. 
 
 Thus, a tender of the declaration, and reading 
 the notice aloud, although the tenant refuse to receive 
 it, or run away and shut the doors, or threaten with 
 a gun to shoot the person serving it, if he should 
 come near ; throwing the declaration in at the win- 
 dow, sticking it against the door, 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 declaration 
 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, (a) 
 
 Where the tenant resided abroad, and carried on 
 
 (a) Douglas v. , Stran. 575. Barn. 188. Fenn d. Hildyard v. 
 
 Suialley t>. Neale, Barn. 173. Hal- Dean, Barn. 192. Sprightly d. Col- 
 sal v. Wedgwood, Barn. 174. Doe lins v. Dunch, Burr. 1116. Doe d. 
 d. Dry v. Roe. Barn. 178. Farmer Neale v. Roe, 2 Wils. 2C3. Fenn d. 
 d. Miles v. Thrustout, Barn. 180. Buckle v. Roe, 1 N. R. 293. Doe d. 
 Bagshaw d. Ashton u. Toogood, Herveyr. Roe, 2 Price, 112. 2 Chit- 
 Barn. 185. Short d. Elmes u. King, ty's cases. Title, Ejectment, jwtim.
 
 240 OF THE SERVICE OF THE DECLARATION. 
 
 his business by an agent residing on the premises, 
 and the service was by delivering the declaration in 
 the usual way to the agent, and affixing a copy on 
 the premises, the Court of King's Bench held the 
 service to be sufficient, (a) But in a case where it 
 appeared that the tenant resided abroad for the pur- 
 pose of avoiding his creditors, and had declared him- 
 self afraid to return to England unless he could ob- 
 tain a letter of licence, and that a copy of the declara- 
 tion was duly served on the premises on a servant 
 who was left in charge thereof, and at the same time 
 another copy was affixed on the outer door of the 
 dwelling-house, the Court of Common Pleas refused 
 the rule and also refused a rule to show cause why 
 service on the tenant's solicitor should not be deemed 
 good service ; because it did not appear by the affi- 
 davits that the party had gone abroad to avoid the 
 particular process in this action, (b) And the Court 
 of King's Beneh also refused a rule, where the affida- 
 vit did state, in addition to the fact that the party was 
 resident in France, the belief of the party making 
 the affidavit, that he was gone there for the purpose 
 of the avoiding the service of the declaration ; but 
 the service was only stated to be upon the servant 
 on the premises, without also adding that a copy of 
 the declaration was affixed to them, (c) 
 
 Where the tenant of a house locked it up and 
 
 (a) Doe v. Roe, 4 B. & A. 653. 213. Doe d. Lowe v. Roc, 2 
 
 (b) Doe d. Fenwick v. Roe, 3 B. Chitty, 177. Doe d. Hele v. Roe, 
 Moore, 576. 2 Chitty, 178. 
 
 (c) Doe d. Jones v. Roe, 1 Chitty
 
 OP THE DECLARATION. 241 
 
 and quitted it, and the landlord three months afterwards 
 fixed a copy of the declaration to the door, it was 
 held that the service was not sufficient, but that 
 the landlord should have treated it as a vacant pos- 
 session (a) 
 
 In a case where the tenant in possession was per- 
 sonated, at the time of the service, by another, who 
 accepted the service in the tenant's name, the Court 
 granted a rule to show cause, why this should not be 
 deemed good service ; and that leaving a copy of the 
 rule at the 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, 
 u that at a subsequent day," (upon a doubt whether 
 what had been already done was sufficient,) u the 
 maid being at home, and opening the window, but 
 refusing to open the door, and denying that her mis- 
 tress 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." () 
 
 In a case, where one of the tenants was a lunatic, 
 and one C. lived with her, transacted her business, 
 and had the sole conduct thereof, and of her person, 
 
 (a) Doe d. Lord Darlington v. (b) Fcnn d. Tyrrell v. Denn, Burr. 
 Cock, 4 B. & C. 259. 1181.
 
 242 OF THE AFFIDAVIT OF SERVICE. 
 
 but would not permit the deponent to have access to 
 her in order to serve her with the declaration, where- 
 upon 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 held to be good, (a) 
 
 Where the declaration was tendered on the day 
 before the essoign day, but the defendant's servant 
 said, he had orders not to receive any such thing, 
 whereupon it was not then served, but was left at the 
 house upon the day following ; the Court refused the 
 rule, saying, " We sometimes make that service, un- 
 der particular circumstances, good, which otherwise 
 would have been imperfect ; but here there was no 
 service on the proper day, and we cannot antedate 
 the service." (6) 
 
 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. (c) 
 
 OF THE AFFIDAVIT OF SERVICE, (d} 
 
 When the service of the declaration is made in the 
 regular way, the next step to be taken, in order to ob- 
 
 (a) Doe d. Wright v^ Roe, Barn. (6) Wood. L. & T. 466. 
 190. Doe d. Lord Aylesbury v. (c) Ibid, 463. Appendix, No. 41. 
 Roe, 2 Chitty, 183. (d) Appendix, Nos. 16, 17, 18.
 
 OP THE AFFIDAVIT OP SERVICE. 
 
 tain judgment against the casual ejector, is to make 
 an affidavit of such 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 decla- 
 ration ; although, if the lessor be aware of the difficul- 
 ties he 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, (a) 
 
 The affidavit may be sworn before a judge, or a 
 commissioner, 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 declaration served upon, and heard it ex- 
 plained to, the tenant in possession. (6) 
 
 
 The affidavit must be entitled with the name of the 
 casual ejector, (c) and when no special circumstances 
 take the case out of the general rule, it 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 explained, at the 
 
 (a) Methold v. Noright, Blk. (b) Goodtitle d. Wanklen v. Bad- 
 290. Gulliver v. Wagstaff, Blk. title, 2 B.& P. 120. 
 317. (r) Anon. 2 Chitty, 181. 
 
 i 2
 
 244 OP THE AFFIDAVIT OF SERVICE. 
 
 time of the delivery, or generally that the tenant was 
 informed of the intent and meaning of the service, (a) 
 If the affidavit only state that the notice was read, 
 the service will not be sufficient ; (6) and where it was 
 said, on the delivery of the declaration, u This is an 
 ejectment from Mrs. C. C. ;" (c) as also where the 
 expression was, " This is an ejectment from Mrs. 
 C. C., but it is not intended to turn you out of 
 possession, but to get into the receipt of the rents 
 and profits " (c) the services were held not to be 
 good ; (c) and an insufficient service of this kind will 
 not be aided by an explanation after the essoign day 
 of its nature and meaning, (c) But if the tenant ac- 
 knowledge that he understands the meaning and in- 
 tention of the service, it will be good, without any 
 such reading or explanation, (d} 
 
 If the service was upon the wife, the affidavit must 
 also state, that the service was on the premises, or at 
 the husband's house, (<?) or that the husband and wife 
 were living together ; (f ) and, if the service were on 
 the child or servant of the tenant, " that the service 
 was acknowledged by the tenant before the essoign 
 day of the term, (g) 
 
 The affidavit must be positive, that the person 
 
 (a) Appendix, Nos. 16, 17, 18. (e) Doe d. Morland v. Bayliss, 6 
 
 (6) Doe d. Whitfield v. Roe, K. B. T. R. 765. 
 
 T. T. 1815.MS. (/) Jenny d. Preston v. Cutts, 1 
 
 (c) Doe d. Edwards v. Roe, K.B. N. R. 308. Appendix, No. 18. 
 H.T. 1821. MS. ( g ) Roe d. Hambrook v. Doe, 14 
 
 (d) Doe d. Quintin v. Roe, K. B. East. 441. 
 T. T. 1816. MS.
 
 OP THE AFFIDAVIT OF SERVICE. 245 
 
 served was the tenant in posession, (a) or that he 
 acknowledged himself to be so. (6) An affidavit 
 therefore that the deponent did serve A. B. tenant in 
 possession, or his wife, was held not to be sufficiently 
 certain as to either, (c) So also affidavits, that the 
 deponent did serve the wives of A. and B. who, or 
 one of them, are tenants in possession ; (d ) that he 
 served the person in possession, (e) and that he 
 served A. B. whom he verily believed to be the 
 tenant in possession, (/) have been held insufficient. 
 
 If several persons be in possession of the disputed 
 premises, and separate declarations in ejectment be 
 served upon them, one affidavit of the service upon 
 all, annexed to the copy of one declaration, is suffi- 
 cient, provided one action of ejectment only be in- 
 tended ; (g) but if the ejectments are made several, so 
 as to have separate judgments, writs of possession, 
 &c. then separate affidavits, of the several services 
 upon the different tenants, must be annexed to copies 
 of the several declarations respectively, (ft) 
 
 When one action only is intended, the names of all 
 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 par- ' 
 ticular declaration was delivered, was prefixed to the 
 
 (a) Doe v. Roe, 1 Chitty, 574. (e) Doe d. Robinson v. Roe, 1 
 
 (/>) Anon. 1 Barnard, 330. Good- Chitty, 118, note (a), 
 
 tide v. Davis, 1 Barnard, 429. (/) Doc v. Badtitle, 1 Chitty, 215. 
 
 (c)Birkbeckt;. Hughes, Barn. 173. (g) Appendix, No. 17. 
 
 (d ) Harding d. Baker v. Green- (A) 2 Sell. Prac. 100. 
 smith, Barn. 174.
 
 246 OP THE AFFIDAVIT OF SERVICE. 
 
 notice to such declaration, 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 decla- 
 ration and notice had been served on all the tenants, 
 the Court, notwithstanding, thought one rule sufficient, 
 on motion for judgment against the casual ejector, (a) 
 
 When an affidavit of service is defective, the 
 Court will not grant a rule upon an undertaking that 
 a supplemental affidavit shall be made remedying the 
 defect ; but upon obtaining such supplemental affi- 
 davit, the rule may be moved for as in ordinary 
 cases, (b) 
 
 When the action is founded on the stat. 1 G. 
 IV. c. 87. s. 1, instead of moving for judgment in 
 the ordinary way, the lessor should be prepared 
 with the affidavits required by that statute, in ad- 
 dition to the usual affidavit of service, and the mo- 
 tion should be for a rule to show cause " why the 
 party should not undertake, upon being admitted de- 
 fendant, besides entering into the common rule, and 
 giving the common undertaking, to give the plaintiff 
 judgment, in case he obtain a verdict, of the term 
 next preceding the trial ; and why he should not enter 
 into a recognizance by himself and two sufficient 
 sureties, in a sum to be named by the Court, to pay 
 the costs and damages which may be recovered in the 
 action." 
 
 (a) Roe d. Burlton v. Roe, 7 T. R. N. R. 303. Goodtitle d. Sandys 
 477. v. Badtitle, K. B. T. T. 1819. MS. 
 
 (6) Jenny d. Preston v. Cutts, 1
 
 OP JUDGMENT AGAINST, &C. 247 
 
 When the claimant proceeds upon the stat. 1 
 Wm. 4. c. 70. s. 36, it must be sworn, in addition 
 to the usual affidavit of service, that the relation of 
 landlord and tenant subsisted between the lessor and 
 the party in possession, and that the interest of the 
 latter in the premises expired within ten days next 
 before the service of the declaration. 
 
 OF JUDGMENT AGAINST THE CASUAL EJECTOR. 
 
 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 Serjeant; 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 Common Pleas ; as these motions 
 will not be received in court unless there is something 
 special in the service of the declaration: (a) but when 
 any special circumstances exist, the rule must be 
 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. () 
 
 The time for moving for 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. 
 
 (a) Ante, 243. (b) Appendix, Nos. 20, 21, 22.
 
 OF THE TIME ALLOWED 
 
 Iii the King's Bench, if the premises are situated in 
 London, 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 mo- 
 tion, 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. 
 
 In the Common Pleas, if the premises are situated 
 in London or Middlesex, and the tenant has notice 
 to appear in the beginning of the term, judgment 
 against the casual ejector must be moved for, within 
 one week next after the first day of every Michael- 
 mas and Easter term, and within four days next 
 after the first day of every Hilary and Trinity term ; 
 (a) except, it seems, when the tenant has absconded, 
 and the proceedings are upon the statute of 4 Geo. IL, 
 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 
 possession. (6) 
 
 () Reg. Trin. 32 Car. II. C. B. be correct, it seems to extend to 
 
 (i) Negative d. Parsons v. Posi- similar cases when the proceedings 
 
 live, Barn. 172. If the principle are at common law. 
 
 upon which this exception is taken ,
 
 FOR APPEARANCE. 249 
 
 When the premises are situated elsewhere than in 
 London or Middlesex, or being situated in London 
 or Middlesex, the notice is to appear qeneralty of 
 the term, judgment must be moved for in all the 
 courts during the term in which the notice is given 
 to appear; and the appearance must be entered within 
 four days next after the expiration of such term, whe- 
 ther it be an issuable or non-issuable one. (a) 
 
 When the action is brought under the provisions 
 of the statute 1 Wm. IV. c. 70. s. 36, the tenant 
 must in all cases enter his appearance within ten days 
 after the delivery of the declaration. 
 
 By a rule of the Court of King's Bench, which has 
 been adopted by the Court of Common Pleas, (b] the 
 clerk of the rules now keeps a book, in which are en- 
 tered all the rules delivered out in ejectments, in- 
 stead 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 eject- 
 ment. 
 
 () Reg. gen. 4 B. & A. 539. 2 B. (b) M. T. 31 Geo. III. 4 T. 11. 1. 
 &. B. 705; 9 Price 299. E. T. 18 Geo. III. 1 Taunt. 317.
 
 OF FILING COMMON BAIL. 
 
 When the proceedings are in the King's Bench by 
 bill, bail must be filed for the casual ejector before the 
 judgment can be signed against him, or the Court will 
 set the judgment aside ; (a) but the bail need not be 
 filed until after the rule for judgment is drawn up. (b) 
 
 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, (c) But where no bail was 
 filed in ejectment, and a writ of error was brought, 
 and it appeared by the attorney's books that the at- 
 torney 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 ; because 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 
 without 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 de- 
 fendant, because he had given the fee, nor against 
 the attorney because he was dead, it therefore be- 
 came the justice of the Court to set it right, that the 
 plaintiff might have no mischief, (d) 
 
 (a) Bouchier r. Friend, 2 Show, for the casual ejector; but this 
 
 249. doctrine seems scarcely consistent 
 
 (6) Gilb. Eject. 21. with the modern principles of the 
 
 (c) It has been said that if the remedy. Gilb. Eject. 22. 
 
 tenant appear and the cause go on (cO Gilb. Eject. 22. This case 
 
 to trial, the Court will not compel seems scarcely applicable to the 
 
 him, if the proceedings are by bill, modern practice. ( Vide post, Writ 
 
 to confess lease, entry, and ouster, of Error.) 
 unless common bail has been filed
 
 OF SIGNING JUDGMENT, &C. 251 
 
 In the time of Charles II. the Court published a 
 rule, (a) that no person should be permitted to take 
 out judgment against the casual ejector without a 
 certificate that a latitat had been taken out, and bail 
 filed j because the Court had no authority to proceed 
 by bill, unless the defendant appeared to be a pri- 
 soner of the Court. But this certificate is not now re- 
 quired, nor is a latitat necessary ; for when the ca- 
 sual 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 cor am nonjudice. (b) 
 
 When the time appointed for the appearance of 
 the landlord, or tenant, has expired, it is not neces- 
 sary to give a rule to plead, but judgment may at 
 once be signed against the casual ejector, provided 
 the party interested has neglected to appear ; which 
 fact is ascertained by searching the ejectment books 
 of the judges in the King's Bench and the protho- 
 notary'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 judg- 
 ments in the King's Bench, and to the prothonotary 
 in the Common Pleas, (together, when the proceed- 
 ings are in the Common Pleas, with a warrant of 
 attorney for the defendant,) and judgment will then 
 be signed accordingly, (c) 
 
 (a) Reg. Trin. H Car. II. and (6) Gilb. Eject. 22. 
 .Mich 33. Car. II. (c) App. No. 23.
 
 252 OP SIGNING JUDGMENT AGAINST 
 
 The judgment, however, must not be signed, until 
 the afternoon of the day next after that on which the 
 rule expires ; and if Sunday happen to be the last 
 day, not until the afternoon of Tuesday, (a) 
 
 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 execute the same by giving possession of 
 the premises to the plaintiff's lessor. 
 
 Judgments against the casual ejector irregularly 
 obtained, will, as a matter of course, be set aside ; 
 and as the situations of claimant, and defendant, in 
 ejectment, are materially different, the Courts are li- 
 beral in their rules for setting aside judgments against 
 the casual ejector, although regularly signed; and will 
 grant them even after execution executed, upon affi- 
 davit of merits, or other circumstances, which at their 
 discretion they may deem sufficient. (6) 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 require it, the Courts will order a writ of 
 restitution to be issued, (c) 
 
 In an ejectment where a party having been admitted 
 
 (a) Hyde d. Culliford v. Thrust- vide Doe d. Ledger v. Roe, 3 Taunt. 
 
 out, Say. 303. 506. , < pi * . S hfrvv* 
 
 (6) Doe d. Troughton v. Roe, (c) Goodright d. Russell v. No- 
 Burr. 1996. Dobbs v. Passer, Stran. right, Barn. 178. Daviesd. Povey 
 975. Mason d. Kendale u. Hodgson, v. Doe, Blk. 892. Appendix, No. 
 Barn. 250. Doe d. Grocers' Com- 41. 
 pany v. Roe, 5 Taunt. 205. Sed
 
 THE CASUAL EJECTOR. 253 
 
 to defend alone, as landlord, died before the trial of 
 the cause, devising his real estates to B, and the les- 
 sor (having committed no wilful delay,) was presented 
 by the Statute of Limitations from bringing a fresh 
 ejectment, the Court gave him leave to sign judg- 
 ment against the casual ejector in the old suit, and 
 issue execution thereon, unless B. would appear and 
 defend as landlord, (a) 
 
 (a) Doe d. Grubb v. Grubb, 5 B. & C. 457.
 
 
 CHAPTER IX. 
 
 Of the Appearance Plea and Issue. 
 
 IN the preceding chapter the suit has been conducted 
 to its termination, when no appearance is entered in 
 pursuance 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 interference 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, being the person primdfacie interested, 
 is, of course, the party on whom the declaration is 
 always served; although it frequently happens in 
 practice, that the lands belong to some third person 
 out of possession, to whom such service can afford 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
 
 WHO MAY APPEAR. 255 
 
 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, unless the tenant consented to become 
 a co-defendant with him; (a) and no means existed by 
 which the tenant could be compelled to appear, and 
 be made such co-defendant (b) This system occa- 
 sioned great inconvenience to landlords. The tenants 
 from negligence, or fraud, frequently omitted to ap- 
 pear themselves, or to give to the landlords the ne- 
 nessary notice ; and although judgments against the 
 casual ejector hWe been set aside, upon affidavits of 
 circumstances of this nature, the remedy was still 
 very incomplete, (c) 
 
 To remedy these imperfections, by the statute 
 11 Geo. II. c. 19. s. 13, it is enacted, "That it shall 
 " and may be lawful for the court in which an eject- 
 " ment is brought, to suffer the landlord or landlords 
 " to make him, her, or themselves, defendant or de- 
 " fendants, by joining with the tenant or tenants, to 
 " whom such declaration in ejectment shall be de- 
 " livered, 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 landlords of any part of the lands, tene- 
 " ments, or hereditaments, for which such ejectment 
 " was brought, shall desire to appear by himself or 
 " themselves, and consent to enter into the like rule, 
 " that by the course of the court the tenant in posses- 
 Co) Lill. Pr. Reg. 674. (r) Anon. 12 Mod. 2 1 1. 
 (6) Goodright v. Hart, Stran. 880.
 
 256 OF THE APPEARANCE 
 
 (C sion in case he or she had appeared, ought to have 
 " done ; then the Court, where such ejectment shall 
 <f be brought, shall and may permit such landlord or 
 " landlords so to do, and order a stay of execution 
 " upon such judgment against the casual ejector, un- 
 " til they shall make further order therein/' 
 
 By the 12th section of the same statute it is also 
 enacted, "That every tenant, to whom any declara- 
 " tion in ejectment shall be delivered, shall forthwith 
 " give notice thereof to his landlord, bailiff, or re- 
 " ceiver, under the penalty of forfeiting the value of 
 " three years' improved, or rack-rent of the premises 
 " so demised, or holden, in the possession of such 
 " tenant, to the person of whom he holds ; to be re- 
 te 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, respectively, or in the courts of grand 
 " sessions in Wales." 
 
 With respect to this latter section, it may be pro- 
 per 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, (a) 
 
 The first enactment in the thirteenth section of this 
 statute, namely, that landlords may be made defend- 
 
 (a) Buckley v. Buckley, 1 T. R. 647.
 
 WHO MAY APPEAR. 257 
 
 ants by joining with the tenants in possession, is de- 
 cidedly only a legislative sanction of the previous 
 uniform practice of the courts ; and it is also said, by 
 Wilmot, J., in the case of Fairclaiin d. Fowler v. 
 Shamtitle, (a) that landlords were permitted before 
 this statute to defend ejectments without joining the 
 tenants in possession. There is indeed but one case 
 extant in which the contrary doctrine is maintained; (b) 
 and the loose notes to be found of cases previous to 
 that decision certainly favour Mr. J. Wilinot's opi- 
 nion, (c) It is therefore probable, particularly since 
 the case 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, (d) 
 
 By the words of the statute the courts can admit 
 landlords only to defend, and difficulties have fre- 
 quently arisen, as to the meaning of the word landlord 
 in the act, and as to what interest in the disputed 
 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 per- 
 son claiming title, who could be admitted to defend 
 as landlord, but only he, who had been in some degree 
 in possession, as receiving rent, &c. ; and upon this 
 
 (a) Burr, 1301. Anon. 12 Mod. 211. 
 
 (6) Goodright v. Hart, Stran. 830. (d) Fairclaim d. Fowler t>. Sham- 
 
 (c) Lamb v. Archer, Comb. 208. tide, Burr. 1290. 1298. 
 
 S
 
 258 OF THE APPEARANCE. 
 
 principle, the Court would not allow a devisee claim- 
 ing under one will of the testator, to defend as land- 
 lord in an ejectment, brought by a devisee claiming 
 under another will of the same testator, (a) 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 per- 
 son whose title is connected to, and consistent with, 
 the possession of the occupier, and divested, or dis- 
 turbed, by any claim adverse to such 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 land- 
 lords de jure, in right of representation to a landlord 
 de facto, so as to prevent either from recovering by 
 collusion with the occupier, without a fair trial with 
 the other. Where a person claims in opposition to 
 the title of the tenant in possession, (b) he can in no 
 light be considered as landlord : and it would be un- 
 just to the tenant, to make him a co- defendant : their 
 defences might clash. Whereas, when there is a pri- 
 vity between them, their defence must be upon the 
 same bottom : and letting in the person behind, can 
 only operate to prevent treachery and collusion. It 
 is no answer, "that any person affected by the judg- 
 ment may bring a new ejectment ;" because there is 
 
 (a) Roe d. Leak v. Doe, Barn. (b) Driver d. Oxendon v. Law- 
 193. rence, Blk, 1259.
 
 WHO MAT APPEAR. 
 
 259 
 
 a great difference between being plaintiff, or defend- 
 ant, in ejectment, (a) 
 
 The judgment in this case was not, indeed, ulti- 
 mately 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 consi- 
 der, 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 pre- 
 viously have exercised any act of ownership over the 
 lands. Thus, the courts have permitted an heir, who 
 had never been in possession, to defend where the 
 father, under whom he claimed, had died just before, 
 having previously obtained the same rule, (b) So 
 a devisee in trust, not having been in possession, 
 
 son requiring to be made a defend- 
 ant under the act had stood in the 
 situation of immediate heir to the 
 person last seized, or had been in 
 the relation of remainder-man, 
 under the same title as the original 
 landlord, I am of opinion that he 
 might have been permitted to de- 
 fend as a landlord, by virtue of the 
 directions of the statute ; but here 
 
 (a) Fairclaim d. Fowler v. Sham- 
 title, Burr. 1290. 94. The prin- 
 ciples laid down by Lord Kenyon, 
 C.J., in the case of Lovelock d. 
 Norris v. Dancaster (3 T. R. 783.) 
 seem to support the doctrine of 
 Lord Mansfield, above mentioned; 
 although, from the omission, in the 
 report of the case, of the facts 
 upon which Lord Kenyon 's judg- 
 ment was founded, the point can- 
 not be clearly ascertained. 
 
 It was moved, that the cestui 
 qtte trust might be made defendant 
 in ejectment instead of the tenant, 
 and objected to on the opposite 
 side, because he had never been in 
 possession, and could not be con- 
 sidered as a landlord under the 
 statute 11 Geo. II. c. 19. s. 13. 
 
 Lord Kenyon, C.J. "If the per- 
 
 the very question in dispute be- 
 tween the adverse party and him- 
 self is, whether he is entitled to be 
 landlord or not ; and therefore we 
 are not authorized to extend the 
 provision of the statute to such a 
 case as this." The rule was dis- 
 charged. 
 
 (6) Doe d, Heblethwaite v. Roe, 
 cited 3 T. R. 783.
 
 260 OF THE APPEARANCE. 
 
 was permitted to defend, (a) and a mortgagee has 
 been made defendant with the mortgagor; (6) but in 
 a recent case, the Court refused to permit a mort- 
 gagee to defend, because it did not appear that he 
 was interested in the result of the suit, (e) 
 
 If a party should be admitted to defend as land- 
 lord whose 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, (d) If, however, he neglect 
 to do so, and the party continue upon the record as 
 defendant, such party will not be allowed to set up 
 such inconsistent title as a defence at the trial, (e) 
 
 The Court of King's Bench, in a case which has 
 already been frequently cited, exercised a singular 
 species of equitable 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 haredis, 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 
 
 (a) Lovelock d. Norris v. Dan- vide B. N. P. 95.) 
 
 caster, 4 T. R. 122. (c) Doe d, Pearson v. Roe, 6 
 
 (6) Doe d. Tilyard v. Cooper, 8 Bing. 613. 
 
 T. R. 645. It does not appear, (d) Doe d. Harwood v. Lippen- 
 
 from the report of this case, whe- cott Coram Wood, B. Trin. Vac. 
 
 ther the mortgagee had previously 1817. MS. 
 
 received any rent; but, from the (e) Doe d. Knight v. Lady Smythe, 
 
 principles above laid down, the cir- 4 M. & S. 44f. 
 cumstance seems immaterial. (Scd
 
 WHO MAY APPEAR. 261 
 
 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 Mans- 
 field, 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 discharged 
 the rule, (a) 
 
 A wife has been permitted to defend, where the 
 title of the plaintiffs lessor arose from a pretended 
 intermarriage with her, which marriage she dis- 
 puted. (6) 
 
 But a parson claiming a right to enter, and perform 
 divine service, has been held not to have a sufficient 
 title to be admitted defendant; (c) and, where the ap- 
 plication for admission appeared only a device to put 
 off the trial, the Court refused to grant a rule, (d) 
 
 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 in the tenant's 
 name. And where a suit was so defended, and the 
 lessor of the plaintiff, having knowledge thereof, ob- 
 
 (a) Fairclaim d. Fowler v. Sham- (c) Martin v. Davis, Stran. 914. 
 
 title, Burr. 1290. Vid. Cont. Hillingsworth v. Brew. 
 
 (6) Fenwick v. Gmvenor, 7 Mod. ster, Salk. 256. 
 
 71. (d) Feuwick's case, Salk. 257.
 
 262 OF THE CONSENT RULE. 
 
 tained from the tenants a retraxit of the plea, and a 
 cognovit of the action, the Court directed the judg- 
 ment to be set aside, (a) 
 
 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 (b) and purposes of the consent rule 
 have already been cursorily mentioned ; (c) but they 
 must now be spoken of more fully. It is in substance 
 as follows : First, The person appearing consents 
 to be made defendant instead 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, (d) 
 and plead not guilty : Fourthly, At the trial of the 
 issue to confess lease, entry, and ouster, and posses- 
 sion of the premises in respect of which he defends, 
 and insist upon title only. Fifthly, That if at the 
 trial he shall not confess lease, entry, ouster, and 
 possession, whereby 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 judg- 
 ment 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, ouster, 
 
 (a) Doe d. Locke v. Franklin, 7 (d) The declaration, served upon 
 Taunt. 9. the tenant to bring him into court 
 
 (b) Appendix, No. 25. is the only declaration now de- 
 
 (c) Ante, 15, livered.
 
 OP THE CONSENT RULE. 
 
 and possession, the lessor of the plaintiff shall pay 
 costs to the defendant. Seventhly, When the land- 
 lord appears alone, that the plaintiff shall be at liberty 
 to sign judgment immediately against the casual 
 ejector, but that execution be stayed until the Court 
 shall further order; (a) and Eighthly, where the pro- 
 ceedings are under stat. 1. Geo. IV. c. 87, to give 
 judgment of the term preceding the trial, in case 
 verdict shall pass for the plaintiff. 
 
 This consent rule will, in all cases, be sufficient to 
 prevent a nonsuit for want of a real lease, and of a real 
 entry and ouster by the defendant. When, therefore, 
 an ejectment is brought by a joint tenant, parcener, 
 or tenant in common, against his companion (to sup- 
 port which an actual ouster (6) is necessary), the 
 defendant ought to apply to the Court upon affi- 
 davit, (c) for leave to enter into a special rule, re- 
 quiring 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 ; and this special rule will always be grant- 
 ed, (d) unless it appear that the claimant has been 
 actually obstructed in his occupation, (e) 
 
 As the consent rule contains conditions to be ob- 
 served on the part of the claimant, as well as of the 
 tenant, the claimant is obliged to join in it; and an 
 
 (a) Sel. N. P. 644. (0 Anon. 7 Mod. 39. Gates d. 
 
 (b) Ante, 54. Wigfall v. Brydon, Burr. 1895. 
 
 (c) Appendix, No. 26. Doe d. Ginger v. Roe, 2 Taunt. 397. 
 
 (d) Appendix, Nos. 27, 28.
 
 264 OF CONSOLIDATING ACTIONS. 
 
 attachment will lie against either party for disobedi- 
 ence 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 de- 
 clarations for different premises, the Court will not 
 join them in one action, on the motion of either party, 
 although the claimant 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 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, (a) But where several ejectments are brought 
 for the same premises, upon the same demise, the 
 Court on motion, or a judge at his chambers, will 
 order them to be consolidated : () 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 inhabitants 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 Kenyon, C. J. 
 
 (a) Medlicot v. Brewster, 2 Keb. Burghers, Barn. 176. Roe d. Burl- 
 524. Smith u. Crabb, Stran. 1149. ton v. Roe, 7 T. R. 477. 
 (6) Grimstone d. Lord Gower, v.
 
 HOW TO APPEAR. 
 
 said, it was a scandalous proceeding on the part of 
 the claimant ; and the rule was made absolute, (a) 
 
 When the tenant intends to apply to be made de- 
 fendant, 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 declara- 
 tion, 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 agree- 
 ment for the consent rule, (&) and leave the same at 
 one of the judges' chambers when the proceedings 
 are in the King's Bench, or with the prothonotary 
 when in the 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 for the tenant, if the 
 proceedings are by bill, or the usual appearance, if 
 by original ; and the suit proceeds in his name, in- 
 stead of that of the casual ejector, (c) 
 
 When the landlord and tenant appear jointly, or 
 the landlord appears alone, the same forms are ob- 
 served, mutatis mutandis, together with the addition 
 of counsel's signature to a motion (which is motion 
 of course, and must be annexed to the consent rule) 
 to admit the landlord and tenant, or landlord only, to 
 defend; accompanied also, when the landlord ap- 
 
 (a) 2 Sell. Prac. 144. (c) 2 Sell. Prac. 102. 
 
 (6) Appendix, No. 24.
 
 266 OF THE APPEARANCE. 
 
 pears alone, with an affidavit of the tenant's refusal to 
 appear, (a) 
 
 When the party who wishes to be made defendant 
 is not the tenant, or actual landlord, but has some in- 
 terest to sustain, 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 
 appear 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, (b} 
 
 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 consequently cannot be a wit- 
 ness therein ; and it seems that if he appear and 
 plead, the Court will not afterwards strike out his 
 name upon motion, (c) 
 
 When the landlord is admitted to defend without 
 the tenant, judgment must be signed against the 
 casual ejector, according to the conditions of the con- 
 sent rule. The reason for this practice is, to enable 
 
 (a) Hobsond. Bigland v. Dobson, (b) Roe d. Cook v. Doe, Barn. 
 Barn. 179. 2 Sell. Prac. 102. 39. 178. 
 Appendix, No. 29. (c) B. N. P. 98.
 
 HOW TO APPEAR. 2f>7 
 
 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, 
 instead of the tenant, ought regularly to be made be- 
 fore judgment is signed against the casual ejector, by 
 the opposite party ; and if it be delayed until after 
 that time, the Court will grant the motion, or not, at 
 their discretion. () Thus, where a judgment against 
 the casual ejector was signed, and a writ of posses- 
 sion executed thereon, and it appeared, upon motion, 
 that the landlord's delay in his application arose from 
 the tenant's negligence, in not giving him due notice 
 of the service of the declaration, according to the 
 provisions of statute 1 1 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 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 landlord ample compensation, (b) 
 But in a late case, the Court of Common Pleas, 
 after a recovery in an undefended ejectment, without 
 collusion, and after the lessor of the plaintiff had con- 
 tracted for the sale of part of the premises, and let 
 the purchaser into possession, refused to set aside the 
 
 (a) Dobbs v. Passer, Stran. 975. Burr. 1996. 
 (6) Doe d. Troughton v. Koe,
 
 268 OF THE APPEARANCE. 
 
 judgment and writ of possession upon an applica- 
 tion of this nature, and assigned as their reason, that 
 the concealment of the delivery of the declaration was 
 a matter between the tenant and his landlord, with 
 which the plaintiff's lessor had no concern, (a) 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 resided 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, (b) 
 
 The appearance should, in all cases, be entered of 
 the term mentioned in the notice ; and where the no- 
 tice was to appear in Hilary term, and the tenant en- 
 tered an appearance in Michaelmas term, and did 
 nothing farther, and the plaintiff's lessor, finding no 
 appearance of Hilary term, signed judgment against 
 the casual ejector, the Court held thejudgment regular, 
 but afterwards set it aside upon payment of costs, to 
 try the merits, (c) 
 
 The party, intending to defend the action, having 
 appeared according to the forms above mentioned, 
 the lessor's duty, in consequence thereof, must be our 
 next consideration. 
 
 When the time for appearance has expired, the 
 
 (a) Goodtitle v. Badtitle, 4 Taunt. 186. 
 
 820. (c) Mason d. Kendall v. Iloclg- 
 
 (b) Roe d. Hyde v. Doe, Barn, son, Barn. 250.
 
 OF THE APPEARANCE. 269 
 
 lessor's attorney must search at the proper offices for 
 the agreement 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 secondary, who 
 will file it, and draw up the consent rule there- 
 upon : (a) which consent rule is, in truth, a copy of 
 the agreement, prefixing only the date of drawing it 
 up, omitting the premises in the margin, and adding, 
 u by the Court," instead of the attornies' names, at 
 the end. 
 
 The plea of the general issue, we have before ob- 
 served, is generally left by the defendant with the 
 agreement for the consent rule; 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 defendant's attorney, 
 with notice of trial as in other actions. But if the 
 plea be not left with the consent rule, () the plain- 
 tiff must give a rule to plead, and then judgment 
 may be entered for want of a plea, as in other ac- 
 
 (a) Appendix, No. 25. this plea as null and void, signed 
 
 (b) Where the plea was entitled judgment against the casual ejector; 
 with the true name of the cause, the judgment was set aside with 
 but by mistake in the body of the costs, as irregular, for the plea was 
 plea, the name of the lessor was in- properly entitled, and not a nullity, 
 serted as the person complaining, Goodtitle d. Gardiner v. Badtitle, 
 instead of that of the plaintiff, and Bam. 191. 
 
 the lessor's attorney, looking upon
 
 270 OF THE PLEA. 
 
 tions without a special motion in Court for the pur- 
 pose, (a) 
 
 OF THE PLEA, AND ISSUE. 
 
 The general issue in this action is, not guilty ; (b) 
 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 pos- 
 session, whatever operates as a bar to that right, as a 
 fine with non-claim, the statute of limitations, a de- 
 scent cast, &c. must cause him to fail in proving his 
 possessory title, and consequently entitle the defend- 
 ant to a verdict upon the general issue, (c) As, how- 
 ever, the consent rule was introduced for the pur- 
 poses of justice, the Courts would undoubtedly per- 
 mit the defendant to plead specially, if the particular 
 circumstances of the case should require it. (d) 
 
 A plea to the jurisdiction may be pleaded in eject- 
 ment by permission of the Court, but not otherwise. 
 This permission is necessary, because a plea to the 
 jurisdiction is a plea in abatement, and must there- 
 fore be pleaded within the four first days of the term 
 
 (a) Reg. Hil. 1649, and Trin. 18 trespass in its nature, and in tres- 
 Car. II. B. R. pass accord is a good plea;" but as 
 
 (b) Appendix, No. 30. this plea is quite inapplicable to 
 
 (c) In the time of Lord Coke, the modern uses of the action, the 
 (Peytoe's case, 9 Co. 77,) an ac- Court, it is conceived, would not at 
 cord with satisfaction was held to this time allow a defendant to 
 be a good plea in ejectment, *' be- plead it. 
 
 cause an ejectment is an action of (</) Philips v. Bury, Carth. 180.
 
 OF THE PLEA. 271 
 
 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 ex- 
 piration 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 mot be per- 
 mitted 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 probability expire 
 before cause could be shown and the plea pleaded, 
 unless such plea were pleaded be bene esse in the first 
 instance, (a) 
 
 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 pleaded, and how 
 is the tenant to appear ? The most simple method 
 of avoiding these difficulties, is for the tenant in 
 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 forthwith admitted defendant upon the 
 usual terms, except as far as relates to pleading the 
 general issue, and why he should not be permitted 
 
 (a) Williams d. Johnson v. Keen, 10 East. 523. 
 Blk. 197. Doe d. Morton v. Roe,
 
 OF THE PLEA. 
 
 to plead the facts stated in the affidavit, upon which 
 he moves in lieu thereof, and why the plea already 
 filed by him to that effect, should not be allowed." 
 
 Ancient demesne is a good plea in ejectment ; (a) 
 but it is a plea much discouraged, and the person 
 pleading it must carefully observe every form which 
 the Court deems necessary. As it is a plea in abate- 
 ment, 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 accompanied 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 affi- 
 davit. (6) 
 
 Ancient demesne cannot of course be pleaded where 
 the ejectment is brought for copyhold lands; (c) but 
 if the affidavit state that the lands are ancient de- 
 mesne, the Court will not reject the plea upon a counter 
 affidavit that great part of the lands are copyhold ; 
 but will leave the plaintiff to state such matter in his 
 reply, (d) 
 
 When the party appearing has entered into the 
 consent rule and pleaded, he may move for a rule to 
 reply, before the plaintiff's lessor has joined in the 
 
 (a) Appendix, Nos. 31, 32. (c) Brittle v. Bade, Salk. 185, S. 
 
 (6) Doe d. Rust v. Roe, Burr. C. Ld. Raym. 43. 
 
 1046. Dennd.Wroot v. Fenn,8T. (d) Doe d. Morton v. Roe, 10 
 
 R. 474. East. 523.
 
 OP THE PLEA. 273 
 
 consent rule, and the plaintiff may be non-prossed 
 thereby ; but as the plaintiff is only a fictitious per- 
 son, the defendant will not be entitled to costs, (a) 
 
 The issue must agree with the declaration against 
 the casual ejector in all respects, except in the 
 defendant's name, unless an order for the alteration 
 be obtained ; and if there be a difference between the 
 issue and the declaration, the Court on motion will set 
 it right, (b) But where there was a variance be- 
 tween the description of the premises in the Nisi 
 Prius record, (upon which the plaintiff recovered,) 
 and the issue, and it did not appear how the pre- 
 mises were described in the declaration, the Court 
 refused to set the verdict aside. (<?) 
 
 If the party interested appear and plead, and after 
 having pleaded, withdraw his plea, the judgment 
 must be entered against the party so appearing ; 
 but where the costs of the suit were defrayed by the 
 landlord in the name of his tenants, who gave a 
 retraxit of the plea, and a cognovit of the action, the 
 Court set aside the retraxit and cognovit, and per- 
 mitted the landlord to defend the action in his own 
 name, (d) 
 
 The record and issue are made up with memo- 
 randums, if the proceedings are by bill ; and without 
 
 (o) Goodright d. Ward v. Bad- B. & A. 471. Jones . Tatham, 8 
 title, Blk. 763. Taunt. 634. 
 
 (b) Bass v. Bradford, Ld. Raym. (rf) Doe d. Lock v. Franklin, 7 
 1411. Taunt. 9. 
 
 (r) Doe d. Cotterell v. Wylde, 2 
 
 T
 
 OF THE PLEA. 
 / 
 
 any memorandum, if by original, as in other actions : 
 the time allowed for notice of trial is also the same. 
 
 A plea puis darrien continuance it seems may be 
 pleaded to this action ; but where the plea was that 
 after issue joined one of the lessors of the plaintiff had 
 released to the defendant, the Court held the plea in- 
 sufficient, and said the release ought to have been by 
 the nominal plaintiff; because although in every other 
 respect the Court would look upon the lessor as the 
 interested person, as far as the record was concerned 
 they must consider the nominal plaintiff' as the real 
 party, (a) A release by the nominal plaintiff so 
 pleaded, would certainly, when the old practice pre- 
 vailed, have been a good defence to the action ; but 
 even then the Courts held such a release to be a con- 
 tempt, (6) and it may be doubted whether a judge 
 would receive the plea at the present day. 
 
 When the ancient practice prevailed, if the plaintiff 
 in ejectment after issue joined, and before the trial, 
 entered into any part of the premises, the defendant 
 at the assizes might plead such entry as a plea puis 
 darrien continuance. But this plea cannot now be 
 ever necessary; for the plaintiff, being a fictitious 
 person, cannot enter upon the land ; and if the lessor 
 of the plaintiff should enter, he would be unable at 
 the trial to prove the possession of the defendant, and 
 must consequently fail in his ejectment, (c) 
 
 (a) Doe d. Byne v. Brewer, 4 M. (c) Moore v. Hawkins, Yelv. 
 & S. 300. 180. 
 
 (fc) Ante, 203.
 
 CHAPTER X. 
 
 Of the Evidence in the Action of Ejectment. 
 
 THE proofs, by which a claimant in ejectment is 
 required to support his claim, not only vary with the 
 nature of his title to the premises, but are also de- 
 pendent on the position in which he is placed, with 
 respect to the defendant. When no privity has 
 existed between the parties ; that is to say, when 
 neither the defendant, nor those under whom he 
 holds, have been immediately or derivatively admitted 
 into possession, either by the lessor of the plaintiff 
 himself, or those under whom he claims, the lessor 
 must establish a legal and possessory title to the 
 premises ; (a) because, as has been already observed, 
 it is by the strength of his own title, and not by the 
 weakness of his adversary's, that he must prevail, (a) 
 But where there has been a privity between the 
 parties, as where the relation of landlord and tenant 
 has subsisted between them, or where the defendant 
 has been admitted into possession, pending a treaty 
 for a purchase or on other grounds, (b) proof of title 
 is not required, but instead thereof, the lessor should 
 
 () Ante, 32, 33. (ft) Ante, 108. 123. 
 
 T2
 
 276 OF THE EVIDENCE 
 
 prove that the defendant, or those under whom he 
 holds, (a) were so admitted into possession, and that 
 their right to the possession has ceased : together 
 also, when the privity is not between the immediate 
 parties to the action, with the derivative title of the 
 claimant from the party, by whom the defendant was 
 originally admitted into possession. (6) And the 
 defendant will not be permitted to rebut this evi- 
 dence, by showing that the title of the claimant was 
 originally defective and insufficient, for it would be 
 contrary to good faith to permit a party to controvert 
 the title of him, by whom he has obtained posses- 
 sion; (c) but he is allowed notwithstanding to prove 
 the nature of such title, and to show, that although 
 originally a valid one, it expired before the commence- 
 ment of the action, and that the land then belonged 
 to another, for such a defence is not inconsistent 
 with the terms of the original possession, (d) 
 
 Notwithstanding the terms of the consent rule, 
 it was formerly h olden necessary to prove the de- 
 fendant in possession of the premises in dispute, (e) 
 and plaintiffs were frequently nonsuited on subtile 
 points arising out of this practice, quite independent of 
 
 (a) Barwick d. Mayor of Rich- (d~) England d. Syburn v. Slade, 
 
 mond v. Thompson, 7 T. R. 488. 4 T. R. 682. Doe d. Jackson v. 
 
 (6) Doe d. Biddle v. Abrahams, Ramsbottom, 3 M. & S. 516. Doe 
 
 1 Stark.. 305. Rennie v. Robinson, d. Lowdon v. Watson, 2 Star. 230. 
 
 1 Bing. 147. Baker v. Hellish, 10 Ves. jun. 544. 
 
 (c) Sullivan v. Stradling, 2 Wils. Gravenor v, Woodhouse, 1 Bing. 
 
 208. Driver d. Oxenden v. Law- 38. Phillips v. Pearse, 5 B. & C. 
 
 rence, Blk. 1259. Parker v. Man- 433. 
 
 ning, 7 T. R. 537. Hodson v. (e) Goodright d. Balsh v. Rich, 
 
 Sharpe, 10 East. 355. Doe d. 7 T. R. 327. Fenn d. Blanchard 
 
 Pritchett v. Mitchell, 1 B. & B. 11. v. Wood, 1 B. & P. 573.
 
 IN THE ACTION OF EJECTMENT. 277 
 
 the merits of the case, (a) But by recent orders of 
 the different Courts, the consent rule has been altered, 
 so as to include the confession of possession, as well 
 as of lease, entry, and ouster, (6) and no proof of 
 possession is now required beyond the production of 
 the rule. 
 
 The locality of the premises as described in 
 the declaration, must be proved, (e) but after the 
 plaintiff has established his title to a verdict, the 
 Court will not try the extent of his claim, as defined 
 by particular metes and bounds, (d) 
 
 The title proved must not be inconsistent with the 
 demise in the declaration. When therefore several les- 
 sors declare upon a joint demise, proof of a joint in- 
 terest in the whole premises must be given. But, if a 
 demise is laid by each of several lessors separately, 
 they will be entitled to recover, whether they have a 
 joint or several interest, for a several demise severs 
 a joint tenancy, (e) And in a case where a joint 
 demise was laid by seven trustees of a charity, who 
 were appointed at different times, and the tenant had 
 paid one entire rent to the common clerk of the trus- 
 tees, it was held that such payment of rent should 
 enure in the most beneficial way for the trustees in 
 support of their title as brought forward by them- 
 
 <) Doe d. James v. Stanton, 2 Gunson v. Welsh, 4 Camp. 264. 
 
 B.& A. 371. Doe d. Giles v. War- (d) Doe d. Draper's Company v. 
 
 wick, 5 M. & S. 393. Doe v. Strad- Wilson, 2 Stark. 477. 
 
 ling, 2 Stark. 187. (e) Doe d. Marsack v. Read, 12 
 
 (6) Ante, 262. East. 57. 
 
 (c) Ante, 21820. Vide Doe d.
 
 278 OF THE EVIDENCE 
 
 selves, unless the defendant expressly proved them 
 to be entitled in a different manner. And it was 
 considered that the circumstance of their being ap- 
 pointed at different times was not sufficient evidence 
 for that purpose, (a) 
 
 The claimant need not in any case prove that he 
 has made an actual entry on the premises, unless 
 when a fine with proclamations () has been levied by 
 a party having a sufficient estate to make the fine 
 operative, (c) or when his title would be otherwise 
 barred by the statute of limitations ; (d) but in both 
 these cases, the claimant must prove that he has made 
 an actual entry on the land before the day of the 
 demise in the declaration, and within a year next 
 before the commencement of the action, (e) 
 
 It has already been observed, that the common con- 
 sent rule dispenses, in all cases, with proof of entry 
 and ouster by the defendant. (/) 
 
 As the evidence necessary to establish the lessor's 
 case varies according to the nature of his claim, we 
 shall now separately consider the proofs requisite 
 in support of each particular title ; firstly, when no 
 privity exists between the parties; and, secondly, 
 when such privity does exist. 
 
 Before however we proceed in this inquiry, it will 
 
 (a) Doe d. Clarke v. Grant, 12 (d) Ante, 92. 
 East. 221. (e) Ante, 102. 
 
 (6) Ante, 99. (/) Ante, 263. 
 
 (r) Ante, 94 97.
 
 IN THE ACTION OF EJECTMENT. 279 
 
 be useful to give a short account of the decisions 
 respecting the competency of parties, having an in- 
 terest in the lands, to give testimony concerning 
 them. 
 
 The tenant in possession is not a competent witness 
 to support his landlord's title, inasmuch as he is in- 
 terested in the event of the suit ; for if the verdict be 
 against his landlord, he is liable for the mesne profits, 
 and may also be turned out of possession : (a) nor is 
 his evidence admissible to prove that he, and not the 
 defendant, is really the tenant ; for a verdict against 
 such defendant would have the effect of ejecting him 
 (the witness) from the lands, which is an immediate 
 interest, and outweighs the contrary and remoter 
 effect of subjecting himself by his testimony to a 
 future action, (b) 
 
 So also, a witness, to whom the claimant has agreed 
 to grant a lease of the lands in question, in case 
 he recover them, is incompetent to give evidence 
 against the defendant, (c) So also, where a witness 
 stated that the claimant had formerly assigned to him 
 the premises for a particular purpose, but that he had 
 given up the deed, and did not believe that he had 
 any beneficial interest in them, he was considered 
 incompetent, (c7) Upon the principle of interest also, 
 
 (a) Doe d. Forster v. Williams, Bingham, 4 B. & A. 672. 
 Cowp. 621. Bourne v. Turner, (c) Gilb. Evid. 108. 
 Stran.632. (d) Doe d. Scales v. Bragg. 1 R. 
 
 (b) Doe d. Jones v. Wilde, 5 &M.87. 
 Taunt. 183. Doe d. Lewis v.
 
 OF THE EVIDENCE 
 
 the person having the inheritance of the lands is not 
 an admissible witness, where two persons, both of 
 whom admit his title, are contending for the pos- 
 session under different grants from him, (unless in- 
 deed they claim under grants not rendering rent,) 
 for he is" interested, inasmuch as he may prefer 
 one tenant to another, (a) But where both con- 
 tending parties claimed under the same person, who 
 had become bankrupt, he was permitted to prove, 
 after releasing his surplus and allowance, that the pre- 
 mises in dispute were not included in the first 
 lease. (6) A person who has mortgaged lands, can- 
 not, on the same principle, be an evidence concern- 
 ing them ; for the equity of redemption still remains 
 in him. (c) An heir apparent may, however, be a 
 witness, because his heirship is a mere contingency j 
 but a remainder- man cannot, for he hath a present 
 estate in the land; and this rule extends to the 
 remainder-man in tail, (d) 
 
 But a joint defendant who has suffered judgment 
 by default, is a good witness to prove the other de- 
 fendant in possession, (e) 
 
 So also the declarations of deceased tenants are 
 admissible for the purpose of proving that any 
 
 (a) Fox v. Swann, Styl. 482. Bell (d) Smith v. Blackham, Salk. 
 
 v. Harwood, 3 T. R. 308. 2d3. Doe d. Lord Teynham v. 
 
 (ft) Longchamps v. Fawcett, Tyler, 6Bing.391. 
 
 Peake, N. P. C. 101. (e) Doe d. Harrop v. Green, 4 
 
 (c) Anon. 11 Mod. 354. Esp. 198. Ante, 266.
 
 BY HEIRS. 281 
 
 particular lands formed part of the estate they oc- 
 cupied ; (a) and also to negative an adverse posses- 
 sion. (6) 
 
 Where the ejectment is brought on several demises, 
 and the evidence shows that the title is exclusively 
 in one of the lessors, the other cannot be compelled 
 to be examined as a witness for the defendant, as all 
 the lessors are jointly liable for the costs, (c) 
 
 Let us now consider the proofs to be adduced by a 
 claimant in ejectment, when his title to the lands can 
 be controverted. 
 
 And first, when he claims by descent, as heir of 
 the person last seized. 
 
 When the party claims by descent, he must prove 
 that the ancestor from whom he derives his title, was 
 the person last seized of the lands in fee simple, (d ) 
 and that he, the claimant, is his heir. 
 
 This seisin of the ancestor may be proved by 
 showing, that he was either in the actual possession 
 of the premises, at the time of his death, or in the 
 receipt of rent from, the ter-tenant; for possession is 
 presumptive evidence of a seisin in fee, until the con- 
 trary be shown, (e) But if it is probable that the 
 
 (a) Davies v. Pierce, 2 T. R. 53. (c) Fenn rf. Pewtress v. Granger, 
 
 Outram v. Morewood, 5 T. R. 121. 3 Camp. 178. 
 
 Et vide Ivat v. Finch, 1 Taunt (d) Co. Litt. 11.6. Jenkins d. 
 
 141. Harris v. Pritchard, 2 Wils. 45. 
 
 (6) Doe d. Human v. Pcttit, 5 (e) B. N. P. 103. 
 B. & A. 223.
 
 282 OF THE EVIDENCE 
 
 defendant will rebut this presumption, the lessor 
 should be prepared with other proofs of his ancestors' 
 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 him- 
 self and the person last seised from some common 
 ancestor, or at least from two brothers or sisters, (a) 
 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 show- 
 ing the identity of the several parties. Thus, sup- 
 posing A. the claimant, and B. the person last 
 seized, to be cousins, descended from a common an- 
 cestor C. y B. being the only child of D., the elder son 
 of C.y and A. the only child of E. 9 the younger son of 
 C. In this case A. must prove the marriage of C., 
 the birth and marriage of !>., the birth, marriage, and 
 death of E., the birth and death without issue of B., 
 and his own birth ; (b) for it is a maxim of law, that he 
 who asserts the death of another, who was once living, 
 must prove his death, whether the affirmative issue 
 be that he be dead or living, (c) 
 
 The testimony of persons present when the events 
 happened, or who knew the parties concerned at 
 those periods, and the production of extracts from 
 parish registers, are the most satisfactory modes of 
 
 (a) Roe d. Thorne u. Lord, 2 Blk. (c) Wilson v. Hodges, 2 East. 
 
 1099. 312. 
 
 (6) 2 Blk. Comm. 208, &c.
 
 BY HBIR8. 283 
 
 proving facts of this nature ; and when the claimant 
 is the lineal descendant of the person last seized, 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 seized 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 re- 
 laxed those rules in inquiries of this nature ; and 
 allow hearsay and reputation (which latter is the hear- 
 say 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, (a) 
 
 Thus the declarations of deceased members of the 
 family, whether relations or connexions by mar- 
 riage, (6) are admissible evidence to prove relation- 
 ship ; as who a person's grandfather was, 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; so likewise the declarations of deceased per- 
 sons, as to tfye fact and time of their own marriages, 
 and whether their children were born before or after 
 marriage, are admissible ; (c) though such declarations 
 cannot be received to bastardize their children born 
 
 (a) Higham t>. Ridgway, 10 East. Fuller v. Randall, 2 M. & P. 20. 
 
 120. (c) Goodrighl d. Slevens v. Moss, 
 
 (fr)B. N. P. 294. Vowels v. Young, Cowp. 591. May v. May, B. N. P. 
 
 13 Vez. 148. Doe d. Northey v. 112. 
 Harvey, 1 R. & M. 297. Doe d.
 
 284 OF THE EVIDENCE 
 
 in wedlock, (a) Where likewise a cancelled will of 
 a deceased ancestor was found amongst the papers 
 of the person last seized, it was 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 seized, as the de- 
 claration of his ancestor concerning the state of his 
 family. () 
 
 The reputation of a family may also afford presump- 
 tive evidence of the death of a person without issue.(c) 
 
 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 : (d} nor 
 are the declarations of deceased neighbours, or of the 
 intimate acquaintances, or servants of the family, 
 evidence on questions of this nature ; (e) nor is the 
 hearsay of a relative to be admitted when the relative 
 himself can be produced. (/) It is also necessary in 
 order to entitle the declarations of a deceased relative 
 to be admitted, that they should be made under cir- 
 cumstances, when the relation may be supposed 
 without an interest, and without a biasj and, there- 
 
 () Rex v. Luffe, 8 East. 193. 514. Rex v. Inhabitants of Eris- 
 
 (6) Doe d. Johnson v . Lord Pern- well, 3 T. R. 707. 723. Weeks v. 
 
 broke, 11 East. 505. Sparke, 1 M. & S. 688. Johnson v. 
 
 (c) Doe d. Banning v. Griffin, 15 Lawson, 2 Bing. 90. Et vide 14 
 East. 293. Doe d. Oldham v. Wol- East. 330. 
 
 ley, 8B.&C. 22. (/) Peiidreliw. Pendrell, Stran. 
 
 (d) Rex. v. Inhabitants of Erith, 294. Harrison v. Blades, 3 Campb. 
 8 East. 542. 457. 
 
 (e) Vowels v. Young, 13 Vez. 147.
 
 BY HEIRS. 285 
 
 fore, if they are made on a subject in dispute after the 
 commencement of a suit, or after a controversy pre- 
 paratory 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, (a) 
 
 The presumption of the continuance of human life 
 ends in general at the expiration of seven years, from 
 the time when the person was last known to be 
 living; (6) but such death may under particular cir- 
 cumstances be presumed in a shorter time; as where 
 a party sailed in a vessel which was never afterwards 
 heard of. (c) Proof also of the fact that a tenant for 
 life has not been seen or heard of for fourteen years, 
 by a person residing near the estate although not a 
 member of the family, is primd facie evidence of his 
 death, (d ) 
 
 Reputation has been held good evidence of a mar- 
 riage, in an ejectment brought by an heir, though his 
 parents (whose marriage was the subject in dispute) 
 were both living, (e) 
 
 It need scarcely be stated, that in all cases where 
 the declarations of parties if deceased would be ad- 
 missible in evidence, the parties themselves may 
 
 (a) The case of the Berkeley (c) Watson v. King, 1 Stark. 121. 
 
 Peerage, 4 Campb. 401. (d ) Doe d. Lloyd v. Deakin, 4 
 
 (6) 19 Car. II. c. 6. s. 1. Doe. d. B. & A. 433 . 
 
 George v. Jesson, 6 East. 80. Rowe (e) Doe d. Fleming v. Fleming, 
 
 v. Hasland, Blk. 404. 4 Bing. 266.
 
 OF THE EVIDENCE 
 
 be called as witnesses, whilst living, unless rendered 
 incompetent by interest. 
 
 Entries in family bibles and other books may like- 
 wise be received in evidence in questions of pedigree.(a) 
 So also recitals in family deeds, monumental inscrip- 
 tions, engravings on rings, old pedigrees hung up in 
 a family mansion, and the like, (b) 
 
 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 verified to them on oath, are also al- 
 lowed to be good evidence of pedigrees ; (c) but a 
 recital in an act of Parliament, stating I. S. to be 
 heir at law to a particular person, has been held not 
 to be evidence, (d ) 
 
 When the lessor claims as heir to copyhold premises, 
 he must, in addition to the foregoing evidence, pro- 
 duce the rolls of the manor, which show a surren- 
 der 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, (f) If, how- 
 ever, the ejectment is against the lord, he must either 
 show that he is admitted, or that he has tendered him- 
 
 (a) Whitlocke v. Baker, 13 Vez. B. N.P. 112. 
 514. (e) Rumney u.Eves, 1 Leon. 100. 
 
 (6) Vowels v. Young, 13 Vez. Holdfast d. Woollams v. Clapham, 
 
 148. i East. 600. Doe d. Tarrant v. 
 
 (c) 2 S. N. P. 772. Hcllier, 3 T. R. 162. Ante, 63. 
 
 (d) Anon. 12 Mod. 384 ; et vide
 
 BY HEIRS. 287 
 
 self 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 application out of court, 
 has refused to admit him. (a) 
 
 When he claims as customary heir, he must, after 
 proving 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. (6) Thus, where the custom is that the 
 eldest sister shall inherit, the eldest 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 nephew, (d) 
 
 The usual method of proving these several customs, 
 is by means of the different admissions of the custo- 
 mary heirs upon the court rolls of the manor, pro- 
 duced 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 custom set up 
 by the lessor, an entry upon the rolls, stating the 
 mode of descent of lands in the manor, will be ad- 
 missible evidence, as to the existence of the custom, (e) 
 Where, however, the lessor claimed as youngest 
 nephew, and produced, as the only evidence to sup- 
 Co) Doe d. Burrell v. Bellamy, 2 (d ) 1 Roll. 624. 
 M. & S. 87. Aute, C3. (e) Roe d. Beebee v. Parker, 5 
 
 (b) Co. Copy, 43. T. R. 20. Denn rf. Goodwin v. 
 
 (c) Radcliff v. Chaplin, 4 Leon. Spray, 1 T. R.466. 
 242.
 
 288 OF THE EVIDENCE 
 
 port his title, an admission upon the court rolls of a 
 youngest nephew, as customary heir, at a court-leet 
 and baron held in 1657 ; and for the defendant it ap- 
 peared upon the same rules, 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 
 witnesses, who testified, that they had heard and be- 
 lieved that the custom went no farther;) upon a ver- 
 dict 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 evidence on the part of the 
 lessor, the defendant is entitled to the general reply. () 
 And if, after the pleadings are opened by the junior 
 counsel for the lessor, the defendant's counsel ex- 
 presses himself ready to admit the lessor to be the 
 heir, it will entitle him to open the case, and make 
 the first address to the jury, (c) 
 
 Secondly, of the title by devise. 
 
 
 When the lessor claims as the devisee of a freehold 
 
 (a) Doe d. Mason v. Mason, 3 tingham Summer Assizes, 1813, MS. 
 
 Wils. 63. and by Wood, B. in a subsequent 
 
 (6) Good title d. Revett v. Braham, ejectment between the same parties, 
 
 4T. R. 497. Nottingham Lent Assizes, 1814, 
 
 (c) So ruled by Le Blanc, J. in MS. 
 Fenn d. Wright v. Johnson, Not-
 
 BY DEVISEES. 289 
 
 interest at common law, or of a customary freehold 
 where there is no custom to surrender to the use of 
 the will, (a) he must prove the seisin of his devisor ; (6) 
 and if the devise under which he claims, be of a re- 
 mainder, or a reversion in fee, or the like, he must 
 prove the determination of all the precedent estates. 
 He must also prove the due execution of the will 
 pursuant to the provisions of the statute 29 Car. II. 
 c. 3. s. 5 ; unless it be more than thirty years old, 
 it which case it proves itself; and the age of the will 
 is to be reckoned from the day it bears date, and not 
 from the time of the testator's death, (c) 
 
 When the devise is of a freehold interest, the 
 original will must be produced ; but if the will be 
 lost, an examined copy of it may be proved, or parol 
 evidence may be given of its contents. But neither 
 an exemplification under the great seal, (d) nor the 
 probate under the seal of the Ecclesiastical Court, (e) 
 will be admitted as secondary evidence ; though it 
 seems that the register-book, or ledger-book, in 
 which the will is set out at length, is in such case ad- 
 missible. (/) 
 
 The statutory regulations for the execution of wills 
 containing devises of freehold lauds, are to be found 
 in the fifth section of the statute of frauds, (g) whereby 
 
 (a) Hussey v. Grills, Amb. 299. Gough, 4 T. R. 707. (in notis.) 
 
 (6) Ante. (d ) Comber. 46. 
 
 (c) Doe d. Oldham v. Wolley, 8 (e) Doe d. Ash w.Cal vert, 2Camp. 
 
 B. & C. 22. Lord Rancliffec. Par- 389. 
 
 sons, 6 Dow. 202. M'Kenire v. (/) St. Leger v. Adams, 1 Lord 
 
 Fraser, 9 Vez. 5, et vide n. f to Raym. 731. Anon. Skin. 174. 
 
 the case of Gough d. Calthorpe v. (g) 2D Car. II. c. 3. 
 
 U
 
 290 OF THE EVIDENCE 
 
 it is enacted, that, " all devises and bequests of any 
 " lands, or tenements, devisable either by force of 
 " the statute of wills, or by that statute, or by force 
 " of any particular custom, shall be in writing, and 
 " signed by the party so devising the same, or by 
 " some other person in his presence and by his ex- 
 u press direction, and shall be attested and sub- 
 u scribed in the presence of the devisor by three or 
 " four credible witnesses, or else shall be utterly void 
 " and of none effect." 
 
 This section of the statute of frauds is very loosely 
 worded, and it will be necessary to enter rather largely 
 into the different points, which have arisen respecting 
 the due execution of a will under it. 
 
 The first solemnity required is the signature of the 
 testator ; but it is not necessary that he should sign 
 his name at the bottom of the will ; it is sufficient if 
 his name be at the beginning, or on the side or in any 
 part of it, in his own handwriting. As, for instance, 
 a will in the handwriting of the testator, beginning 
 with the words, " I, A. B., do make this my last will," 
 has been held to be properly signed ; (a) and if the 
 testator cannot write, his mark will be a sufficient 
 signature. (6) But if the will be on several sheets, 
 and it appear to have been the intention of the testator 
 to sign every one, but, from weakness or incapacity, 
 he leave some of them unsigned, it will not, it seems, 
 
 (a)Lemaynev. Stanley, 3 Lev. 1. 185, and Addy v. Grix, 8 Ves. 
 Hilton v. King, 3 Lev. 86. 504. 
 
 (b) Harrison v. Harrison, 8 Ves.
 
 BY DEVISEES. 291 
 
 be a sufficient execution within the statute, (a) The 
 effect of sealing alone is not yet quite decided ; but 
 it is the better opinion, that it is not a sufficient sig- 
 nature, (b) 
 
 It is not required by the statute, that the witnesses 
 should see the devisor sign, or that he should sign in 
 their presence, or that they should be informed of 
 the nature of the instrument they are about to attest ; 
 it is sufficient, if the devisor declare to them, that the 
 signature is his handwriting, or without such declara- 
 tion, if the whole body of the will, as well as the 
 name, be written by himself, (c) And in a late case 
 where the testator was blind, the Court of Common 
 Pleas determined, that it was not necessary on that 
 account, under the statute, to read over the will, pre- 
 vious to the execution, in the presence of the attesting 
 witness, although if there were other circumstances 
 inducing a suspicion of fraud, such an execution would 
 materially strengthen the presumption, (d ) 
 
 The next formality is the attestation and subscrip- 
 tion. It must be attested and subscribed by three, or 
 more witnesses, but it is not necessary thatthe at- 
 testation and subscription of all the witnesses should 
 
 (o) Right d. Cator v. Price, Doug. 454. Ellis v. Smith, 1 Ves. jun. 1 1 . 
 
 241. S. C. 1 Dick. 225. Trymner v. 
 
 (b) Lemayne v. Stanley, 3 Lev. 1. Jackson, cited 1 Ves, 487, recog. 
 Lee v. Libb, 1 Show. 69. S. C. Carth. 2 Ves. 258. Stonehouse v. Evelyn, 
 35. Warneford v. Warneford, 3 P. Win. 252. Peate v. Ougly, 
 Stran. 764. Smith v. Evans, 1 Wils. Comyn. 197. White v. Trustees of 
 313. Ellis v. Smith, 1 Ves. jun. 11. British Museum, 6 Bing. 310. 
 
 S. C. 1 Dick. 225. (d) Longchamp d. Goodfellow v. 
 
 (c) Grayson . Atkinson, 2 Ves. Fish, 2 N. R.415. 
 
 u2
 
 OP THE EVIDENCE 
 
 be at one time. Hence, where the devisor published 
 his will in the presence of two witnesses, who sub- 
 scribed it in his presence, and some time after he 
 sent for a third witness, and published it in his pre- 
 sence also, the will was holden to be duly attested, (a) 
 But it is necessary that all the witnesses attest the 
 same instrument, and that the instrument attested be 
 that by which the lands are intended to pass. There- 
 fore, where a testator devised his lands by a will, 
 made in the presence of, and attested by two wit- 
 nesses only, and about a year after made a codicil, 
 whereby he revoked a legacy given by his will, and 
 declared that the will should be ratified and confirmed 
 in all things, except as altered by that writing, and 
 that his codicil should be taken as part of his will ; 
 and executed this codicil in the presence of one of the 
 former witnesses, and another person, neither the 
 first will, nor the other witness to it, being present, 
 it was holden to be an insufficient attestation. () 
 And where a testator, by a will not witnessed, devised 
 lands, and afterwards made a codicil, and taking the 
 codicil in one hand, and the will in the other, said, 
 " This is my will whereby I have settled my estate, 
 and I publish this codicil as part thereof," the signa- 
 ture of the codicil, by the testator and three witnesses, 
 was held insufficient to render the will valid, (c] But 
 if there be several instruments written by the testator 
 upon one paper, and it plainly appear that his inten- 
 
 (a) Gryle v. Gryle, 2 Atk. 170, Carth, 35. 
 
 (n.) Ellis v. Smith, 1 Ves. jun. 11. (c) Periphrases. Lord Lansdowne, 
 
 14. Grayson v. Atkinson, 2 Ves. cited Com. 334. Attorney General 
 
 454. 458. v. Barnes, Free. Cha. 270. 
 
 (6) Lee v. Libb, 3 Lev. 1. S.C.
 
 BY DEVISEES. "293 
 
 tion was that all should form but one will, and not a 
 will and codicil, in such case the execution of the last 
 instrument will be considered as an execution of the 
 whole, (a) So also if a will be written upon several 
 sheets of paper, but at one time, it will be valid, al- 
 though all the sheets are not executed by the testator, 
 nor signed by the witnesses, nor even seen by them ; 
 provided the last sheet be regularly signed and at- 
 tested, and every part of the will be present at the 
 time of the execution ; of which latter fact the pre- 
 sumption of law will be in favour, should the different 
 sheets correspond, (b) 
 
 An attestation by a mark has been adjudged to 
 be a sufficient execution within the meaning of the 
 statute, (c) 
 
 The attestation and subscription of the witnesses 
 must be in the presence of the testator, but proof 
 need not be given that the testator actually did see 
 the witnesses subscribing : their attestation is suffi- 
 cient if it appear that he might see them, (d) Thus, 
 where the witnesses signed in a room adjoining to 
 the one which contained the testator's bed, upon a 
 table opposite to the door of communication, it was 
 holden to be sufficiently in the testator's presence, (e) 
 So also, where the testator executed his will in his 
 
 (a) Carleton d. Griffin v. Griffin, (d) Todd d. Lord Winchelsea, 1 
 
 Burr. 549. M. & M. 13. Longford v. Eyre, 1 
 
 (6) Bond v. Seawell, Burr. 1773. P. Wms. 740. 
 
 S. C. Blk. 407. B. N. P. 264. (e) Shires v. Glasscock, Salk. 688. 
 
 (c) Harrison v. Harrison, 8 Ves. Davy v. Smith, 3 Salk. 395. 
 185. Addy v. Grix, ib. 504.
 
 '294 
 
 carriage, and the witnesses signed their names in a 
 room hard by, the carriage being in such a situation, 
 as to enable the testator to see what was passing in 
 the room, the will was held to be valid, (a) But if the 
 testator could not possibly see the witnesses subscribe, 
 as if they subscribe in another room, out of sight, al- 
 though by the testator's express directions, the exe- 
 cution will not be good : the design of the statute 
 being to prevent a wrong paper from being intruded 
 on the testator, in the place of the true one. \b] And 
 upon this principle, if the testator, between the time 
 of his own subscription, and the subscription of the 
 witnesses, lose his mental powers, it will invalidate the 
 will, although signed in his presence, (c) 
 
 The clause of attestation generally expresses, that 
 the witnesses subscribed in the presence of the testa- 
 tor ; but such a statement is not absolutely necessary, 
 and if omitted, the jury will not be concluded from 
 finding that the will was duly subscribed, although 
 all the witnesses are dead, and their signatures proved 
 in the common way. (d) 
 
 With respect to the credibility of the attesting 
 witnesses, it may be observed generally that they 
 must, at the time of their attestation, (<?) have the 
 
 (a) Casson v Dade, 1 Bro. C. C. 241. 
 
 99. (d) Hands v. James, Com. 531. 
 
 (b) Ecclestonv. Petty, Carth. 79. Brice v. Smith, Willes, 1. Croft v. 
 Broderick v. Broderick, 1 P. Wms. Pawlet, Stran. 1109. 
 
 239. Machel v. Temple, 2 Show. (e) Pendock d. Mackinder v. 
 
 288. Mackinder, Willes, 665. 
 (r) Right d. Cator v. Price, Doug.
 
 BY DBVISEBS. 295 
 
 use of their reason, (a) be sensible of the obliga- 
 tion of an oath, (b) and unconvicted of any infa- 
 mous crime, (c) Formerly a devisee taking a bene- 
 ficial interest under the will, was considered not 
 a credible witness to prove its execution within 
 the intent of the statute ; (d) but doubts being en- 
 tertained, whether his credibility might not be re- 
 stored by a release, payment, or extinguishment of 
 all his interest, (e) it is enacted by the statute 25 G. 
 II. c. 6, (after reciting that it had been doubted who 
 were to be deemed legal witnesses within the statute 
 of frauds,) " that if any person shall attest the exe- 
 " cution of any will or codicil (to whom any bene- 
 " ficial devise, legacy, estate, interest, gift or ap- 
 " pointment, affecting any real or personal estate, 
 " except charges on land, &c. for payment of debts 
 " shall be given,) such devise, legacy, &c. shall so 
 " far only as concerns such person attesting the 
 " execution, or any person claiming under him, be 
 " utterly null and void ; and such person shall be 
 " admitted as a witness to the execution of such will 
 " or codicil, within the intent of the said act, not- 
 " withstanding such devise, legacy, &c. And in case 
 " any will or codicil shall be charged with any debt, 
 * s and any creditor, whose debt is so charged, shall 
 " attest the execution of such will or codicil, every 
 " such creditor, notwithstanding such charge, shall 
 " be admitted as a witness to the execution of such 
 
 (a) Gilb. Evid. 109. (d) Billiard v. Jennings, 1 Ld. 
 
 (6) Hales, P. C. 2 vol. 279. Raym.505. S. C. Com. Rep. 91. 
 
 Oraichund v. Barker, Willes, 538. (e) Vide Anstey v. Dowsing, 2 
 
 (c) SlGco. III. c. 35. Chaterr. Stran. 1253. Wyndham v. Chet- 
 
 Hawkins, 3 Lev. 426. wynd, 1 Burr. 414.
 
 296 OF THE EVIDENCE 
 
 " will or codicil, within the intent of the said act. 
 " Provided always that the credit of every such wit- 
 (< ness so attesting the execution of any will or codi- 
 " cil, in any of the cases within this act, and all cir- 
 " cumstances relating thereto, shall be subject to the 
 " consideration and determination of the Court, and 
 " the jury, before whom any such witness shall be 
 " examined, or his testimony, or attestation made use 
 " of, in like manner as the credit of witnesses in all 
 <e other cases, ought to be considered and determin- 
 " ed." The provisions of this statute extend only to 
 cases where the attesting witness is himself the de- 
 visee or legatee, and as to him, and any person 
 claiming under him, it makes the devise or legacy 
 absolutely void; but, they do not extend to cases 
 where the attesting witness is the husband or wife of 
 the devisee or legatee, (a) and a will has been held to 
 be insufficiently attested, which devised to the wife of 
 one of the subscribing witnesses a reversion in fee, 
 upon the determination of an estate for life, although the 
 wife died before the determination of the life estate : 
 the interest which renders an attesting witness incom- 
 petent under the statute, being an interest at the time 
 of the attestation, and not at the time when his testi- 
 mony is required. (#) 
 
 An executor, and also the wife of an executor, taking 
 no beneficial interest under the will, are credible 
 witnesses within the meaning of the statute, (c) 
 
 (a) Bettison v. Bromley, 12. East. 589. 
 
 250. Hatfield v. Thorpe, 5 B. & A. (c) Phipps. v. Pitcher, 2 Mars. 
 
 589. 20. Bettison v. Bromley, 12 East. 
 
 (6) Hatfield v. Thorpe, 5 B. & A 250.
 
 BY DEVISEES. 297 
 
 The result of the foregoing inquiry seems to be, 
 that in order to prove a will duly executed within the 
 statute of frauds, it must appear, that it was signed 
 by the testator ; that it was published by him in the 
 presence of three or more credible witnesses, either 
 at the same, or different times ; that the witnesses 
 subscribed their names respectively in the presence 
 of the testator ; and that they all signed the same in- 
 strument. 
 
 These facts must be proved by the subscribing 
 witnesses, if they are alive and can be produced. 
 But if one witness can prove the whole execution, 
 (as that the testator signed in the presence of himself 
 and two other witnesses, or that he acknowledged his 
 signing to each of them, and that each of the wit- 
 nesses subscribed in his presence,) this will be suffi- 
 cient proof of the will, without calling the others, (a) 
 But if the witness who is called, can only prove his 
 own share of the transaction, as must happen where 
 the testator acknowledged his signing to the witnesses 
 separately, the other witnesses must be called. If 
 also the will is disputed by the heir-at-law, he is 
 always entitled to the testimony of all the subscribing 
 witnesses; but then he must produce them him- 
 self, if the testimony of one is sufficient for the 
 devisee. 
 
 If all the witnesses are dead, or insane, or out 
 
 (a) The rule is different in equity ; Hinsdon v. Kersey, 4 Burn. EC. 
 
 and when a bill is filed in Chancery Law. 93. Ogle v. Cook, 1 Vez. 
 
 to establish a will, all the witnesses 177. Townsend v. Ives, 1 Wils. 
 
 must be examined by the plaintiff. 216.
 
 OF THE EVIDENCE 
 
 of the jurisdiction of the Court, proof of the hand- 
 writing of the devisor and witnesses, or of the devisor 
 alone, if no proof of the handwriting of the witnesses 
 can be obtained, will be sufficient without evidence 
 of the solemnities, (a) 
 
 If a subscribing witness should deny the execution 
 of the will, he may be contradicted as to that fact by 
 another subscribing witness ; (6) and even if they all 
 swear, that the will was not duly executed, the devisee 
 will be allowed to go into circumstantial evidence to 
 prove its due execution, (c) So also if one of the 
 subscribing witnesses impeach the validity of the will 
 on the ground of fraud, and accuse other witnesses 
 who are dead, of being accomplices in the fraud, 
 the devisee may give evidence of their general cha- 
 racter, (d) 
 
 When an ejectment is brought by the devisee of a 
 copyholder, he must prove his own admission, and the 
 admission of his testator ; (e) and these facts will be suf- 
 ficiently established, by producing the original entries 
 on the rolls of the manor by the proper officer (which 
 entries the Courts will compel the lord to permit 
 his tenant to inspect,) (f) and proving the identity of 
 the parties admitted, (g) without also producing the 
 
 (a) Hands v. James, Com. 531. 3 Esp. 284. S. C. 4 Esp. 50. 
 
 Croft v. Pawlett, Stran. 1109. (e) Roe d. JefFerey v. Hicks, 2 
 
 (6) Vide Alexander v. Gibson, 2 Wils. 13. Doe d. Vernon v. Vernon, 
 
 Campb. 556. 7 East. 8. Ante, 64. 
 
 (c) Lowe v. Jolliffe, Blk. 365. (/) Folkardu. Hemet,Blk. 1061^ 
 Pike v. Badmering, cited Stran. The King v. Shelly, 3 T. R. 141. 
 1096. Gilb. Evid. 69. B.N.P. 264. (if) Doe rf. Hanson v. Smith, 1 
 
 (d) Doe d. Walker v. Stephenson, Campb. 197.
 
 BY DEVISEES. 299 
 
 stamped copies required by the stat. 55 Geo. III. c. 
 184. (a) The will of the devisor must likewise be 
 proved; but as copyhold lands are not within the 
 statute of frauds, it will be sufficient to show a will in 
 writing, (b) although it be neither signed by the tes- 
 tator, nor attested by any witnesses, (c) 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, (d] 
 
 It has been said, that any paper, which the Ecclesi- 
 astical Court would hold to be a will, shall be suffi- 
 cient to pass a copyhold, (e) and it is therefore 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, although no probate has in fact 
 been granted. (/) 
 
 The stat. 55 Geo. III. c. 192, which dispenses with 
 the necessity of the surrender of copyholds to the use 
 of the will of the copyholder, has been held to extend 
 to those cases only, where the surrender is merely 
 formal ; and therefore, where by the custom of a 
 manor, a feme covert was allowed by will to pass her 
 
 (a) Doe d. Bennington v. Hall, (rf) 1 Ander. 34, 85. 
 
 16 East. 208. (e) Carey v. Askew, 2 Bro. Cha. 
 
 (b) 32 Hen. VIII. c. 1. Rep. 58. 
 
 (c) Nash v. Edmunds, Cro. Eliz. (./") Doe d. Smith*. Smith, I'eakc 
 100. Doe d. Cook v. Danvers, Evid. 456. 
 
 7 East. 299.
 
 300 OF THE EVIDENCE 
 
 copyholds, the same having been previously surren- 
 dered by the husband and wife, (the wife being 
 examined separate and apart) and the wife subse- 
 quently to the statute made her will, but without 
 making a previous surrender, the copyholds did not 
 pass ; the surrender being matter of substance, and 
 requiring to be accompanied by the separate exami- 
 nation of the wife, (a) 
 
 If the lessor be the legatee of a term for years, he 
 must give in evidence the probate of the will, and 
 prove the assent of the executor to the bequest ; for 
 where a person bequeaths either specifically, or gene- 
 rally, goods or chattels, real or personal, and dies, the 
 legatee cannot take them without the assent of the 
 executors, (b) 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 seized 
 in fee until the contrary is shown, (c) 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 
 defendant to a bill in equity, in which the defend- 
 ant stated, that "he believed the lessor was pos- 
 sessed of the leasehold premises in the bill men- 
 tioned," it was held, as against the defendant, sufficient 
 evidence that the interest of the testator was only a 
 chattel interest, (d) 
 
 When the lessor of the plaintiff claims under a 
 
 (a) Doe d. Nethercotc v. Bartle, 5 (c) Ante. 
 
 B.&A.492. (d) Doe d. Digby v. Steel, 3 
 
 (6) 1 Inst. Ill, (a). Ante, 71. Canipb. 115.
 
 BY TENANTS BY ELEGIT, &XJ. 301 
 
 will, and the defendant under a codicil, the validity of 
 which is the question between them, the defendant, 
 on admitting the title of the lessor, has a right to 
 begin, and to have the general reply, (a) 
 
 Thirdly, of the evidence necessary when a party 
 claims the land under an execution. 
 
 When an ejectment is brought by a tenant by 
 elegit, (b) and the debtor is himself in possession 
 of the land, the only evidence necessary is an ex- 
 amined copy of the judgment roll, containing the 
 award of the elegit, and return of the inquisition. 
 But if 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 possession has ceased, (c) or (should the party in 
 possesion hold adversely to the debtor) be prepared 
 with evidence of his debtor's title, (d) It is not neces- 
 sary in any case to prove a copy of the elegit and 
 inquisition, (e) 
 
 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 liberate, (f) The 
 
 (a) Doe d. Corbctt . Corbett, 3 8 T. R. 2. 
 
 Camp. 368. (e) Ramsbottom v. Brickhurst, 'i 
 
 (b) Ante, 09. 109. M.&S 565. 
 
 (c) Ante. (./') Hammond v. Wood, 2 Salk. 
 (</) Doe d. Da Costa v. Wharton, 563.
 
 302 OF THE EVIDENCE 
 
 same proofs are also necessary, when a third per- 
 son is in possession, as in the case of a tenant by 
 elegit. (a) 
 
 When the ejectment is to recover lands taken in 
 execution, under a writ of fieri facias, on a judgment 
 obtained against a termor, if the party in the ori- 
 ginal action, in which the execution issues, is the 
 claimant, the judgment must be proved, (b) But 
 the writ alone is a sufficient title to the vendee of the 
 sheriff, (c) And where an assignment of a lease by 
 deed taken in execution, was made by the under- 
 sheriff in the name, and under the seal of office of the 
 sheriff, it was held unnecessary to prove his au- 
 thority, (d) 
 
 Fourthly, of the proofs to be given, when^the claim- 
 ant is a parson. 
 
 When a parson brings ejectment for the parsonage- 
 house, glebe, or tithes, he must prove his admission, 
 institution, and induction ; (<?) 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 his quare 
 impedit.(f) 
 
 Presentation may be by parol, or by writing in 
 
 (a) Ante, 301. (d) Doe d. James v. Brown, 5 E. 
 
 (b) Doe d. Bland v. Smith, 2 & A. 243. 
 
 Star. 199. S. C. Holt. 589. (e) Snow d. Crawley v. Phillips, 1 
 
 (c) Doe d. Batten v. Murless, 6 Sid. 220. 
 
 M.&S. 113. Et vide Doe d. Em- (/) B. N. P. 105. 
 met v. Thorn, 1M. & S. 425.
 
 BY RECTORS, &C. 303 
 
 the nature of a letter to the bishop ; (a) in the latter 
 case it may be proved by production of the letter ; in 
 the former by a witness who was present and heard 
 it; but it cannot be proved by the person making 
 the presentation, although he were only grantee of 
 the avoidance. (6) The ceremony of institution may 
 be proved by the letters testimonial of institution ; 
 or by the official entry in the public register of the 
 diocese, which ought regularly to record the time of 
 the institution, and on whose presentation it was 
 given. This entry, therefore, if regularly made, is 
 proof of the presentation, as well as of the institution. 
 The induction may be proved, either by some person 
 present at the ceremony, or by the indorsement on 
 the mandate of the ordinary to induct, or by the 
 return of the mandate, if any has been made, (c) 
 
 Proof was formerly required that the claimant 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 defendant 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, (d) 
 
 Entries made by a deceased rector in his books, 
 
 (a) Co. Lilt. 120, (a). B. N. P. (c) Chapman v. Beard, 3 Ans. 
 105. The Kingw. Eriswcll,3T. R. 942. 
 
 723. (d) Powell v. Milburn, 3 Wils. 
 
 (b) B. N. P. 105. 355. S. C. 2 Black. 85 1.
 
 304 OP THE EVIDENCE 
 
 may be given in evidence by his successor, (a) upon a 
 question of tithes ; and he is also entitled to give in 
 evidence such terriers as have been regularly made 
 and preserved in the proper 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, (b) 
 and are found either in the bishop's register office, (c) 
 or in the register of the archdeacon of the diocese. (cT) 
 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 evidence. But where a terrier was found 
 in the registry of the dean and chapter of Lichfield, 
 it was admitted in evidence against one of the pre- 
 bendaries, upon the principle that there appeared to 
 be a proper connexion between the terrier, and the 
 place where it was found, (e) 
 
 An ejectment for a parsonage and glebe, will not 
 be supported, by showing that the defendant entered 
 and took the tithes belonging thereto ; because the 
 tithes and the rectory are not the same. (/) 
 
 When a lay impropriator brings an ejectment for 
 tithes, the strict proof of title is to- show that the 
 rectory originally belonged to one of the dissolved 
 
 (a) Glynn v. Bank of England, 1406. 
 
 2 Vez. 38. 43. Roe d. Brune v. (tf) Potts v. Durant, 4 Gwill. 
 
 Rawlings, 7 East. 279.290. 1050. 1054. 
 
 (6) B. N. P. 248. Earlu. Lewis, (e) Miller v. Foster, 4 Gwill. 1406. 
 4 Esp. 3. (/) Hem v. Stroud, Latch. 61. 
 
 (r) Atkins v. Hatton, 4 Gwill.
 
 BY ASSIGNEES OF BANKRUPTS, &C. 305 
 
 monasteries, and was granted by the crown to those 
 under whom he claims ; (a) but, as deeds and instru- 
 ments are liable to be lost, length of possession, and 
 old deeds conveying tithes, have been deemed suffi- 
 cient evidence of title, (b) 
 
 Fifthly, of the proofs required, when the action is 
 brought by a guardian, for the lands of an infant. 
 
 If the claimant be a guardian in socage, (c) he must 
 prove the seizin of the person from whom his ward 
 claims; (d) the heirship of the ward ; that he was 
 under the age of fourteen years at the time of the 
 demise in the declaration ; and that amongst those 
 relations to whom the inheritance cannot descend, 
 he himself is the next of blood to the ward, (e) 
 
 If the claimant be a testamentary guardian ap- 
 pointed by stat. 12 Car. II. c. 24. s. 8, he must prove 
 the seizin of the father; the due execution of the deed 
 or will, which appoints him guardian ; and the mi- 
 nority of the ward at the time of the demise. 
 
 Sixthly, of the proofs required by persons claiming 
 in a representative character, that is to say, by as- 
 signees of bankrupts, or insolvent debtors, (/) and 
 by executors and administrators, (g} 
 
 Assignees of a bankrupt must prove the title of the 
 
 (a) Vide Com. 651. (e) Litt. Sec. 123. Doe Iligge 
 
 (6) Kinaston v. Clarke, 5 T. R. v. Bell, 5 T. R.471. 
 265, in not is. (f) Ante, 70. * 
 
 (c) Ante, 66. ( g ) Ante, 67. 
 
 (d) Ante, 28.
 
 OF THE EVIDENCE 
 
 bankrupt to the premises, as when the bankrupt him- 
 self is the lessor of the plaintiff; and if the lands are 
 freehold, they must prove the bargain and sale to 
 them by the commissioners, and its enrolment, (a) 
 Their representative character as assignees must be 
 proved in the same manner, and subject to the same 
 rules, as in other actions, (b) 
 
 The assignee of an insolvent debtor, after proving 
 the title of the insolvent, is only required to produce a 
 copy of the record of the conveyance and assignment 
 to such assignee, as filed in the Insolvent Court ; but 
 such copy must be written on parchment, and pur- 
 port to have the certificate of the provisional as- 
 signee of the Court, or his deputy, indorsed there- 
 on, and be sealed with the seal of the Court. (<?) 
 
 When an ejectment is brought by a personal re- 
 presentative, he must show his representative cha- 
 racter by producing the probate of the will, or letters 
 of administration, or the book of the Ecclesiastical 
 Court, wherein they are entered, (d) in addition to the 
 proof of his testator's, or intestate's, title. 
 
 Seventhly, of the proofs by mortgagees, (e) 
 
 When the lessor of the plaintiff is the mortgagee of 
 the premises, and the mortgagor is himself the defend- 
 ant, proof of the due execution of the mortgage deeds 
 
 (a) Esp. N. P. 431.438. Doerf. (d) Garret v. Lister, 1 Lev. 25. Elden 
 
 Marsacku. Read, 12 East. 57. .Keddell,8 East. 187. GW.B.N. P. 
 
 (6) 6 Geo. IV. c. 16. s. 90. 92. 108. 
 
 (r) 7 Geo. IV. c. 57. s. 19 ; 1 Wm. (e) Ante, CO. 
 IV. c. 38. s. 1.
 
 BY A LORD OP A MANOR. 307 
 
 is the only evidence required, (a) If the ejectment 
 be against a third person, who holds the mortgaged 
 lands as tenant to the mortgagor, it will be ne- 
 cessary, in addition to the proof of the mortgage 
 deeds, to give evidence of such tenancy, and either 
 of its regular determination, or that it was created by 
 the mortgagor subsequently to the execution of the 
 mortgage deed, (b) Proof of the title of the mort- 
 gagor is only necessary when the defendant holds the 
 land adversely to such title. 
 
 The proofs are the same when the assignee of a 
 mortgagee is the claimant, with the additional proof of 
 the derivative title of the assignee from the mortgagee. 
 
 Eighthly, of the proofs by a lord of a manor, and 
 by copyholders. 
 
 When a lord seizes the land as forfeited pro de- 
 fec/u tenentis, if he seize absolutely, he must prove a 
 custom in the manor entitling him to do so ; but if he 
 seize only quonsque, the custom need not be proved ; 
 and an absolute seizure unwarranted by th ecustom, 
 cannot afterwards be set up as a seizure quousque. (c) 
 He must also prove that the regular proclamations have 
 been made, and in one report of Lord Salisbury's 
 case, (c) it is said, that the proclamations must be 
 proved by vivd voce evidence, and that the entry 
 thereof on the court rolls is not sufficient ; but no 
 
 (a) Ante, 108. R. 378. Doe d. Clark v. Trap- 
 
 (t) Keech v. Hall, Doug. 21. paud, 1 Stark. 281. 
 
 Thunder d. Weaver v. Belcher, 3 (c) Lord Salisbury's case, 1 Lev. 
 
 East. 449. Birch v. Wright, 1 T. C3, S. C. 1 Keb. 287. 
 
 x 2
 
 308 OF THE EVIDENCE 
 
 mention is made of this point in the other report of 
 the same case, nor does it appear in a modern similar 
 decision, that any evidence of this nature was re- 
 quired, (a) 
 
 When the lord of a manor brings an ejectment 
 for a forfeiture, he must prove that he was lord at 
 the time of the forfeiture committed (unless the act of 
 forfeiture destroys the estate, in which case, the heir 
 of such lord may also take advantage of it,) (#) 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 sufficient 
 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 re- 
 quired of the presentment of the forfeiture, nor of 
 the entry, or seizure of the lord ; (c) nor will the 
 defendant be allowed, having been admitted and 
 done fealty, to show that the legal estate was not in 
 the lord at the time of admittance, (d) 
 
 A lord of a manor cannot maintain ejectment for 
 mines upon his manor, without proof that he has 
 been actually possessed of them within the last twenty 
 
 (a) Doed.Tarrantu. Hellier,3T. 11 East. 56. B.N.P. 108. Et vide 
 
 B. 162. Watk. Copy, v. i. 324 to 353. 
 
 (6) Ante, 61. (d) Doe d. Nepean u. Budden, 5 B. 
 
 (c) Roe d. Jeffreys v. Hicks, 2 & A. 626. 
 Wils. 13. Doe d. Foley v. Wilson,
 
 BY COPYHOLDERS. 309 
 
 years ; because they are a distinct possession from 
 the manor, and may be of different inheritances, (a) 
 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 without pos- 
 session, (b) 
 
 The doctrine of presumption extends to copyhold 
 lands, and upon proper evidence an enfranchise- 
 ment of them may be presumed even against the 
 crown, (c) 
 
 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, (d) 
 
 But where the lessor claims as heir, or under a 
 grant of a reversion by the lord expectant on a life 
 estate, proof of admittance is unnecessary, (e) 
 
 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 copyholder to make leases for 
 years, or that the licence of the lord was obtained 
 before the lease was granted. (/*) 
 
 (a) Rich v. Johnson, Stran. 1142. (e) Ante, 64. Roe d. Cosh v. 
 
 (6) R. N. P. 102. Loveless, 2 B. & A. 453. 
 
 (c) Roe d. Johnson w. Ireland, (/) Co. Copy. s. 5 1.2. Watkins 
 1 1 East. 220. on Copyhold, 30. 
 
 (d) Ante, 64.
 
 310 OF THE EVIDENCE 
 
 We must now consider the proofs required when 
 a privity exists between the defendant and lessor of 
 the plaintiff, or those under whom he claims. 
 
 When such privity exists, the claimant instead of 
 proving his title, must show the existence and termi- 
 nation of the privity ; for a privity will not be 
 presumed to exist without proof, but being proved 
 the presumption is in favour of its continuance. 
 Thus, if the defendant be let into possession pending 
 a negociation for a purchase or a lease, proof must 
 be given that he was so let into possession, and that 
 the negociation was broken off before the day of the 
 demise in the ejectment, (a) 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 
 so forth, (a) 
 
 When the relation 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 already observed, (6) in three several ways. 
 First, by the efflux of time, or the happening of a 
 particular event. Secondly, by a notice from the 
 
 (a) Ante, 121. In a case, where the lease against an ejectment about 
 
 the landlord by his own negli- to be brought by his landlord, al- 
 
 gence, suffered a third person to though only one year and three 
 
 recover in ejectment against his quarters of the term was unex- 
 
 tenant, who held under a lease, pired. Baker v. Mellish, 10 Ves. 
 
 and who attorned to such third 544. Et vide Doe d. Powell v. King, 
 
 person, the Court of Chancery re- Forrest. 19. 
 
 strained the tenant from setting up (6) Ante, 104.
 
 BY LANDLORDS. 311 
 
 landlord to the tenant to deliver up the possession, or 
 vice versd ; 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-performance of a cove- 
 nant. 
 
 When the tenancy is determined by the efflux of 
 time, if the demise be by deed, or other writing, the 
 lessor has only to prove the counterpart of the lease 
 by one of the subscribing witnesses ; and it is not 
 necessary that he should have given notice to the 
 tenant to produce the original lease, to enable him so 
 to do. (a) If there is no counterpart, notice to pro- 
 duce the original lease should be given, and then, but 
 not otherwise, the claimant will be entitled, if the ori- 
 ginal lease be not produced, to give secondary evi- 
 dence of its contents. If the demise be by parol, the 
 agreement may be proved by any person present at 
 the making of it j but if it should appear on the trial 
 by the witnesses on the part of the plaintiff, that a writ- 
 ten agreement has at any time been drawn up between 
 the lessor, and the party under whom the defendant 
 came into possession, it must be produced by the 
 plaintiff, (b) It is not necessary for the lessor to prove 
 that he, or those under whom he claims, has received 
 the reserved rent within the last twenty years, (c) 
 
 Where the tenancy is determined by the happening 
 of a particular event, the lessor must of course also 
 
 (a) Roed. West v. Davis, 7 East. 6 Bing. 533. 
 
 363. (r) Orrell v. MaddoXjllunn.Eject. 
 
 (6) Fenn d Thomas . Griffith, Appen. 438.
 
 312 OF THE EVIDENCE 
 
 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 defend- 
 ant, 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 expires at any other period than 
 the end of the year of the tenancy, it will be neces- 
 sary to show the custom of the country where the 
 lands lie, or an express agreement, by which such no- 
 tice is authorised. () 
 
 The tenancy of the defendant is commonly ad- 
 mitted, and may be proved when necessary, if no 
 direct evidence can be given of the demise, by de- 
 clarations on the part of the tenant, the fact of pay- 
 ment of rent (and it is advisable to give the tenant 
 notice to produce his receipts) or the like. 
 
 The service of the notice, (c) and the authority to 
 serve it, will be proved by the person who delivered 
 it to the tenant ; but if there is a subscribing witness 
 thereto, such subscribing witness must also be called,(flT) 
 although it should happen that he only witnessed the 
 signature of the landlord, and did not deliver the 
 notice himself. The contents of the notice may be 
 proved by a duplicate original, which should be com- 
 
 (a) Ante, 126. (<0 Doe. d. Sykes v. Durnford, 
 
 (6) Ante, 140. 2 M. & S. 62. 
 
 (<) Ante, 133.
 
 BY LANDLORDS. 313 
 
 pared with the notice actually seved, 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, (a) 
 
 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, (b) 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 circum- 
 stance, that an authority was originally given by the 
 parties not joining in the notice, to their co-tenants.(c') 
 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, (d) 
 
 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 never- 
 theless, some evidence must be given, from which the 
 jury may presume that the time of the expiration of 
 the notice and of the year of the tenancy are the 
 same, or the plaintiff will be nonsuited. 
 
 If the tenant has been applied to by his landlord 
 respecting the time of the commencement of his te- 
 
 (a) Jory. Orchard, 2 B.& P. 41. (d) Roe d. Dean of Rochester . 
 (6) Ante, 126. Pearce, 2 Caropb. 96. 
 
 (c) Ante, 126. (note b.) 
 
 &
 
 314 OP THE EVEDENCE 
 
 nancy, and has informed him that it began on a cer- 
 tain 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 commencement : nor 
 is it material whether the information be the result of 
 design or ignorance, as the landlord is in both in- 
 stances equally led into an error, (a) When also the 
 tenant at the time of the service of the notice assents 
 to the terms of it, he will be precluded from showing 
 that it expires 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 cir- 
 cumstances were not sufficient to prevent him from 
 showing the time when the tenancy actually com- 
 menced. (6) 
 
 When a notice to quit upon any particular day, is 
 served upon the tenant personally, if he read its con- 
 tents, or they be explained to him, without any ob- 
 jection being made on his part, as to the time of the 
 expiration of the notice, it will be primd facie evi- 
 dence of a holding from the day mentioned in the 
 notice, (c) In like manner,, a receipt for a year's 
 rent up to a particular day, is primd facie evidence 
 
 (a) Doe d. Eyre v. Lambley, 2 (c) Thomas d. Jones u. Thomas, 
 
 Esp. 635. 2 Campb. 647. Doe d. Clarges v. 
 
 (6) Oakapple d. Green v. Copous, Foster, 13 East. 405. Doe d. Lei- 
 
 4 T. R. 361. cester v. Biggs, 2 Taunt 109.
 
 BY LANDLORDS. 315 
 
 of a holding from that day. (a) But if the notice be 
 not delivered personally, or be not read over or ex- 
 plained to the party, no such presumption will arise, 
 although a contrary doctrine was formerly main- 
 tained, (b) When also the notice is to quit generally 
 at the expiration of the current year of the tenancy, 
 &c. (c) no presumption can arise, as to the time ot 
 the commencement of the tenancy, from a personal 
 delivery to the tenant. But where a general notice 
 was delivered on the 22d of March, to quit at the 
 expiration of the current year, &c. and on the 16th of 
 January following, a declaration in ejectment was de- 
 livered to the tenant, laying the demise on the 1st of 
 November, and the tenant on the receipt of this de- 
 claration made no objection 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 
 Ellenborough, 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 land- 
 lord. (W) And in a case where the notice was de- 
 livered on Sept. 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 country where 
 
 (a) Doed. Castleton v. Samuel, 2 Campb. 387. 
 
 5 Esp. 174. (c) Ante, 142. 
 
 (6) Doe d. Puddtcombe v. Harris, (d) Doe d. Baker v. Wombwell> 
 
 1 T. R. 161. Doe d Ash v. Calvert, 2 Campb. 559.
 
 316 OP THE EVIDENCE 
 
 the demised lands lay, to let the same from Lady-day 
 to Lady- day, and that the defendant's rent was due 
 at Michaelmas and Lady-day respectively., and di- 
 rected the jury to presume, that this tenancy, like 
 other tenancies in that part of the country, was a te- 
 nancy from Lady-day to Lady-day, (a) 
 
 When the ejectment is 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, (b) and that the rent has been de- 
 manded with all the formalities mentioned in a pre- 
 ceding chapter, (c) If the case falls within the pro- 
 visions of the statute 4 Geo. II. c. 28, instead of 
 proving a demand of rent, he must show that six 
 months rent is in arrear, and that there is not a suf- 
 ficient distress upon the premises, (d) 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 the party who was about to make the 
 distress, omitted to enter a cottage upon the premises, 
 the Court considered the search insufficient, (e) But 
 if the lessor show that he was prevented by the de- 
 fendant from entering on the premises, proof that 
 there was no sufficient distress will be dispensed 
 with. (/) 
 
 (a) Doe d. Milnes v. Lamb, Not- (d) Ante, 162. 
 
 tingham Summer Assizes, 1817. (e) Doe d. Powell v. King, For- 
 
 MS. rest. 19. 
 
 (6) Roe d. West v. Davis, 7 East. (/) Doec?. Chippendale v. Dyson, 
 
 363. 1 M. & M. 77. 
 
 (c) Ante, 160.
 
 BY LANDLORDS. 317 
 
 The search must, of course, be made after the 
 time when the rent became due, and also after the 
 expiration of the time when it was payable to save the 
 forfeiture ; () but it is not necessary for the plaintiff 
 to prove that there was no sufficient distress upon the 
 premises, throughout the whole period of time during 
 which the rent has been in arrear. If he proves that 
 on any one day, from the time when the rent became 
 due, to the day of the demise in the declaration, there 
 was no sufficient distress, it will entitle him to a ver- 
 dict. And even if he proves an insufficient distress, 
 on some day after the day of the demise ; as, for ex- 
 ample, on some day in May, (the demise being laid 
 on May 2,) it will be sufficient primd facie evidence 
 to call upon the defendant to show, that there was 
 a sufficient distress upon the premises within the terms 
 of the proviso. (#) 
 
 It is not necessary that the amount of rent proved to 
 be due, should correspond with the amount stated in 
 the particulars of breaches delivered by the plaintiff.(c) 
 
 When the ejectment is for the breach of any other 
 covenant, the lessor must show the covenant broken, 
 by the same evidence as in an action of covenant ; 
 and 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. 
 
 (a) Ante, 161. (c Tenny d. Gibbs v. Moody, 3 
 
 (b) Doe d. Smalt v. Fuchau, 15 Bing. 3. 
 East. 286.
 
 318 OF THE EVIDENCE 
 
 In an ejectment on a proviso for re-entry, for breach 
 of covenant not to assign or let the premises, it was 
 ruled by Lord Alvanley, C. J., that if a person was 
 found in possession acting and appearing as tenant, 
 it was sufficient primd facie evidence of an under- 
 letting to call upon the defendant (the lessee) to show 
 in what character such person was upon the pre- 
 mises ; and that the declarations of such person were 
 admissible in evidence against the lessee, (a) But in 
 a subsequent case, upon similar evidence of posses- 
 sion, (accompanied, indeed, by a declaration of the 
 party that he had taken the premises from a third per- 
 son, but which does not seem to form the ground of 
 the decision) Lord Ellenborough, C. J., directed a 
 nonsuit; observing, that upon such evidence, non 
 constat, that the party was not a tortious intruder, 
 that it was incumbent on the lessor to prove that the 
 lessee had either assigned m let, and that the evi- 
 dence produced would not be sufficient, even if the 
 lessee had covenanted not to part with the posses- 
 sion. () 
 
 If the claimant is the assignee of the reversion, 
 after proving the forfeiture, evidence must be given 
 that he was entitled to the reversion at the time the 
 forfeiture was committed, (<?) 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 has continued for a considerable time, (d) 
 
 (a) Doe d. Hindley v. Rickarby, (c) Ante, 72. 
 5 Esp. 4. (d) Earl d. Goodwin v. Baxter, 
 
 (6) Doe v. Payne, 1 Star. 86. Blk. 1228.
 
 BY THE DEFENDANT. 319 
 
 Lastly ; Of the evidence on the part of the de- 
 fendant. 
 
 The principle that a claimant in ejectment must 
 recover on the strength of his own title, is now so 
 clearly established 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 in- 
 stance, make out a clear and substantial possessory 
 title to the premises in question ; and the defendant's 
 evidence is altogether confined to falsifying his ad- 
 versary's proofs, or rebutting the presumptions which 
 may arise out of them. He needs not show that he 
 has himself any claim whatever to the premises, nor 
 even give evidence of a title in a third person ; it is 
 sufficient if he make it appear to the jury, that a legal 
 and possessory title does not subsist in the plaintiff's 
 lessor. Thus, when the lessor claims as heir, he may 
 show a devise by the ancestor to a stranger ; that by 
 a particular custom another, and not the claimant, is 
 the heir ; that the claimant is a bastard ; or any other 
 circumstances which will invalidate his title. In like 
 manner when the lessor claims as devisee, the de- 
 fendant may show, that the will was obtained by 
 fraud ; that it was not duly executed ; that the testa- 
 tor was a lunatic ; and so forth. And as the same 
 principle holds, whatever be the title of the claimant, 
 any particular directions respecting the defendant's 
 proofs are altogether unnecessary. It is sufficient to 
 observe generally, that the defendant's evidence en- 
 tirely depends on the nature of the proofs advanced 
 by the plaintiff's lessor, and need in no case to be 
 extended beyond the rebuttal of them.
 
 320 
 
 CHAPTER XL 
 
 Of the Trial and subsequent Proceedings. 
 
 THE claims of the several parties being prepared 
 for the decision of a jury, by means of the fictions, 
 conditions and proofs, described in the preceding 
 chapters, the trial with its incidents, and the subse- 
 quent proceedings, will now occupy our attention. 
 
 The death of the lessor of the plaintiff, although 
 he be only tenant for life, will not abate the action, 
 nor can it be pleaded puis darrien continuance ; be- 
 cause the right is supposed to be in his lessee, (the 
 plaintiff,) who may proceed for the damages occa- 
 sioned by the supposed ouster, although he cannot 
 obtain possession of the land ; (a) but a trial of this 
 nature is unknown in practice, for the damages in 
 ejectment are only nominal, and if the plaintiff be 
 nonsuited from the refusal of the defendant to appear 
 at the trial, the executor of the lessor will not be en- 
 titled to his costs, for the consent rule is merely per- 
 sonal, (b) 
 
 (a) Thrustout d. Turner t>. Grey, (6) Thrustout u.Bedwell, 2 Wils.7. 
 Stran. 1056.
 
 OP THE TRIAL. 321 
 
 If the defendant refuses at the trial to appear, and 
 confess lease, entry, and ouster, the plaintiff must be 
 nonsuited, unless the action be at the suit of a land- 
 lord against his tenant, in which case it is optional 
 with the lessor of the plaintiff to be nonsuited, or 
 proceed with the trial. If he adopt the latter course, 
 he must produce the consent rule and undertaking 
 of the defendant (which by stat. 1 Geo. IV. c. 87. s. 
 2, is made evidence of lease, entry, and ouster,) and 
 prove that the tenant, or his attorney, has been 
 served with due notice of trial ; and he will then be 
 enabled, after proof of his right to the demised pre- 
 mises, to go into evidence, and recover the amount of 
 the mesne profits, accruing from the day of the deter- 
 mination of the tenant's interest, to the time of the 
 verdict, or to some preceding day, to be specially 
 mentioned therein. 
 
 The landlord has also, by the same statute, a like 
 privilege with regard to the recovery of the mesne 
 profits, in case of the appearance of the tenant at the 
 trial; but the statute does not extend to cases in which 
 the relation of landlord and tenant does not exist. 
 
 By the stat.l Wm. IV. c. 87. s. 38, the presid- 
 ing judge is authorized in all cases of trials of eject- 
 ments, when the verdict shall pass for the plaintiff, 
 or he shall be nonsuited for want of the defendant's 
 appearance to confess lease, entry, and ouster, to cer- 
 tify on the back of the record that a writ of posses- 
 sion ought to issue immediately, and such writ shall 
 thereupon issue, (a) 
 
 (a) Appendix, No. 37.
 
 322 OF THE TRIAL. 
 
 The judge is also authorized when the rule re- 
 quired by stat. 1 Geo. IV. c. 87. s. 1, has been en- 
 tered into by the defendant, (a) to stay the execution 
 of the judgment, absolutely, until the fifth day of the 
 ensuing term, if he shall think the finding of the jury 
 was contrary to evidence, or that the damages were 
 excessive ; and is compelled so to stay the execu- 
 tion, upon the requisition of the defendant, upon his 
 undertaking to find, and within four days from the 
 trial actually finding security, by the recognizance of 
 himself and two sufficient sureties in such reasonable 
 sum as the judge shall direct, not to commit any 
 waste or wilful damage, or sell, or carry off any 
 standing crops, hay, straw, or manure, from the pre- 
 mises, from the day of the verdict until the day of 
 execution. (6) 
 
 When the plaintiff' is nonsuited, from the defend- 
 ant's refusal to appear and confess, the cause of the 
 nonsuit should be specially indorsed upon the postea, 
 in order to entitle the plaintiff to have his costs taxed 
 and allowed, upon the consent rule ; (c) and also to 
 enable him (in case the judge should refuse under 
 stat. 1 Wm. IV. c. 70. s. 38,) to have judgment en- 
 tered against the casual ejector. (cT) 
 
 With respect to the time of entering this judgment, 
 a considerable difference prevails between the practice 
 of the Court of King's Bench, and of the Common 
 Pleas : the judgment being signed, and the execution 
 
 () Ante, 246. (d) Turner v. Barnaby, Salk. 259. 
 
 (b) 1 Geo. IV. c. 87. s. 3. Appen. No. 83. 
 
 (c) Ante, 232.
 
 OP THE TRIAL. 3^3 
 
 taken out, in the latter Court, immediately after the 
 entering of the nonsuit, and, in the former, not until 
 the day in bank when the posted should be returned ; (a) 
 and it is to be regretted that two of the superior courts 
 should differ on a point so essential to the regular 
 administration of justice. 
 
 If there be several defendants, and some of them 
 refuse to appear and confess, it is the practice to pro- 
 ceed against those who do appear, and enter a verdict 
 for those who do not, indorsing upon the posted, that 
 such verdict is entered for them, because they do not 
 appear and confess ; and the plaintiff's lessor will then 
 be entitled to his costs against such defendants, and 
 to judgment against the casual ejector for the lauds 
 in their possession. (6) 
 
 If there be any material variance between the issue 
 and the record, it seems that the defendant should 
 nevertheless appear at the trial, and afterwards move 
 the Court to set aside the verdict for the variance ; (c) 
 because if he do not appear, he is out of court, and 
 cannot afterwards properly move to set aside the non- 
 suit; yet, upon a motion of this nature, the Court 
 did, in one case, grant the rule upon payment of 
 
 (a)Doed.Palmerstont?.Copeland, as to all , because all the defend- 
 
 et Throgmorton d. Fairfax . Bent- ants not admitting the demise, he 
 
 ley, f <!T. R. 779. Doe d. Daviesv. could not maintain his declaration. 
 
 Roe, 1 B. & C.118. The present practice was adopted 
 
 (*) Claxmore v. Searle, Lord in the reign of William III. (Ilad- 
 
 Raym. 729. B. N. P. 98. Formerly, dock's case, 1 Vent. 355.) lagg v. 
 
 if some of the defendants did not Roberts, 2 Vent. 195. 
 
 appear, the plaintiff was nonsuited (r) Ante, 273.
 
 324 OP THE TRIAL AT BAR. 
 
 costs, (a) and in another case stayed the proceed- 
 ings. () 
 
 In a case where the demise was laid on a day not 
 come at the time of the trial, the defendant was not- 
 withstanding obliged to confess, as the plaintiff would 
 otherwise have been nonsuited, and have been en- 
 titled to judgment against the casual ejector, (c) 
 
 If the property litigated be of great value, and 
 difficulties 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, (d) or the probability of 
 a protracted trial, will not be sufficient to induce the 
 Court to grant the application ; difficulty must con- 
 cur ; and therefore the motion must be supported by 
 an affidavit, stating " the value per annum of the 
 estate ; that many witnesses are to be produced on 
 each side ; that the title of the lessor of the plaintiff 
 will depend, as the case may be, on an intricate course 
 of descent, or the legal operation of deeds ; that va- 
 rious points of law, and other questions, will neces- 
 sarily 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." 
 
 It has been said, that the rule is not to allow a trial 
 
 (a) Jones d. Thomas v. Hengest, Small d. Baker v. Cole, Burr. 1159. 
 
 Barn. 175. (rf) Lord Sandwich's case, Salk. 
 
 (6) Law v. Wallis, 1 Barnard, 156. 648. 
 (f) Anon. Ld. Rayin. 798; et
 
 OP THE TRIAL AT BAR. 3:25 
 
 at bar in ejectment, unless the value of the lands be 
 a hundred pounds per annum,] (a) 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. (6) And, 
 in a late 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, (c) 
 
 In other actions, a rule for a trial at bar is never 
 granted before issue joined ; but as the issue in eject- 
 ment 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, (d) 
 
 As the granting of a trial at bar is a favour con- 
 ferred upon the applicant, the Courts exercise the 
 power of annexing equitable conditions to their grant. 
 Thus where, on an application made by the defend- 
 ant for a trial at bar, it appeared, on showing cause 
 against the rule, that the lessor of the plaintiff was un- 
 able 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 ap- 
 plication, but said, that as it was a favour asked by 
 the defendant, they would lay him under terras, that 
 
 (a) Goodright v. Wood, 1 Barnard, Goodrightv. Wood, 1 Barnard, 141, 
 
 141. (c) Tidd, 768. 
 
 (6) Rex v. Burgesses of Caer- (d) Roe d. Cholmondley v. Doe, 
 
 marthen, Say 79. 2 Lil. P. R. 740. Barn. 455.
 
 326 OF THE NEW TRIAL. 
 
 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 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, (a) 
 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, (b) 
 
 After verdict the successful party is of course enti- 
 tled to the judgment of the Court; and, unless when 
 the statutes 1 Geo. IV. c. 87, and 1 Wm. IV. c. 70, pro- 
 vide otherwise, the same time is allowed to the other 
 party to move for a new trial, or an arrest of judg- 
 ment, in ejectment, as in other actions. 
 
 The Courts will seldom grant a new trial in eject- 
 ment, when the verdict is given for the defendant, be- 
 cause all parties remaining in the situation they were, 
 previously to the commencement of the action, the 
 claimant may bring a second ejectment without sub- 
 jecting himself to additional difficulties ; but this prin- 
 ciple does not apply when the verdict is given against 
 the defendant. The possession is then changed. 
 The defendant in the first ejectment becomes the 
 
 (a) Holmes d. Brown v. Brown, (6) Lord Coningsby's case, Stran. 
 Doug. 437. 548>
 
 OP THE JUDGMENT. 327 
 
 plaintiffs lessor in the second, and is 'obliged to give 
 evidence of his own title, instead of merely rebutting 
 the claim set up by his opponent ; and as this is a 
 point of material consequence to him, "the Courts (to 
 use Lord Mansfield's words) rather lean to new trials 
 on behalf of defendants in the case of ejectments, 
 especially on the footing of surprise." (a) 
 
 OF THE JUDGMENT. 
 
 By the judgment in ejectment, the plaintiffs lessor 
 obtains possession of the lands recovered by the ver- 
 dict, but does not acquire any title thereto, except 
 such as he previously had. If, therefore, he has a 
 freehold interest in them, he is in as a freeholder ; if 
 he has a chattel interest, he is in as a termor ; and if 
 he has 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 : (6) the verdict in 
 the ejectment being no evidence in a subsequent ac- 
 tion, even between the same parties, (c) Since, then, 
 the claimant has a mere possession given to him 
 by the judgment, it may be asked how he can become 
 seized according to his title if he have more than a 
 chattel interest in the land. This is effected by ano- 
 ther 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 possession is once 
 
 (a) Clymer 17. Littler, 1 Blk. 345. Burr. 60. 90. 114. 
 
 348. (c) Clerke r. Uowell, 1 Mod. 10. 
 
 (b) Taylor d. Atkins v. Horde,
 
 328 OF THE JUDGMENT. 
 
 given by the sheriff, the possession and title are said 
 to unite, and the plaintiff's lessor holds the lands ac- 
 cording 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 variance between the verdict and 
 judgment, occasioned by the misprision, or default, of 
 the clerk in entering the judgment, is not fatal, but 
 may be amended by the Court, even after a writ of 
 error brought, (a) 
 
 The Courts, indeed, after judgment, make every 
 possible intendment in favour of the claimant ; and if 
 the title declared on can by any means be supposed 
 to exist, consistently with the judgment, such judg- 
 ment will be supported. Thus, where two demises 
 were laid, by different lessors, of the same premises 
 for the same term, both as to commencement and du- 
 ration, and the judgment was that the plaintiff reco- 
 ver 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 judgment, and that it did not appear which of 
 the lessors' rights was established ; the Court affirmed 
 the judgment; because, after a verdict, a bare possi- 
 bility 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. (&) In like manner 
 
 (a) Mason v. Fox, Cro. Jac. 631. (6) Morres v. Barry, Stran. 
 Appendix, No. 34. 1180. Ante, 20.9.
 
 OP THE JUDGMENT. 329 
 
 where the declaration contained two distinct demises, 
 by two different lessors, of two distinct undivided 
 thirds, and judgment was given that the plaintiff " do 
 recover 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 eject- 
 ment respected only one undivided third, the judg- 
 ment 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, (a) Upon 
 the same principle, when in an ejectment on two 
 several demises of two separate parcels of lands, the 
 judgment was entered, that the plaintiff do recover his 
 term, and an objection was taken, that it should have 
 said, that the plaintiff do recover his terms, the Court 
 said they would extend the word term to his term in 
 A., and his term in B., and affirmed the judgment. (6) 
 And where the ejectment was upon two demises, by 
 different lessors, and the second demise was " of the 
 aforesaid premises," and judgment was entered for 
 the plaintiff as to the first demise, and the defendant 
 as to the other ; and it was objected, that from not 
 stating the second demise to be of u other premises? 
 the judgments were contradictory to each other, in- 
 asmuch as the defendant was put without day, as to 
 the same premises for which the plaintiff recovered, 
 the Court affirmed the judgment, and construed the 
 aforesaid premises which the second lessor demised 
 to mean the term in the premises, (c) So also, where 
 the plaintiff in ejectment declared upon two demises 
 
 (a) Rowe d. Boyce v. Power, 2 (fc) Worrall v. Bent, Stran. 835. 
 N. R. 1. 35. (c) Fisher v. Hughes, Stran. 908
 
 330 OF THE JUDGMENT. 
 
 of several lands, by several parties,, but laid only one 
 habendum, namely habendum tenementa prcedicta, so 
 demised by the aforesaid several parties, for seven 
 years, and it was assigned for error, that the declara- 
 tion was ill for want of another habendum ; for that 
 the verdict was general, and it was uncertain to which 
 demise the single habendum related, the Court held 
 that reddendo singula singulis, it was well enough, (a) 
 Where also the declaration was for lands, and com- 
 mon of pasture generally, without stating the common 
 to be appendant, or appurtenant, it was intended after 
 verdict, on a writ of error, to be such common as 
 ejectment could be maintained for. (b) And where the 
 ejectment was for one messuage, or tenement, and 
 four acres of land to the same belonging, the words 
 " to the same belonging" were held to be void ; for 
 land cannot properly belong to a house, and then it 
 is a declaration of a messuage or tenement, and four 
 acres of land, which though it be void for the tene- 
 ment, is good for the land ; for which the plaintiff, 
 upon releasing the damages, had judgment, (c) 
 
 Upon a similar principle, where the plaintiff, in the 
 
 (a) Sleabourne v. Bengo, 1 Ld. house and ten acres of meadow, be 
 
 Raym. 561. Moore v. Fursden, 2 the same more or less," and had a 
 
 Vent. 2 14. S. C. Carth. 224. S. C. verdict, the judgment was arrested ; 
 
 Comb. 190. because the declaration was so un- 
 
 (6) Newman v. Holdmyfast, certain and repugnant, that even 
 
 Stran. 54. Ante, 19. the verdict could not help it, the 
 
 (c) Wood v. Payne, Cro. Eliz. land mentioned in the declaration 
 186. In an old case, where the being so different from that men- 
 plaintiff declared on a lease of a tioned in the pernomen. (Anon 
 house, ten acres of land, twenty Yelv. 166.) But quaere if such a 
 acres of meadow, and twenty acres verdict would not now be good for 
 of pasture, by the name of " a the ten acres ?
 
 OF THE JUDGMENT. 331 
 
 first year of the reign of Geo. III. declared upon a 
 demise of the thirty -third year of that reign, the 
 Court held that it was well enough after verdict, be- 
 cause it was only a title defectively set out, and there 
 could be no doubt but that a proper title was proved 
 at the trial. (a) 
 
 If the plaintiff obtain a verdict for the whole pre- 
 mises demanded, the entry of the judgment is, that 
 the plaintiff recover his term against the defendant of 
 and in the premises aforesaid, or that he recover pos- 
 session of the term aforesaid. And this form is also 
 used, where a moiety, or other part, of the whole 
 premises is recovered; as, for example, when the 
 plaintiff declares for forty acres in A., and recovers 
 only twenty ; and it is at the lessor's peril, that he 
 take out execution for no more than he has proved 
 title to. (b) But where the verdict is for some parcels 
 and not for all, or part of all, as where the plaintiff 
 declares for lands in A., and lands in JB., and the de- 
 fendant is found guilty in A. only, the judgment (c) 
 is, that the plaintiff recover his term in A.; and as to 
 the other part, whereof the jury acquitted the de- 
 fendant, that the plaintiff be in mercy, and that the 
 defendant go thereof without day. (d) 
 
 If the defendant be acquitted of part, and judg- 
 
 (o) Small d. Baker v. Cole, Burr. W. & M. c. 12, used to run quod 
 
 1159. defendens capiatur ; but, since that 
 
 (6) Doe d. Draper's Company v. statute, such entry is no longer ne- 
 
 Wilson, 2 Star. 477. cessary. (Linsey v. Clerk, Carth. 
 
 (c) As an ejectment is an action 390. S. C. 5 Mod. 285. 
 
 of trespass vi et armis, the judg- (d) Judgment Book, 7'J, 73. 
 ment before the statute of 5 and 6
 
 332 OF THE JUDGMENT. 
 
 ment be entered, quod defendens sit quietus quoad 
 that part whereof he is acquitted, this is error ; for 
 the judgment in this action 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, (a) 
 
 If a sole defendant die after the commencement of 
 the assizes and before verdict, or after verdict and 
 before judgment, it will not abate the suit; nor can 
 his death be alleged for error, provided the judg- 
 ment be entered within two terms after the ver- 
 dict, (b) 
 
 When there are several defendants, and one of 
 them dies at any time before judgment, the lessor 
 may proceed against the survivors, upon suggesting 
 the death (c) of such defendant 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; nor need 
 the judgment say, quod queer ens nil capiat per breve 
 against the dead defendant, (d) 
 
 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 ; (d) although where in such 
 case the venire was awarded against all, upon suggest- 
 
 (a) Taylor v. Wilbore, Cro. Eliz. (c) 8 and 9 Will. III. c. 11. s. 7. 
 768. (d) Far v. Denn, Burr. 362. 
 
 (b) 17 Car. IT. c. 8.
 
 OF THE JUDGMENT. 333 
 
 ing the death of the one upon the roll after the verdict, 
 the plaintiff had judgment for the whole against the 
 others, (a) But if the lessor proceed to trial, and ob- 
 tain judgment against all the defendants, without such 
 suggestion, it is error, because there can be no ver- 
 dict, or judgment, against a person not in being, (b) 
 
 The entry of the judgment, notwithstanding the 
 death of one of several defendants, ought to be gene- 
 ral, that the plaintiff recover his term in the premises 
 against the survivors ; (c) 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, be- 
 cause they are in the nature of distinct defendants, 
 and consequently, as to that part which was defended 
 by the person deceased, there is no person in Court 
 against whom judgment can be given, or execution 
 taken out. (5) 
 
 If an ejectment be brought against baron and feme, 
 
 (a) Gree v. Rolle, Ld Raym. 716. (c) Far v. Derm, 1 Burr. 362. 
 
 (b) Gilb. Eject. 98.
 
 334 OF THE COSTS. 
 
 and the plaintiff have a verdict against both, but, 
 before judgment, the husband dies, the plaintiff, on 
 suggesting his death, may have judgment against the 
 wife ; because (having been found guilty of the tres- 
 pass) she must have obtained the unlawful possession 
 jointly with her husband, or have had the whole pos- 
 session in her own right; and in either case, the 
 possession is wholly in her on the death of her 
 husband. (a) 
 
 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 inesne profits, in which, at the discre- 
 tion of the jury, they are recoverable 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 topay the m ; (b) 
 but no writ ofjierifacias, or capias ad satisfaciendum, 
 will in this case lie, because the judgment in the eject- 
 ment is against the casual ejector, (c) 
 
 When there are several defendants, some of whom 
 appear at the trial and confess, but others do not 
 
 (a) Rigley v. Lee, Cro. Jac. 356. 259. 
 
 Lee v. Rowkeley, 1 Roll. 14. (c) Goodright d. Rowell v. Vice, 
 
 (b) Turner v. Barnaby 1, Salk. Barn. 182.
 
 OF THE COSTS. 335 
 
 appear, aud a verdict is found against those who do 
 appear, each defendant 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 defendant 
 for the costs, he take out execution against another, 
 the Court will interfere to prevent it. But it seems 
 he cannot separate the costs, and tax part of them 
 against one defendant, and part against another, (a) 
 
 If the lessor of the plaintiff die after issue joined 
 and before trial, or even after trial and before taxation 
 of costs, the defendant cannot recover his costs 
 against the representative, the consent rule being, (as 
 already mentioned,) merely personal ; and it seems 
 immaterial, whether the defendant's claim arises from 
 a verdict in his favour, or from the plaintiff's being 
 nonsuited upon the merits, (b) or by reason of the 
 defendant's refusal to confess ; but where the plain- 
 tiff's lessor died after the trial, the defendant was com- 
 pelled by the Court to pay to his representative the 
 costs, which had been taxed by consent upon the 
 consent rule, (c) 
 
 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 of the plaintiff may have a capias ad satis- 
 
 (a) Thrustout d, Wilson v. Foot, 7. Doe d. Lintot t\ Ford, 2 Smith, 
 B. N. P. 335. S. C. Barn. 149. 407. 
 
 (6) Thrustout v. Bedwell, 2 Wils. (c) Goodright v.Holton,Barn, 1 19.
 
 336 OF THE COSTS. 
 
 faciendum, or a fieri facias, for the costs, and an 
 habere facias possessionem for the possession, sepa- 
 rately, or in one writ at his pleasure, (a) 
 
 When the judgment in ejectment is against a feme- 
 sole, who marries before execution, the plaintifPs 
 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. (6) 
 
 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 existence against the landlord, exe- 
 cution may be taken out thereon for the costs, (c) 
 
 It may be collected from the case of Gulliver v. 
 Drinkwater, (d) that, independently of these remedies, 
 the lessor may, in all cases, recover the amount of his 
 taxed costs (#) in an action for mesne profits ; but 
 that the Court will not interfere to assist him, if the 
 jury do not include such costs in their damages, when 
 the lessor might have proceeded for them in a differ- 
 ent manner. 
 
 When the proceedings are in the Court of King's 
 Bench, and a verdict is found for the defendant, or 
 the plaintiff is nonsuited for any other cause than 
 
 (a) Appendix, Nos. 36, 37, 38, (c) Appendix, No. 35. 
 
 30, 40. (d) 1 T. R. 261. 
 
 (/) Doe d. Taggart v. Butcher, 3 (e) Doe v. Davis, 1 Esp. 358. 
 M. & S. 557. Appendix, No. 42.
 
 OF THE COSTS. 
 
 337 
 
 the defendant's not confessing lease, &c. the 
 defendant must tax his costs on the posted, as 
 in other actions, and sue out a capias ad sa- 
 tisfaciendum, or fieri facias, for the same against 
 the plaintiff; and if, upon showing this writ 
 under seal to the lessor, serving him with a 
 copy of the consent rule, and demanding the costs, 
 the lessor do not pay them, the Court will, on an 
 affidavit of the facts, grant an attachment against 
 him. (a) 
 
 When the proceedings are in the Court of Common 
 Pleas, it is the practice in such case, for the pro- 
 thonotary to tax the costs upon the postea, and mark 
 them upon the consent rule. This rule is then shown 
 to the plaintiff's lessor, and at the same time the costs 
 are demanded of him by the defendant personally, 
 or by his attorney named in the rule ; and, upon 
 affidavit of such demand, and of the lessor's re~ 
 fusal to pay the costs, an attachment may be ob- 
 tained. (V) 
 
 When there are several defendants, and any 
 of them are acquitted by the verdict, they will, 
 by the provisions of statute 8 & 9 Wm. and 
 M. c. 11, be entitled to costs, unless the judge 
 
 (a) Tily v. Baily, M. 6. Geo. II. a hope that nothing so absurd as a 
 
 (fc) Imp. C. B. 5 Ed. 654. In a capias ad satisfaciendum against the 
 
 late case in the Common Pleas, nominal plaintiff, would ever again 
 
 in which the parties had pursued be heard of. Doe d. Prior u. Salter, 
 
 the practice of the Court of King's 3 Taunt. 485. 
 
 Bench, Mansfield, C. J. expressed
 
 338 OF THE COSTS. 
 
 shall certify in open court that there was a good cause 
 for making them defendants, (a) 
 
 When the lessor of the plaintiff is a peer, no at- 
 tachment will be granted against his person ; but the 
 Court will grant a rule to show cause, why an attach- 
 ment, as to his goods and chattels, should not be 
 issued, and, if necessary, will make that rule abso- 
 lute. (5) 
 
 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, (c] 
 
 Where the lessor of the plaintiff was an infant, and 
 his lessee was nonsuited, and 50/. costs were given 
 to the defendant, and the infant's father, who pro- 
 secuted the suit, 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 in- 
 fancy; 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 adjourned, (d) 
 
 If the lessor of the plaintiff abandon the action 
 
 () The provisions of this statute out good cause ! 
 seern scarcely applicable to the pre- (6) Thornby d. Hamilton v. Fleet- 
 sent mode of conducting eject- wood, Cas. Pr. C. P. 7. 
 ments, for how can it be said, that (c) Morgan u.Stapely, 1 Keb. 827. 
 he who was made a defendant at (d) Anon. 1 Freem. 373. 
 his own request, was made so with-
 
 OF THE EXECUTION. 339 
 
 after the appearance of the tenant, or landlord, and 
 refuse to join in the consent rule, he fs 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, (a) 
 
 If the lessor of the plaintiff sue informd pauperis, 
 he will be dispaupered in case of vexatious delay ; 
 but it does not seem, that the Court will also compel 
 him to pay the defendant's costs, (b) 
 
 When there are several defendants, the lessor of 
 the plaintiff has his election to pay costs to which de- 
 fendant he pleases, (c) 
 
 If the lessor proceeds under the stat. 1 Geo. IV. c. 
 87. s. 1 5 and is nonsuited on the merits, or has a ver- 
 dict pass against him, the defendant is entitled to 
 double costs. 
 
 OF THE EXECUTION. 
 
 When the lessor of the plaintiff prevails, he may 
 enter peaceably upon the premises recovered, without 
 any writ of execution, because the land recovered is 
 certain ; (d) but it is more prudent to sue out the re- 
 gular writ, as the assistance of the sheriff may be ne- 
 cessary to preserve the peace. 
 
 (a) Smith d. Ginger v. Barnardis- (c) Jordan v. Harper, Stran. 516. 
 ton, Blk. 904. (d) Taylor d. Atkins v. Horde, 
 
 (b) Doe d. Leppingwell v. Trus- Burr. 60. 88. Anon. 2 Sid. 155. 6. 
 sell, 6 East. 505. 
 
 z2
 
 340 OF THE EXECUTION. 
 
 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 give 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, (a) 
 
 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, if the 
 plaintiff be nonsuited at the trial, because of the re- 
 fusal of the defendant to appear and confess, the les- 
 sor cannot sue out a writ of possession, without first 
 moving the Court for leave to do so ; and the rule is, 
 in the first instance, only a rule to show cause. And 
 if he sue out a writ of possession without such mo- 
 tion, the execution will be set aside for irregularity. 
 But if the plaintiff obtains a verdict and judgment 
 against the landlord, he may take out execution on 
 the judgment against the casual ejector, notwithstand- 
 ing the terms of the consent rule, without any further 
 order of the Court, (b) 
 
 When the writ of possession issues upon a judge's 
 certificate, under the authority of stat. 1 Wm. IV. c. 
 70. s. 37, it must, instead of the usual recital of a re- 
 covery by judgment, recite as directed by the statute, 
 
 (a) Appendix, Nos. 36 to 40. B. & C. 897. 
 
 (b) Doe d. Lucy v. Bennett, 4.
 
 OF THE EXECUTION. 341 
 
 that the cause came on for trial at Nisi Prius, at 
 such a time and place, and before such a judge, 
 (naming time, place and judge) and that thereupon 
 the judge certified his opinion that a writ of pos- 
 session ought to issue immediately, (a) 
 
 If the lessor of the plaintiff be divested 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 writ of habere 
 facias possessionem, or set one aside, if issued. (6) 
 
 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 possession of his term, of and in the premises 
 recovered in the ejectment ;" but without any parti- 
 cular specification of the lands whereof he is to make 
 execution ; and as the description 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 summary manner, and compel him to make re- 
 stitution, (c) 
 
 (a) Appendix, No. 37. (c) Roe d. Saul v. Dawson, 3 
 
 (V) Doe d. Morgan v. Bluck, 3 Wils. 49. Doe d. Draper's Comp. 
 
 Campb. 417. v. Wilson, 2 Stark. 477. Ante, 23.
 
 342 OF TttE EXECUTION. 
 
 They will also, if circumstances require, interfere 
 before the execution of the writ, and restrain the 
 lessor from taking possession of more than he is en- 
 titled 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 argument 
 granted a rule to confine the execution to those lands 
 only, to which the lessor had a valid title, (a) 
 
 The sheriff it seems, previously to the execution of 
 the writ, may demand an indemnity from the plain- 
 tiff; (6) and when he has to deliver possession of any 
 particular number of acres, he must estimate them 
 according to the custom of the country in which the 
 lands are situated, (c) 
 
 The possession to be given by the sheriff, is a full 
 and actual possession, and he is armed with all power 
 necessary to this end. Thus, if the recovery be of 
 a house, and he be denied entrance, he may justify 
 breaking open the door, for the writ cannot otherwise 
 be executed, (d) 
 
 If the lessor recover several messuages in the pos- 
 session of different persons, the sheriff must go to 
 each of the several houses, and severally deliver pos- 
 
 (a) Doe d. Forster v. Wandlass, (6) Gilb. Eject. 110. 
 
 7 T. R. 118, in notis. Et vide (c) Roll. Ab. 886. H. 4. 
 
 Brooke d. Mence v. Baldwin, Barn. (rf) Semayne's case, 5 Co. 91, (6> 
 468.
 
 OP THE EXECUTION. 343 
 
 session 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 other, (a) But when the seve- 
 ral messuages are in the possession of one tenant only, 
 it is sufficient if he give possession of one messuage 
 in the name of all. (b) 
 
 When the recovery is of land, the same distinction 
 seems to prevail ; that is to say, if there be only one 
 tenant, a delivery of any part, in the name of the 
 whole, will be sufficient; 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, the Court will, on affidavit of the circumstances, 
 grant an attachment against the party, whether he be 
 the defendant, or a stranger : (c) and the writ is not 
 understood to be completely executed, until the sheriff' 
 and 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 pre- 
 mises, and gave peaceable possession to the plaintiff, 
 and that, immediately after he was gone, three men, 
 who were secretly lodged in the house, expelled the 
 
 (a) 1 Roll. Ab. 886. H. 2. (c) Kingsdaleu. Man, 6 Mod. 27. 
 
 (b) Floyd v. Bethill, 1 Roll. Rep. S. C. Salk. 321. 
 420.
 
 344 OF THE EXECUTION. 
 
 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 writ, (a) 
 
 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 de- 
 fendant, he shall have a new writ of possession, or an 
 attachment ; but that if he be ousted by a stranger, 
 he shall be driven to another ejectment; and the rea- 
 son assigned for this distinction is, that in the one 
 case the defendant shall never, by his own act, keep 
 the possession which the plaintiff has recovered from 
 him by due course of law, and in the other that, as 
 the title was never tried between the plaintiff and the 
 stranger, he may claim the land under a title para- 
 mount to that of the plaintiff, and therefore the re- 
 covery and execution in the former action, ought not 
 to hinder the stranger from keeping that possession, 
 to which he may have a right. It is also said, that 
 the 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 
 
 (a) Upton v. Wells, 1 Leon. 145.
 
 OF THE EXECUTION. 345 
 
 execution at his pleasure, until full execution be 
 obtained, (a) 
 
 All these cases, however, seem to be overruled by 
 a late 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 possessionem, on the 
 22d day of February, 1806, 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 vio- 
 lence all atteaipts to regain the possession. Upon 
 these grounds, a new writ of habere facias was 
 moved for, aad the case of Radcliff v. Tate, (b) was 
 cited : but " the Court denied the authority of that 
 case, and held that possession having been given un- 
 der 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 executed. 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 
 within twenty years next after the date of the judg- 
 ment ;" (c) and the rule was refused. 
 
 (a) Rex. v.Harris, Ld.Raym. 482. vies d. Povey v. Doe, Blk. 392. 
 
 Molineux v. Fulgam, Palm. 289. Anon. 2 Brown, 253. Kingsdale v. 
 
 Ratcliffu. Tate, 1 Keb. 776. Love- Mann, 6 Mod. 27. S. C. Salk. 321. 
 
 less v. RatclifF, 1 Keb. 785. Deve- Goodright v. Hart, Stran. 830. 
 
 reux v. Underbill, 2 Keb. 245. For- (6) 1 Keb. 779. 
 
 tune v. Johnson, Styl. 318. Pierson (c) Doe d. Pate v. Roe. 1 Taunt. 
 
 v. Tavenor, 1 Roll. Rep. 353. Da- 55.
 
 346 OF THE EXECUTION. 
 
 If the lessor neglect to sue out his writ of possession 
 for a year and a day after judgment, he must revive 
 the judgment by scire facias, as in other cases ; and 
 when the judgment is against the casual ejector, the 
 ter-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 ex- 
 ecution is of the land only, and jio new person is 
 charged ; (#) but the surer method 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 another 
 scire facias for the costs against the personal repre- 
 sentative, unless he be himself the ter-tenant. (c) 
 
 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, (c] 
 
 If the lessor of the plaintiff die after the teste of the 
 writ, but before it is actually sued out, it is not ne- 
 cessary to revive the judgment by scire facias ; and 
 as he is not a party on the record, it seems no scire 
 facias would be necessary, if he died before the teste 
 
 (a} Withers u. Harris, Lord Raym. Proctor v. Johnson, 2 Salk. 600. 
 
 806. Appendix, No. 42. S. C. Ld. Raym. 669. 
 
 (6) Per Holt, C. J. Withers v. (c) Doe d. Taggart v. Butcher, 
 
 Harris, Ld. Raym. 806. Sed vide 3 M. & S. 557.
 
 OF THE WRIT OF ERROR. 347 
 
 of the habere facias possessionem, although the case 
 of Doe d. Beyer v. Roe, (a) has certainly left this 
 point somewhat doubtful. 
 
 When the sheriff delivers possession of the land 
 under the writ of habere facias possessionem, he 
 thereby also delivers possession of the crops upon it ; 
 and such crops will pass to the lessor, although 
 severed at the time of the execution of the writ, 
 provided such severance has been made subse- 
 quently to the determination of the tenant's interest, 
 and of the day of the demise in the declaration. (6) 
 And the growing crops will also pass to the lessor by 
 the execution of the writ of possession, although pre- 
 viously seized under a fieri facias against the tenant, 
 if the day of the demise be prior to the issuing of 
 such fieri facias , inasmuch as they cannot be said to 
 belong to the tenant, who is a trespasser from that 
 day. (c) 
 
 OF THE WRIT OF ERROR. 
 
 A writ of error in ejectment cannot be brought in 
 the name of the casual ejector, (d) and consequently 
 it will not lie until after verdict ; for, before appear- 
 ance, the casual ejector is the only defendant in the 
 suit, and, after appearance, the new defendant is 
 bound by the terms of the consent rule to plead the 
 
 (a) Burr. 1970. (<f) Roe d. Humphreys v. Doe, 
 
 (6) Doe d. Upton v. Witherwick, Barn. 181. This principle is of 
 
 3 Bing.-ll. course limited to the modern prac- 
 
 (c) Hodgson v. Gascoigne, 5 B. tice. Ante, chap. VI. 
 
 & A. 88.
 
 348 OF THE WRIT OF ERROR. 
 
 general issue, (a) If also the defendant refuse at the 
 trial to confess, &c. he will be precluded from bring- 
 ing error, because the plaintiff will then be nonsuited 
 as to him, and the judgment will be entered against 
 the casual ejector, (a) 
 
 When indeed the landlord defends alone, and the 
 verdict is found against him, error may be brought, 
 notwithstanding that the judgment, upon which the 
 execution issues, is entered against the casual ejec- 
 tor: (a) for a judgment 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, it seems, obtain a rule to stay the plaintiff 
 from taking out execution against the casual ejec- 
 tor ; (6) 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, (c) 
 
 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 af- 
 firmed, or on a nonsuit, or discontinuance had ; and, 
 in case of affirmance, discontinuance, or nonsuit, the 
 
 (a) Ante, 263. ( c ) George d. Bradley v. Wisdom, 
 
 (6) Ante, 340. Burr. 756.
 
 OP THE WRIT OF ERROR. 349 
 
 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 re- 
 turn thereof to give judgment, and award execution 
 for the same, and also for costs of suit. 
 
 The words of this statute seem to render it neces- 
 sary for the plaintiff in error to be personally bound ; 
 but by a reasonable construction, it is held sufficient, 
 if he procure proper sureties to enter into the re- 
 cognizance of bail, for otherwise lessors residing in 
 distant counties would sustain great inconvenience, 
 and an infant lessor, or a lessor becoming a feme 
 covert after action brought, would be entirely ex- 
 cluded from the benefit of the act. () 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 defendant's re- 
 cognizance was sufficient to entitle him to his writ of 
 error. 
 
 The plaintiff in error is not bound to give the 
 defendant in error notice of his entering into the 
 recognizance pursuant to stat. 16 and 17 Car. II. c. 
 8. s. 3 ; (b) and the reasonable sum in which the 
 recognizance is taken under this statute, is generally 
 
 (a) Barnes v. Bulmer, Carth. 121. Ueardon, 8 East. 298. 
 Lushington d. Godfrey v. Dose, 7 (6) Doe d. Webb . Goundry, 7 
 Mod. 304. Keene d. Lord Byron v. Taunt. 427.
 
 350 OF THE WRIT OF ERROR. 
 
 double the improved rent of the premises in dispute, 
 and the single costs of the ejectment, (a) 
 
 The writ of error does not operate as a stay of 
 execution until bail is put in, which cannot be done 
 until the plaintiff's lessor has taxed his costs, for 
 until costs are taxed, the amount of the penalty of 
 the recognizance of the bail in error cannot be fixed ; 
 and if the lessor choose to waive his taxation of costs, 
 and proceed for his possession only, the Court will 
 not interfere to prevent him, notwithstanding the 
 allowance of the writ of error, (b) 
 
 Where the tenants in possession, having under- 
 taken to appear on the usual terms, and also to take 
 short notice of trial, made no defence at the trial, 
 but sued out a writ of error, when the judgment was 
 signed ; the Court, on motion, allowed the lessor to 
 take his judgment and execution against the casual 
 ejector, notwithstanding the pendency of the writ of 
 error, (c) 
 
 In the case of Wharod v. Smart, (d) the defendant 
 brought a writ of error in parliament, and the Court 
 compelled him 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 recognizances, they are not 
 
 (a) Thomas v. Goodtitle, Burr. Taunt. 289. 
 
 2501. Kecne d. Lord Byron v. (c) Doe d. Morgan v. Roe, 3 Bing. 
 Deardon, 8 East. 298. 1C9. 
 
 (b) Doe d. Messiter v. Dinely, 4 (d) Burr. 1823.
 
 OP BRINGING A SECOND EJECTMENT. 351 
 
 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, (a). 
 
 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. (6) 
 
 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 
 ejectment 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, (c) 
 From these circumstances it is manifest, that the judg- 
 ment can never be final ; and that it is always in the 
 power of the party failing, whether claimant, or de- 
 fendant, to bring a new action. The structure of the 
 record also renders it impossible to plead a former re- 
 covery in bar of a second ejectment : for the plaintiff 
 in the suit is only a fictitious person, and as the de- 
 mise, 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. 
 
 (a) Doe v. Reynolds, 1 M. & S. 398. Recog. in Withers v. Harris, 
 247. Ld. Raym. 806. 8. 
 
 (1) Badger v. Floyd, 12 Mod. (c) Ante, 215.
 
 35*2 OF BRINGING A SECOND EJECTMENT. 
 
 It is said by Mr. Serjeant Sellon, in his Practice of 
 the Courts, (a) (C 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 reconr 
 pence for the trouble and expense to which the pos- 
 sessor 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 
 defendant 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 attached in that Court, and never 
 began at law ; and such precedent incumbrances ap- 
 pearing to be fraudulent, and inequitable against the 
 possession, it is within the compass of the Court to 
 relieve against it." It should seem however from the 
 cases of Barefoot v. Fry, (#) and Leighton v. Leigh- 
 ton, (c) that courts of equity will sometimes interfere, 
 and grant perpetual injunctions, when the ejectments 
 have been commenced in the usual way at the com- 
 mon law. (cT) 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, (e) 
 
 () 2 Sell. Prac. 144. Price, 417. 
 
 (6) Bumb. 158. ( e ) Earl of Bath v. Sherwin, Bro. 
 
 (c) 1 P. Wins. 671. Cas. Parl. 270. 
 
 (d) Deardon v. Lord Byron, 8
 
 353 
 
 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 applications from the defendant, to stay the 
 proceedings in the action ; and a separate consider- 
 ation of the cases in which these applications have 
 been granted, seems preferable 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 stayed upon the ap- 
 plication of the tenant, until the lessor of the plaintiff 
 has delivered particulars of the breaches of covenant, 
 on which he intends to rely ; and a summons for this 
 purpose will be granted before the tenant has ap- 
 peared to the action, or entered into the consent 
 rule, (a) 
 
 When the lessor of the plaintiff is an infant, the 
 Court will stay the proceedings until security be 
 
 (a) Doe d. Birch v. Phillips, 6 T. R. 597. 
 
 A A
 
 354 OF STAYING PROCEEDINGS. 
 
 given for the costs, unless a responsible person has 
 been made the plaintiff in the suit, or the father, or 
 guardian undertake to pay them ; but an inquiry as 
 to these facts should be made previously to the appli- 
 cation, (a) The proceedings will also be stayed until 
 security be given for the costs, when the lessor re- 
 sides abroad ; (b) and, in a case where an ejectment 
 was brought upon the demise of a person resident in 
 Ireland, the Court of King's Bench stayed the proceed- 
 ings until security should be given for the costs, 
 although it was an ejectment brought under the di- 
 rection of the Court of Chancery, where the bill was 
 retained until after the trial of the ejectment, and 
 security had already been given there to the amount 
 of ^40. (c) In like manner, if the plaintiffs lessor 
 should die pending the action, it seems that the Court, 
 although they cannot stay the proceedings in toto, will 
 not suffer the suit to proceed, unless security be given 
 for the costs, (d) And when the lessor is unknown to 
 the defendant, the latter may demand an account of 
 his residence, or place of abode, from the lessor's 
 attorney, and if he refuse to give it, or give a ficti- 
 tious account of a person who cannot be found, pro- 
 ceedings will be stayed until security for the costs be 
 given, (e) But these are the utmost limits to which 
 the Courts will go in granting rules of this nature ; 
 and an application has been refused, founded on the 
 
 (a) Noke v. Windham, Stran. (c) Denn d. Lucas v. Fulford, 
 
 694. Throgmorton d. Miller v. Burr. 1177. 
 
 Smith, Stran. 932. Anon. 1 Wils. (d) Thrustout d. Turner v. Grey, 
 
 130. Anon. 1 Cowp. 128. Appen- Stran. 1056. 
 
 dix, No. 43. ( e ) Tidd's Prac. 476, 7. 
 
 (6)B.N.P.lll.Appendix ; No.44.
 
 OF STAYING PROCEEDINGS. 355 
 
 poverty of the lessor, (a) and also one in which 
 it appeared, that an ejectment had previously been 
 brought in another court and abandoned, and that 
 the lessor had been obliged to give security in the 
 first ejectment, because his residence was then un- 
 known, (b) The practice of granting these rules 
 originated in the Court of King's Bench, and were 
 indeed at first entirely confined to cases of infant 
 
 lessors, (c) 
 
 
 
 The proper time to take out a summons, or move 
 the Court for this rule, is after plea pleaded, (d) 
 
 The next case, in which the Courts interfere to 
 stay the proceedings, is when the costs of a prior 
 ejectment upon the same title, or between the same 
 parties, are left unpaid, (e) 
 
 For some time after the introduction of this prac- 
 tice, the Court would not interfere unless the two 
 ejectments were brought in the same court; (f) but 
 this limitation no longer prevails, and it is now imma- 
 terial in what court the first ejectment is brought, (g) 
 Formerly also there was a diversity of opinion, whether 
 the proceedings could be stayed, where the two eject- 
 ments were brought (without fraud, or collusion) upon 
 
 (a) Goodrightd. Jones v. Thrust- (/) Austine v. Hood. 1 Sid. 279. 
 
 out,Cas.Pr. C. P. 15. Tredway v. Harbert, Comb. 106. 
 
 (ft) Doe d. Selby v. Alston, 1 T. R. (g) Doe d. Hamilton v. Atherly, 
 
 491. 7 Mod. 420. Anon. 1 Salk. 255. 
 
 (c) Thrustout d. Dunham v. Per- Holdfast d. Hattersley v. Jackson, 
 cival, Barn. 183. Barn. 133. Doed. Chadwick v. Law, 
 
 (d) 2 Sell. Prac. 139. Blk. 1158. Doe d. Walker v. Ste- 
 
 (e) Append. No. 45. phenson, 3 B. & P. 22. 
 
 AA2
 
 356 OF STAYING PROCEEDINGS. 
 
 different demises although upon the same title ; (a) 
 but it is now of no consequence whether the two 
 ejectments are brought upon the demise of the same 
 or different persons, against all or some of the same 
 parties, or for the same or different premises, pro- 
 vided they are brought upon the same title, and for 
 the recovery of part of the same estate. Thus, pro- 
 ceedings have been stayed where one of the lessors of 
 the plaintiff in the first action died before the com- 
 mencement of the second ; where in the second eject- 
 ment two trustees were added to the lessors ; where 
 part of the lands were occupied by new tenants ; 
 where the second action was between the heir of the 
 plaintiff's lessor, and the heir of the defendant in the 
 first action. (&) And in a case, where the second 
 ejectment was brought by the lessee of an insolvent 
 debtor, who had been the lessor of the plaintiff in the 
 first action, and it appeared that the assignment was 
 fraudulent to evade the payment of the costs, the 
 Court, (without entering into the point, whether, in a 
 fair case, the assignee of an insolvent debtor shall be 
 called upon for former costs, before he be suffered to 
 bring a new ejectment on the title of his principal) 
 made the rule absolute to stay the proceedings until 
 the costs of the first action were paid, (c) 
 
 A distinction was also formerly taken as to the 
 situation of the parties in the different actions, and 
 it was holden, that if the defendant in the second 
 
 (a) Short v. King, Stran. 681. Angel v. Angel, 6 T. R. 740. Doe 
 
 Tredway v. Harbert, Comb. 106. d. Feldon v. Roe, 8 T. R. 645. 
 
 (6) Doed. Hamilton v. Hatherly, (c) Doe d. Chadwickv. Law, Blk. 
 
 Stran. 1152. Thrustout d. Williams 1180. 
 v. Holdfast, 6 T. R, 223. Keene d.
 
 OF STAYING PROCEEDINGS. 357 
 
 ejectment had been the claimant in the first, the 
 proceedings should not be stayed : (a) but this doc- 
 trine is now also exploded, and the change of situa- 
 tion in the parties is immaterial, (b) 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, (c) 
 
 The Courts will likewise stay the proceedings in a 
 second ejectment until the costs of a former one be 
 paid, if the conduct of the party, against whom the 
 application is made, has been vexatious or oppressive, 
 although he is not liable to the costs of the first 
 action. Thus, where the lessor of the plaintiff in 
 the second action was also the lessor in the first, and 
 had refused, after the appearance of the defendant in 
 such first action, to enter into the consent rule, 
 whereby, although nonsuited for want of a replica- 
 tion, he was exempted from the costs of the defend- 
 ant's appearance, the Court would not let him proceed 
 iu the second ejectment until he had satisfied the 
 defendant for the expenses of such first appearance, (d] 
 And, upon the same principle, where the first eject- 
 ment was on the demise of the husband and wife, 
 but the husband alone entered into the consent rule, 
 
 (a) Roberts v. Cook, 4 Mod. 379. Keene d. Angel v. Angel, 6 T. R. 
 
 (6) Thrustoutd. Williams o.Hold- 740. Anon. Salk. 255. 
 
 fast, 6 T. R. 223. (d) Smith d. Ginger v. Barnar- 
 
 (c) Dencev. Doble, Comb. 110. diston, Blk. 904. Ante, 273.
 
 358 OF STAYING PROCEEDINGS. 
 
 and judgment was given therein in the Common Pleas 
 for the defendant, (which judgment was afterwards 
 affirmed in the King's Bench and the House of Lords,) 
 and after the death of the husband, the wife brought 
 a second 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 lessor to pay the costs, but only 
 to prevent her being vexatious." (a) 
 
 In a recent case, in which claimants under very 
 peculiar circumstances had brought three actions, in 
 three different terms, in the Court of King's Bench, 
 for the same property, and all three were pending 
 together, and the parties had not proceeded to trial 
 in either, but several orders had been made in the 
 first cause, and the defendants had obtained a rule 
 calling upon the plaintiff to show cause why they 
 should not elect to proceed in one action only, and in 
 case they should elect to proceed in either of the two 
 last actions, why the first action should not be discon- 
 tinued, and the costs paid by the claimants; and there- 
 upon an improvident rule was agreed to, by which 
 the proceedings in the two last actions were stayed, 
 and the claimants were to proceed to trial in the first 
 action under great disadvantages as to costs, and 
 instead of proceeding with that action, they brought a 
 new ejectment in the Court of Common Pleas, that 
 Court upon motion stayed the proceedings therein, (b) 
 
 It was once holden, that the proceedings in a 
 
 (a) Doe d. Hamilton v. Hatherly, (6) Doe d. Carihevv v. Brenton, 
 Stran. 1152. 6 Bing. 469.
 
 OP STAYING PROCEEDINGS. 359 
 
 second ejectment ought not in amj case to be stayed 
 for non-payment of the costs in the first action, if 
 costs were not of right payable to the party apply- 
 ing ; (a) and that it was in all cases necessary to 
 show, that the party against whom the application 
 was made, had acted vexatiously, or oppressively, 
 before the rule could be obtained. But these maxims 
 have long given place to more just and equitable prin- 
 ciples, (b) 
 
 The Court has also ordered the proceedings in 
 a second ejectment to be stayed until the costs of an 
 action for mesne profits (upon which the lessor in the 
 second ejectment, who had been the defendant in the 
 first, had brought a writ of error) as well as the costs 
 of the first ejectment, were paid, (c) But the Court 
 will not extend the rule to include the damages re- 
 covered in such action for the mesne profits, however 
 vexatious the proceedings of the party may have 
 been, (d) 
 
 The Courts will not stay the proceedings in the 
 second action, where the party, against whom the 
 application is made, is already in custody under an 
 attachment for non-payment of the costs of the first 
 action, (d) nor will they include the taxed costs of a 
 suit in equity, brought by the same party for the same 
 property, as well as the costs of a prior ejectment, in 
 
 (a) Thrustout d. Parke v. Trou- (c) Doe d. Pinckard v. Roe, 4 
 
 blesome, Stran. 1099. S. C. And. East. 585. 
 
 297; (d) Doe d. Church v. Barclay, 15 
 
 (6) Short v. King, Stran. 681. East. 833.
 
 360 OF STAYING PROCEEDINGS. 
 
 the rule : (a) nor will they stay the proceedings, if it 
 clearly appear that the verdict in the first action was 
 obtained by fraud and perjury : (A) nor will they in 
 any case in which they stay the proceedings further 
 interfere, so as to compel the claimant to pay the costs 
 by a particular day, or permit the defendant to non- 
 pros the action, (c) 
 
 There is no particular stage of the proceedings in 
 which it is necessary to move the Court, or take out 
 a summons for this rule. It will be granted even 
 before the defendant has appeared : and it always 
 should be moved for as early in the action as it con- 
 veniently can be. Where, however, satisfactory rea- 
 sons were given to the Court, why the application 
 was not made at an earlier stage of the suit, the Court 
 ordered the proceedings to he stayed until the costs 
 of a former ejectment were paid, after a notice of 
 trial had been given, and the lessor of the plaintiff 
 had been at the expense of bringing his witnesses to 
 the place of trial, (d) The reasons assigned to the 
 Court were, that the cause was so clear at the last 
 trial, and the parties had delayed so long commencing 
 their second action (four years,) that the defendants 
 did not think them in earnest until notice of trial was 
 given, and that the defendant then proceeded to tax 
 his costs, in order to ground the application, which 
 otherwise he would not have done, the lessor of the 
 plaintiff being insolvent. 
 
 (a) Doe d. Williams v. Winch. 3 (c) Doe d. Sutton v. Ridgway, 5 
 B. & A. 602. B. & A. 523. 
 
 (b) Doe d. Rees c . Thomas, 2 B. (d) Doe v. Law, Blk. 1158. 
 &C. 622.
 
 OP STAYING PROCEEDINGS. 361 
 
 The Courts will also stay proceedings when the 
 lessor of the plaintiff has two actions depending, at 
 the same time, for the same premises, in the same 
 or different courts ; and the proceedings in the one 
 action will then be stayed, until the other action is 
 determined, (a) And in a case where the claimant 
 brought thirty-seven separate ejectments for thirty- 
 seven different houses, all of which depended on the 
 same title, the Court said it was a scandalous pro- 
 ceeding, stayed the proceedings in thirty-six of them, 
 and made a rule that they should abide the event 
 of the thirty-seventh, (b) 
 
 When the party, against whom a verdict in eject- 
 ment has been obtained, brings a writ of error, and 
 pending that writ commences a second ejectment, the 
 Court will order the proceedings in the second action 
 to be stayed until the writ of error is determined ; and 
 it seems also, that if it do not appear to the Court, that 
 the writ of error was brought with some other view 
 than to keep off the payment of costs, proceedings 
 will be stayed until the costs of the first action are paid, 
 notwithstanding such costs are suspended by the writ 
 of error, (c) 
 
 By the statute 7 Geo. II. c. 20. s. 1, it is enacted, 
 " that when an ejectment is brought by a mortgagee, 
 his heirs, &cc. for the recovery of the possession of the 
 
 (a) Thrustout d. Park v. Trouble- (V) 2 Sell. Prac. 144. Ante, 264. 
 
 some, And. 297. S. C. Stran. 1099. (c) Fenwick v, Grosvenor,! Salk. 
 
 Doe d. Carthew w. Brenton, 6 Ding. 258. Grumble v. Bodily, Stran. 554. 
 469.
 
 362 OP STAYING PROCEEDINGS. 
 
 mortgaged premises, and no suit is depending in any 
 court of equity, for the foreclosing or redeeming of 
 such mortgaged premises, if the person having a right 
 to redeem, having been made the defendant in the 
 action, shall at any time, pending the suit, pay to the 
 mortgagee, or in case of his refusal, bring into court, 
 all the principal monies, and interest due on the 
 mortgage, and also costs to be computed by the Court, 
 or proper officer appointed for that purpose; the 
 same shall be deemed and taken to be a full satisfac- 
 tion and discharge of the mortgage, and the Court 
 shall discharge the mortgagor of and from the same 
 accordingly." By the third section, the act is not to 
 extend to any case where the person, against whom 
 the redemption is prayed, shall insist either that the 
 party praying a redemption has not a right to redeem, 
 or that the premises are chargeable with other sums 
 than what appear on the face of the mortgage, or are 
 admitted by the other side, nor to any case where the 
 right of redemption in any cause, or suit, shall be 
 controverted or questioned, by or between different 
 defendants in the same cause or suit. 
 
 An application for a rule to stay proceedings under 
 this statute, (a) must of course be made before execution 
 executed, and must be accompanied by an affidavit 
 that no suit in equity is depending. The party 
 should also appear to the action before the application 
 is made, for the Courts have no power to interfere 
 under the statute until after appearance. But where 
 
 () Append. No. 46.
 
 OF STAYING PROCEEDINGS. 363 
 
 the premises were in possession of a tenant of the 
 mortgagor, who neglected to appear to the action, in 
 consequence of which the mortgagee recovered pos- 
 session of the premises under a judgment by default 
 against the casual ejector, the Court of Common Pleas 
 (if the other party had not consented to take what 
 was due upon the mortgage, and restore the posses- 
 sion) would have set the judgment and execution 
 aside, in order to let the mortgagor in as defendant, 
 and place him in a condition to apply to the Court to 
 stay the proceedings on the terms of the statute, (a) 
 
 In a case in the Court of King's Bench where a 
 mortgagee made a will, leaving all his property to 
 executors upon certain trusts, and died, and his will 
 was disputed by his heir in the Prerogative Court, but 
 by the sentence of that Court established, and letters 
 testamentary in consequence granted to the executors ; 
 after which grant the heir appealed to the Court of 
 Delegates against the sentence of the Prerogative 
 Court, pending which appeal the executors assigned 
 the mortgage to the lessor of the plaintiff, who also 
 pending the appeal, brought an ejectment against 
 the mortgagor for the recovery of the mortgaged 
 premises, to which ejectment the mortgagor did not 
 appear, but suffered judgment to go by default against 
 the casual ejector. Upon an application on the part 
 of the mortgagor (accompanied by an affidavit of the 
 facts) to stay the execution until the determination of 
 the appeal, upon the ground, that the title of the 
 lessor would be invalidated, provided the appeal were 
 given in favour of the heir, and that the defendant 
 
 (a) Doe d. Tubb i>. Roe, 4 Taunt. 887.
 
 364 OF STAYING PROCEEDINGS. 
 
 might then perhaps be compelled to pay the mortgage- 
 money twice, the Court made the following order : 
 u That the execution obtained by the lessor of the 
 plaintiff in this action of ejectment, be stayed until such 
 time as the appeal, now pending before the Court of 
 Delegates, be determined, upon the defendant vesting 
 the mortgage -money, interest, and costs to be taxed 
 by the Master, in Exchequer bills, and depositing 
 such Exchequer bills in the hands of the signer of 
 the writs in this Court." (a) 
 
 A rule upon this statute has been granted after an 
 agreement, on the part of the mortgagor, to convey 
 the equity of redemption to the mortgagee, where no 
 tender of a deed of conveyance for execution had 
 been made to the defendant, or bill in equity filed j (b) 
 but where it appeared that, subsequently to the de- 
 fendant's agreement, several applications had been 
 made to him, but without effect, to complete the pur- 
 chase, the Court refused to stay the proceedings, (c) 
 
 In a case where, upon an application by the 
 mortgagor to stay proceedings under this statute, it 
 appeared that he had also ^taken up money from the 
 mortgagee upon his bond, the Court granted the rule 
 upon the payment of the mortgage and interest only, 
 the bond debt not being a lien upon the lands ; but it 
 seems that when in such case the heir is bound by the 
 
 (a) Doe d. May hew v. Erlam, appeared to the action. 
 
 MS. M.T. 1811. The Court did (6) Skinner v. Stacey, 1 Wils. 80. 
 
 not in this case advert to the cir- (c) Goodtitle d. Taysum v. Pope, 
 
 cumstance that the mortgagor, 7 T. R. 185. 
 who made the application, had not
 
 OP STAYING PROCEEDINGS. 365 
 
 bond, and the mortgagor dies, the heir must discharge 
 the bond debt, as well as the mortgage, (a) Where, 
 however, the bond was a lien on the estate, and the 
 mortgagee had given notice to the mortgagor, that he 
 should insist upon payment of the money due upon it, 
 the Court refused to stay the proceedings, upon pay- 
 ment of the mortgage-money only, (b] Where also 
 other mortgages, although upon different premises, 
 existed between the defendant and the claimant, the 
 Court would not stay proceedings under this statute, 
 upon the payment of the sum due upon one of the 
 mortgages only, (c) 
 
 If upon a motion of this nature, any doubt exist as 
 to the amount of what is due between the parties, the 
 Court of King's Bench will refer the case to the mas- 
 ter, and the Court of the Common Pleas to the pro- 
 thonotary, whose respective duty it is to tax the costs ; 
 and in a case where an affidavit was made, that the 
 mortgagee had been at great expense in necessary re- 
 pairs of part of the premises in his possession (the 
 ejectment being brought for the residue,) and it was 
 prayed, that the prothonotary might be directed to 
 make allowance for such repairs ; the Court said, that 
 the rule must follow the words of the statute, and that 
 the prothonotary would make just allowances and de- 
 
 fa) Bingham d. Lane v. Gregg, of this case, that the other mort- 
 Barn. 182. Archer d. Hankey v. gaged premises were included in 
 Snapp,And. 341. S.C.Stran. 1107, the ejectment; but it is difficult to 
 and the cases there cited. reconcile the decision either to the 
 (6) Felton v. Ash, Barn. 177. letter or spirit of the statute, unless 
 (c) Roe d. Kaye v. Soley, Blk. 726. they were also contained in the de- 
 It does not appear from the report claration.
 
 366 OP STAYING PROCEEDINGS. 
 
 d actions, (a) If, however, after taxation, the debt 
 and costs are not paid, the lessor must proceed in the 
 suit, and cannot have an attachment, (b) 
 
 The cases in which the Courts have stayed the pro- 
 ceedings under stat. 4 Geo. II. c. 28, have already 
 been considered, (c) 
 
 The Court would not stay proceedings in an action 
 brought by the provisional assignee of the Insolvent 
 Debtor's Court, on an objection that it was not 
 proved at the trial of the cause that the assignee had, 
 pursuant to stat. 1 Geo. IV. c. 119. s. 11, the 
 authority of the Insolvent Debtor's Court to pro- 
 ceed, (d) 
 
 (a) Goodright v. Moore, Barn. (c) Ante, 169, &c. Append. No. 47. 
 176. (d) Doe d. Spencer v. Clarke, 3 
 
 (6) Hand v. Dinely, Stran. 1220. Bing. 370.
 
 367 
 
 CHAPTER XIII. 
 
 Of the Statutes 1 Geo. IV. c. 87, and 1 Wm. IV. 
 
 c. 70. 
 
 THE protracted period during which, dishonest or in- 
 solvent tenants are enabled, by the ordinary course of 
 law, to retain possession of their farms after the de- 
 termination of their interest, has long been productive 
 of serious evils to landowners. Unless a tenancy ex- 
 pires at Christmas, upwards of six months will always, 
 and eight or nine months will frequently, elapse, be- 
 fore final judgment and execution can be obtained; and 
 during the whole of that period the tenant has the un- 
 controlled power of suffering the land to remain uncul- 
 tivated, or of committing wilful destruction, as his tem- 
 per or immediate interests may prompt. The legis- 
 lative provisions of the stat. 4 Geo. II. c. 28, enacting 
 that tenants holding over shall pay double the yearly 
 value of the land, affords no efficient relief in cases 
 of this description. These frauds are not committed 
 by respectable or responsible tenants ; and when the 
 tenant is insolvent or dishonest, the judgment of the 
 Insolvent Debtor's Court gives but an unsubstantial re- 
 medy for the injury which the landlord has sustained.
 
 368 OF THE STATUTE 
 
 To lessen, and in a great degree remedy, these 
 evils, the beneficial statutes now under consideration 
 have been passed, and the general effect of them is 
 as follows. They enable the landlord, when the 
 tenant holds under an agreement in writing, to com- 
 pel him before he is admitted to defend, to give secu- 
 rity for the damages and costs of the action, and that 
 he will relinquish possession within four days after 
 the trial, unless he shall, within that time, give further 
 security that he will not commit waste, or otherwise 
 injure the land, before the ordinary time of obtaining 
 judgment or execution. And they also enable the 
 landlord in all cases, whether the holding has been in 
 writing or by parol, to bring his cause to trial at the 
 assizes next following the expiration of the tenancy, 
 unfettered by the machinery of terms and returns ; 
 as likewise to recover the mesne profits as well as 
 the land itself in the ejectment, and to obtain posses- 
 sion immediately after the trial, if the judge shall cer- 
 tify his opinion on the record that he ought to do 
 so. 
 
 By stat. 4 Geo. I. c. 87, after reciting the losses to 
 which landlords were exposed by the law as it then stood, 
 it was enacted, " That where the term or interest of 
 " any tenant, holding under a lease or agreement in 
 " writing any lands, &c. for any term or number of 
 " years certain, (a) or from year to year, shall have ex- 
 " pired or been determined either by the landlord or 
 " tenant by regular notice to quit, (a) and such tenant, 
 
 or any one holding or claiming by or under him, shall 
 
 (a) Post. 374. 
 
 (C
 
 1 GEO. iv. c. 87. 369 
 
 (e refuse to deliver up possession accordingly, after 
 " lawful demand in writing made and signed by the 
 " landlord or his agent, and served personally upon, 
 ' e or left at the dwelling-house or usual place of abode 
 " of such tenant or person, and the landlord shall 
 " thereupon proceed by action of ejectment for the 
 t( recovery of possession, it shall be lawful for him, at 
 " the foot of the declaration, to address a notice to 
 " such tenant or person, requiring him to appear in 
 " the court in which the action shall have been com- 
 " menced, on the first day of term then next folio w- 
 " ing, (a) or if the action shall be brought in Wales, or 
 " in the counties Palatine of Chester, Lancaster, or 
 " Durham respectively, then on the first day of the 
 se next session or assize, or at the court day, or other 
 " usual period for appearance to process then next 
 " following, (as the case may be,) there to be made 
 " defendant, and to find such bail, if ordered by the 
 (t Court, and for such purposes, as are hereinafter 
 ee next specified ; and upon the appearance of the 
 " party at the day prescribed, or in case of non- 
 " appearance on making the usual affidavit of ser- 
 f< vice of the declaration and notice, it shall be lawful 
 " for the landlord, producing the lease or agreement, 
 " or some counterpart or duplicate thereof, and prov- 
 " ing the execution of the same by affidavit, and upon 
 " affidavit (6) that the premises have been actually en- 
 " joyed under such lease or agreement, and that the 
 " interest of the tenant has expired, or been deter- 
 " mined by regular notice to quit, as the case may 
 " be, and that possession has been lawfully demanded 
 
 (o) Post. 375. .(*) Ante, 246. 
 
 B B
 
 370 OF THE STATUTE 
 
 ee in manner aforesaid, to move the Court for a rule 
 " for such tenant or person to show cause, within a 
 " time to be fixed by the Court on a consideration 
 " of the situation of the premises, why such tenant 
 " or person, upon being admitted defendant, besides 
 " entering into the common rule, and giving the com- 
 " mon undertaking, should not undertake, in case a 
 " verdict shall pass for the plaintiff, to give the plain- 
 " tiff a judgment, to be entered up against the real 
 " defendant, of the term next preceding the time of 
 " trial, or if the action shall be brought in Wales, or 
 " in the counties Palatine respectively, then of the 
 " session, assize, or court day, (as the case may be) 
 " at which the trial shall be had, and also why he 
 (e should not enter into a recognizance, by himself 
 " and two sufficient sureties, in a reasonable sum, 
 " conditioned to pay the costs and damages which 
 e ' shall be recovered by the plaintiff in the action ; 
 " and it shall be lawful for the Court, upon cause 
 " shown, or upon affidavit of the service of the rule 
 " in case no cause shall be shown, to make the same 
 " absolute in the whole, or in part, and to order such 
 " tenant or person, within a time to be fixed, upon 
 ' ' a consideration of all the circumstances, to give 
 " such undertaking, and find such bail, with such 
 " conditions and in such manner as shall be specified 
 (< in the said rule, or such part of the same so made 
 " absolute ; and in case the party shall neglect or 
 " refuse so to do, and shall lay no ground to induce 
 " the Court to enlarge the time for obeying the same, 
 te then upon affidavit of the service of such order an 
 " absolute rule shall be made for entering up judg- 
 " ment for the plaintiff."
 
 1 OEO. iv. c. 87. 371 
 
 By section 2, it is further enacted, " That wher- 
 " ever it shall appear on the trial of any ejectment, at 
 " the suit of a landlord against a tenant, that such 
 " tenant, or his attorney, hath been served with due 
 " notice of trial, the plaintiff shall not be nonsuited 
 " for default of the defendant's appearance, or of 
 c ' confession of lease, entry, and ouster, but the pro- 
 ' ' duction of the consent rule and undertaking of the 
 " defendant shall, in all such cases, be sufficient evi- 
 " dence of lease, entry, and ouster ; and the Judge 
 " before whom such cause shall come on to be tried 
 " shall, whether the defendant shall appear upon 
 " such trial or not, permit the plaintiff on the trial, 
 " after proof of his right to recover possession of the 
 " whole, or of any part of the premises mentioned in 
 " the declaration, to go into evidence of the mesne pro- 
 4f fits thereof, (a) which shall, or might have accrued 
 " from the day of the expiration or determination 
 " of the tenant's interest in the same, down to the 
 " time of the verdict given in the cause, or to some 
 " preceding day to be specially mentioned therein ; 
 " and the jury on the trial, finding for the plaintiff, 
 " shall, in such case, give their verdict upon the 
 " whole matter, both as to the recovery of the whole 
 " or any part of the premises, and also as to the 
 " amount of the damages to be paid for such mesne 
 te profits : provided always, that nothing herein- 
 " before contained shall be construed to bar any 
 " such landlord from bringing an action of trespass 
 " for the mesne profits which shall accrue from the ver- 
 " diet, or the day so specified therein, down to the 
 
 (a) Post 380 
 
 B B 2
 
 372 OF THE STATUTE 
 
 " day of the delivery of possession of the premises 
 " recovered in the ejectment." (a) 
 
 By section 3, it is further enacted, " That in all 
 (( cases in which such undertaking shall have been 
 " given, and security found as aforesaid, if upon the 
 " trial a verdict shall pass for the plaintiff, but it 
 " shall appear to the Judge, before whom the same 
 " shall have been had, that the finding of the jury 
 " was contrary to the evidence, or that the damages 
 ft given were excessive, it shall be lawful for the 
 " Judge to order the execution of the judgment to be 
 " stayed absolutely till the fifth day of the term then 
 " next following, or till the next session, assize or 
 ee court day, (as the case may be ;) which order the 
 " Judge shall in all other cases make upon the requi- 
 " sition of the defendant, in case he shall forthwith 
 {( undertake to find, and on condition that, within 
 " four days from the day of the trial, he shall actually 
 " find security by the recognizance of himself and 
 " two sufficient sureties, in such reasonable sum as 
 " the Judge shall direct, conditioned not to commit 
 " any waste, or act in the nature of waste, or other 
 " wilful damage, and not to sell or carry off any 
 " standing crops, hay, straw, or manure produced or 
 te made (if any) upon the premises, and which may 
 " happen to be thereupon, from the day upon which 
 " the verdict shall have been given, to the day on 
 " which execution shall finally be made upon the 
 " judgment, or the same be set aside; as the case may 
 " be : Provided always, that the recognizance last 
 
 (a) Post. 380.
 
 1 GEO. iv. c. 87. 373 
 
 " above mentioned shall immediately stand discharged 
 " and be of no effect, in case a writ of error shall be 
 <( brought upon such judgment, and the plaintiff in 
 " such writ shall become bound with two sufficient 
 " sureties unto the defendant in the same, in such 
 (( sum and with such conditions as may be conform- 
 " able to the provisions respectively made for staying 
 " execution on bringing writs of error upon judg- 
 " ments in actions of ejectment, by an Act passed in 
 " England in the sixteenth and seventeenth years of 
 " the reign of King Charles the Second, and by an 
 " Act passed in Ireland in the seventeenth and 
 " eighteenth years of the reign of the same king, 
 " which Acts are respectively intitled, An Act to 
 " prevent arrests of judgment, and superseding 
 (t executions." 
 
 Section 4 enacts, ' ' That all recognizances and se- 
 " curities entered into pursuant to the provisions of 
 " this Act, may and shall be taken respectively in 
 " such manner, and by and before such persons as 
 " are provided and authorised in respect of recog- 
 " nizances of bail, upon actions and suits depending 
 " in the court in which any such action of ejectment 
 " shall have been commenced: and that the officer 
 " of the same court, with whom recognizances of bail 
 " are filed, shall file such recognizances and secu- 
 " rities, for which respectively the sum of two shil- 
 " lings and six-pence, and no more, shall be paid, 
 " but no action, or other proceeding, shall be coni- 
 " menced upon any such recognizance or security, 
 " after the expiration of six months from the time 
 " when possession of the premises, or any part
 
 374 OF THE STATUTE 
 
 " thereof, shall actually have been delivered to the 
 " landlord." 
 
 The 6th section relates only to the Welsh juris- 
 diction now abolished ; (a) and by the 7th, 8th, and 
 9th sections, Scotland is exempted from the opera- 
 tion of the act, all other remedies of landlords are 
 retained, and double costs are given to the defendant 
 if he obtain a verdict, or the plaintiff be nonsuited 
 on the merits. 
 
 A tenancy by virtue of an agreement in writing, 
 for three months certain, is a tenancy within the 
 meaning of this statute, because it is a tenancy " for a 
 term certain;" (b) but a tenancy for years determinable 
 on lives is not, because it is not a holding for "a 
 number of years certain." (c] So likewise a holding 
 by parol from year to year is not within the statute, 
 the words in writing extending to the whole sentence, 
 and not being confined to holdings for a term, or 
 number of years certain, (d) The statute also only 
 applies to cases, where the lease or term has expired 
 by the mere efflux of time, and not to a tenancy 
 determined by a notice to quit, either from or to the 
 landlord, where there is a subsisting lease for a term 
 of years, determinable at the end of a certain num- 
 ber of them, and so determined by a notice under the 
 lease, (e) 
 
 (a) Stat. 1 W. IV. c. 70. (rf) Doe d. Earl t of Bradford v. 
 
 (6) Doe d. Phillips v. Roe, 5 B. Roe, 5 B.& A.7TO. 
 
 & A. 766. (e) Doe d. Lord Cardigan v. Roe, 
 
 (c) Doe d. Pemberton v. Roe, 7 K. B. T. T. 3 Geo. IV. MS. S. C. 
 
 B.&C. 2. 1D.&R. 540.
 
 1 GEO. iv. c. 87. 375 
 
 The Court will only direct recognizances to be 
 entered into under this statute, on the appearance of 
 the defendant, for the costs of the action, and not for 
 the mesne profits, (a) 
 
 The notice at the foot of the declaration required 
 by this statute, should be signed by the landlord or 
 his attorney, and should be in addition to, and not 
 form part of, the ordinary notice signed by the casual 
 ejector. (&) 
 
 
 
 Where upon showing cause against a rule obtained 
 under this statute, upon an affidavit stating a tenancy 
 from year to year, under a written agreement, and 
 that the tenant's interest had been duly determined by 
 a notice to quit, and that there had been a written 
 demand of possession, and that the tenant had 
 been served with the declaration on April 24, 1830, 
 it was sworn by the defendant, that long after 
 the service of the notice to quit, which expired on 
 March 25, 1829, he saw the steward of his landlord, 
 and retook the premises by parol, and that he had 
 rented and held them under such parol agreement, 
 from the said 29th of March to that time, and that he 
 was advised there was a valid tenancy then existing, 
 and that he had a good defence to the action, the 
 Court of Common Pleas made the rule absolute, 
 because the affidavit only deposed that he retook the 
 premises, without stating for what period, or on what 
 terms; and therefore, -that in the absence of satis- 
 
 (a) Doe d. Sampson v. Roe, 6 B. (b) Anon. 1 D. & R. 435. Doe d. 
 Moore, 54. Sampson v. Roe, (5 B. Moore, 54.
 
 376 OF THE STATUTE 
 
 factory evidence of a new taking, the case was within 
 the act. (a) 
 
 By stat. 1 Wra. IV. c. 70. s. 36, after reciting the 
 delays suffered by landlords in recovering possession 
 of their lands, it is enacted, " that in all actions of 
 " ejectment to be brought in any of his Majesty's 
 " Courts at Westminster by any landlord against his 
 " tenant, or against any person claiming through or 
 " under such tenant, for the recovery of any lands or 
 " hereditaments where the tenancy shall expire, or 
 ee the right of entry into or upon such lands or here- 
 " ditaments shall accrue to such landlord, in or after 
 " Hilary or Trinity Terras respectively, it shall be 
 " lawful for the lessor of the plaintiff in any such 
 " action, at any time within ten days after such 
 " tenancy shall expire, or right of entry accrue as 
 " aforesaid, (6) to serve a declaration in ejectment, en- 
 " titled of the day next after the day of the demise in 
 " such declaration, whether the same shall be in term 
 (< or in vacation, (c) with a notice thereunto subscribed, 
 " requiring the tenants in possession to appear and 
 " plead thereto, within ten days in the Court, in which 
 tf such action may be brought; (d) and proceedings 
 " shall be had on such declaration, and rules to plead 
 " entered and given, in such and the same manner, 
 " as nearly as may be, as if such declaration had 
 " been duly served before the preceding term : Pro- 
 " vided always, that no judgment shall be signed 
 " against the casual ejector until default of appear- 
 
 (a) Roe d, Durant v. Doe, 6 (c) Ante, 207, 208. 
 Bing. 574. (rf)Ante, 230. 249. 
 
 (t) Ante, 247.
 
 1 WM. iv. c. 70. 377 
 
 " ance and plea within such ten days, and that at 
 " least six clear days' notice of trial shall be given 
 " to the defendant before the commission day of 
 " the assizes at which such ejectment is intended to 
 1 ' be tried ; provided also, that any defendant in 
 " such action may, at any time before the trial 
 " thereof, apply to a judge of either of his Majesty's 
 " superior Courts at Westminster, by summons in 
 <c the usual manner, for time to plead, or for staying 
 " or setting aside the proceedings, or for postponing 
 " the trial until the next assizes; and that it shall be 
 " lawful for the Judge in his discretion to make such 
 " order in the said cause as to him shall seem 
 " expedient." 
 
 By section 37, it is enacted, "that in making up 
 " the record of the proceedings on any such de- 
 " claration in ejectment, it shall be lawful to entitle 
 " such declaration specially of the day next after the 
 ff day of the demise therein, whether such day shall 
 (( be in term or in vacation, and no judgment there- 
 " upon shall be avoided or reversed by reason only 
 " of such special title." (a) 
 
 And by section 38, it is enacted, " that in all 
 " cases of trials of ejectments at Nisi Prius, when a 
 " verdict shall be given for the plaintiff, or the 
 " plaintiff shall be nonsuited for want of the defend- 
 " ant's appearance to confess lease, entry, or ouster, 
 f< it shall be lawful for the Judge, before whom the 
 " cause shall be tried, to certify his opinion on the 
 
 () Ante, 207.
 
 378 OP THE STATUTE 1 WM. IV. C. 70. 
 
 " back of the record, that a writ of possession ought 
 " to issue immediately, and upon such certificate a 
 " writ of possession may be issued forthwith ; (a) and 
 " the costs may be taxed, and judgment signed and 
 " executed afterwards at the usual time, as if no 
 tf such writ had issued : Provided always, that such 
 <e writ, instead of reciting a recovery by judgment 
 " in the form now in use, shall recite shortly that 
 " the cause came on for trial at Nisi Prius at 
 " such a time and place and before such a Judge, 
 " (naming the time, place, and judge,) and that 
 " thereupon the said Judge certified his opinion 
 " that a writ of possession ought to issue imme- 
 (( diately." 
 
 (d) Appendix, No. 37.
 
 379 
 
 CHAPTER XIV. 
 
 Of the Action for Mesne Profits. 
 
 WHILST the action of ejectment remained in its 
 original state, and the ancient practice prevailed, the 
 measure of the damages given by the jury, when the 
 plaintiff recovered his term, were the profits of the 
 land accruing during the tortious holding of the de- 
 fendant. But as upon the introduction of the modern 
 system, the proceedings became altogether fictitious, 
 and the plaintiff merely nominal, the damages assessed 
 became nominal also ; and they have not since that 
 time included the injury sustained by the claimant 
 from the loss of his possession. It was therefore ne- 
 cessary to give another remedy to the claimant for 
 these damages; and this was effected by a new ap- 
 plication of the common action of trespass vi et armis, 
 generally termed an action for mesne profits : (a) in 
 which action, the plaintiff complains of his ejection 
 and loss of possession, states the time during which 
 the defendant (the real tenant) held the lands and 
 
 (a) Reev. E. L. -i vol. 169.
 
 380 OF THE ACTION 
 
 took the rents and profits, and prays judgment for the 
 damages which he has thereby sustained. 
 
 This action is partly superseded, when the relation 
 of landlord and tenant has subsisted between the par- 
 ties to the ejectment, by the provisions of the stat. 1 
 Geo. IV. c. 87, (a) which enables landlords to re- 
 cover in that action, the mesne profits accruing from 
 the day of the determination of the tenancy (without 
 reference to the day of the demise in the declaration) to 
 the day of the trial, or some preceding day. But this 
 mode of recovering the mesne profits is optional with 
 the landlord; and as an action for mesne profits must 
 notwithstanding be resorted to, for the recovery of those 
 profits from the day of the trial, or other preceding 
 day, to the day of obtaining possession, and as it is 
 often difficult for the landlord to ascertain what injury 
 he has actually sustained, by the holding over of the 
 tenant (the amount of the damages not being limited 
 to the amount of the rent) until he obtains actual pos- 
 session, this provision of the statute is in practice sel- 
 dom resorted to. 
 
 It has been said, that a lessor in ejectment may, if 
 he please, waive the trespass, and recover the mesne 
 profits in an action for use and occupation ; (6) but 
 this election must be limited to the profits accruing 
 antecedently to the time of the demise in the eject- 
 ment; for the action for use and occupation is founded 
 on contract, the action of ejectment upon wrong, and 
 
 (a) Ante, 321. 371. 584. Doe. <& Cheney v. Batten, 
 
 (6) Goodtitle w. North, Doug. Cowp. 243.
 
 FOB MESNE PROFITS. 381 
 
 they are therefore wholly inconsistent with each other 
 when applied to the same period of time ; since in 
 the one action the plaintiff treats the defendant as a 
 tenant, and in the other as a trespasser, (a) When, 
 however, a tenant holds over after the expiration of 
 the landlord's notice to quit, the landlord, after a re- 
 covery 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. (61) 
 
 The action for mesne profits may be brought pend- 
 ing a writ of error in ejectment, and the plaintiff 
 may proceed to ascertain his damages, and to sign his 
 judgment ; but the Court will stay execution until the 
 writ of error is determined, (c) 
 
 The action is bailable or not, at the discretion 
 of the Court, or Judge, and when an order for bail is 
 made, the recognizance is usually taken in two 
 years value of the premises, but this is also dis- 
 cretionary. (</) 
 
 The lessor of the plaintiff in the antecedent action 
 
 (a) Birch v. Wright, 1 T. R. 378. the better opinion that he is not. 
 
 (6) Timmings v. Rowlison, Burr. Ante, 153. 
 
 1603. It is not yet settled whe- (c) Harris v. Allen, Cas. Prac. 
 
 ther, when the ejectment is founded C. P. 46. Donford v. Ellis, 12 Mod. 
 
 upon a notice to quit given by the 138. 
 
 tenant, the landlord is entitled to (d) Hunt v. Hudson, Barn. 85. 
 
 maintain debt upon the 11 Geo. II. 1 Sell. Prac. 36. 
 c. 19, for double rent, but it seerns
 
 382 OF THE ACTION 
 
 of ejectment, is of course the person concerned in 
 interest, but he may bring his action for mesne profits 
 either in his own name, or that of his nominal 
 lessee, (a) The former, however, is the more advan- 
 tageous method ; as he may then, upon proper proofs, 
 recover damages for the rents and profits received by 
 the defendant, anterior to the time of the demise in 
 the ejectment, which cannot be done in an action at 
 the suit of the nominal plaintiff, () and the Courts 
 will not stay the proceedings until security be given 
 for the costs, which will be done when the action for 
 niesne profits is brought in the name of such nominal 
 lessee, (c) 
 
 It was once indeed doubted whether this action 
 could be maintained in the name of the plaintiff in the 
 ejectment, after a judgment by default against the 
 casual ejector, because, being a possessory action, an 
 entry must be either proved or admitted, neither of 
 which, it was argued, could in such case be done ; 
 but it is now settled, that there is no distinction be- 
 tween a judgment in ejectment upon a verdict and one 
 by default, the right of the claimant being in the one 
 case tried and determined, and in the other con- 
 fessed, (of) 
 
 A tenant in common, who has recovered in eject- 
 
 (a) It may here be incidentally his name. (Close's case, Skin. 247. 
 
 observed, that when the ancient Anon. Salk. 260.) 
 
 practice is resorted to, and the (6) B. N. P. 87. 
 
 plaintiff in the ejectment is a real (c) Say. Costs. 126. 
 
 person, the Court will not permit (rf) Aislin v. Parkin, Bu rr. 655 
 
 him to release the action for mesne Jeffries v. Byson, Stran. 960. 
 profits, should the lessor bring it in
 
 FOR MESNE PROFITS. 383 
 
 inent, may maintain an action for mesne profits against 
 his companion, (a) 
 
 A joint action for mesne profits, may be supported 
 by several lessors of the plaintiff in ejectment, after a 
 recovery therein, although there were only separate 
 demises by each, (b) 
 
 As the action for mesne profits is an action of tres- 
 pass, it cannot be maintained against executors or ad- 
 ministrators, for the profits accruing during the life- 
 time of the testator or intestate ; nor will a court of 
 equity interfere to enforce the payment of them 
 against personal representatives, when the lessor has 
 been deprived of his legal remedy by the mere acci- 
 dent of the defendant's death. But where the lessor 
 was delayed from recovering in ejectment by a rule of 
 the court of law, and by an injunction at the instance 
 of the defendant, who ultimately failed both at law 
 and in equity, the Court decreed an account of the 
 mesne profits against his (the defendant's) exe- 
 cutors, (c) 
 
 It is also doubtful whether the action can be main- 
 tained against a tenant for the holding over of his 
 undertenants, for it should be brought against the 
 person in actual possession and trespassing, (d) But 
 any person so found in possession after a recovery in 
 ejectment is liable to the action ; and it is no defence 
 
 (a) Goodtitle v. Tombs, 3 Wils. (c) Pulteney v. Warren, 6 Vez. 
 
 118. Cutting v. Derby, Black. 1077. J. 73. 
 
 (6) Chamier &anothert;.Llingon, (</) Burne v. Richardson, 4 
 
 5 M. & S. G4 S. C. 2 Chitty, 410. Taunt. 720.
 
 384 OF THE ACTION 
 
 to say that he was upon the premises as the agent and 
 under the licence of the defendant in ejectment, for 
 no man can license another to do an illegal act. But 
 the measure of the damages in such case will not be the 
 whole raesne profits of the lands, but will depend upon 
 the time such person has had them in his occupation, 
 together with the other circumstances of the case, (a) 
 
 In the case of Keech d. Warne v. Hall, (b] where it 
 was decided that a mortgagee might recover in eject- 
 ment without a previous notice to quit, against a tenant 
 claiming under a lease from the mortgagor, granted 
 after the mortgage, without the privity of the mortga- 
 gee, it was asked by the counsel for the defendant, if 
 such mortgagee might also maintain an action against 
 the tenant for mesne profits, which would be a manifest 
 hardship and injustice to the tenant, as he would then 
 pay the rent twice. Lord Mansfield, C. J. gave no 
 opinion OB that point ; but said, there might be a dis- 
 tinction, for the mortgagor might be considered as 
 receiving the rent in order to pay the interest, by an 
 implied authority from the mortgagee, until he de- 
 termined his will, (c) 
 
 The declaration in the action for mesne profits 
 must expressly state the different parcels of land 
 from which the profits arose, or the defendant may 
 plead the common bar. It should also state the time 
 when the defendant broke and entered the premises 
 and ejected the plaintiff, the length of time during 
 
 (a) Girdlestone v. Porter, K. B. (6) Doug. 21. Ante, 38. 
 M. T. 39 Geo. III. Wood. L. and T. (r) Et vide, 4 Ann.c. 16. s. 10. 
 511.
 
 FOR MESNE PROFITS. 385 
 
 which he so ejected him, and the value of the mesne 
 profits of which he deprived him ; and a declaration 
 which does not con tain these statements will be holden 
 ill on special demurrer; but the defect is cured by 
 verdict, or after judgment by default and writ of in- 
 quiry executed, by the operation of the stat. 4 Ann. 
 c. 16. (a) 
 
 In the statement of the damages in the declaration 
 the costs of the ejectment may be included, whether 
 the judgment be against the casual ejector, or against 
 the tenant or landlord; and when the judgment is 
 against the casual ejector, for want of an appearance, 
 the costs are invariably included in the statement of 
 the damages, though it is more prudent, for reasons 
 already assigned, in other cases to omit them; (6) 
 and in a case where after a recovery in ejectment, and 
 before an action for mesne profits, the defendant 
 became bankrupt, and the lessor inserted the taxed 
 costs of the ejectment 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. (c) 
 
 (a) Higgins >. Highfield, 13 East, et vide Utterson v. Vernon, 3 T. R. 
 407. 539, 47. Ante, 336. 
 
 (b) Gulliver v. Drinkwater, 2 T. (c) Gulliver v. Drinkwater, 2 T. 
 R. 261. Doe v. Davies, 1 Esp. 358; R. 261. 
 
 C C
 
 OF THE ACTION 
 
 The general issue is not guilty ; and if the plaintiff 
 declare against the defendant, for having taken the 
 mesne profits for a longer period than six years be- 
 fore ^action brought, the defendant may plead the 
 statute of limitations, namely, not guilty within six 
 years before the commencement of the suit, and 
 thereby protect himself from all but six years, (a) 
 
 (a) B. N. P. 88. Subject to the 
 defence founded on the statute of 
 j imitations, the party entitled to the 
 possession of real property, and of 
 chattels real, may, by the law of 
 England, recover the mesne profits 
 from the time his title accrued ; and 
 at law, this general right to recover 
 is not affected by any equitable cir- 
 cumstances in the situation of the 
 defendant ; such as his ignorance of 
 the plaintiff's right, or an innocent 
 mistake in point of law, as to the 
 construction of a demise, the due 
 execution of a power, and the like, 
 where the defendant may have ob- 
 tained possession in the fullest con- 
 fidence of the validity of his title. 
 
 In equity there are cases in which 
 the right to mesne profits is restricted 
 to the filing of the bill ; as where 
 the defendant has possessed in en- 
 tire and justifiable ignorance of an 
 adverse right, or where the plaintiff 
 has been guilty of laches in prose- 
 cuting his claim. See Dormer v. 
 Fortescue, 3 Ashurst, 130, and the 
 cases referred to 1 Maddock's 
 Chancery, 90, &c. 
 
 According to the civil law, and 
 still more according to the law of 
 some of the countries of Europe, 
 
 which have adopted the principles of 
 the civil law, the right to recover the 
 profits of real property enjoyed with- 
 out title, and to which the title of 
 the claimant is established, has been 
 restricted to an extent which will 
 appear extraordinary to an English 
 lawyer. 
 
 By the civil law as laid down in 
 the Senatus Consultum de Htere- 
 ditatis Petitione ; (D. Lib. 5. Tit. iii. 
 1. 20, &c.) bonae fidei possessors are 
 defined to be those " qui justas 
 " causas habuissent quare bona ad 
 " se pertinere existimassent ;" and 
 the distinctions as to liability for 
 intermediate 'profits in the various 
 cases of bona fides and mala fides are 
 laid down in the 5th book of the 
 Digest above cited. 
 
 Generally in the case of bona fide 
 possession, the true owner was en- 
 titled to mesne profits from the time 
 of litis contestation or plea. And the 
 time from which the bonce fidei pos- 
 session was liable, even when held to 
 be locupletior foetus, (as then having 
 the rents and profits in his hands in 
 specie and unconsumed) was the 
 period of final judgment, or, " rei 
 judicata." See a clear and concise 
 view of the Roman law upon this
 
 FOR MESNE PROFITS. 
 
 387 
 
 Neither bankruptcy, (a) nor a discharge under the In- 
 solvent Debtor's Act, (b] can be pleaded in bar to this 
 action ; and it has been held that the stat. 6 Geo. IV. 
 c. 16. s. 57, which directs, that all persons who shall 
 
 subject in Bynkershock (Opera 1,262.) 
 Lib. 8, c. 12. Observationum Juris 
 Romani. 
 
 The law of Scotland has gone be- 
 yond the civil law in favour of the 
 bon&Jidei possessor ; and the case of 
 bona fides has been very liberally 
 construed. Many questions involv- 
 ing this doctrine arose on the leases 
 granted by the late Duke of Queens- 
 bury, who being tenant in tail had 
 granted a great number of leases at 
 inadequate rents, taking very profit- 
 able grassums or fines, a thing which 
 had been held lawful by a series of 
 decisions of the Scotch Courts, but 
 finally, the law was settled otherwise 
 by the House of Lords, and all the 
 leases granted on such terms by the 
 Duke were set aside. (1 Bligh, 
 339.) 
 
 The next heir of entail in preju- 
 dice of whom these leases had been 
 granted brought actions for what 
 the law of Scotland terms "vio- 
 lent profits;" but it was held in these 
 cases that the bona fides of the te- 
 nants, the lessees, continued till the 
 final judgment in the House of 
 Lords referred to. 
 
 A very strong case is now pending 
 in the House of Lords. The late 
 Earl of Peterborough being entitled 
 as heir of entail to a considerable 
 estate in Scotland, gran ted in 1795 
 leases for a long term at rents 
 
 fully adequate at the time to the 
 highest previously received, but 
 taking a sum in hand as grassum or 
 fine, the next heir of entail insti- 
 tuted an action to reduce the 
 leases, and for " violent profits," and 
 they followed the decision in the 
 Queensbury case. The action had 
 been commenced in 1814. The 
 Court of Session first determined 
 that the bonte fidei possession of the 
 lessee ceased on the 12th of July, 
 1819, the date of the judgment in 
 the Queensbury cases; but subse- 
 quently fixed the period to be the 
 9th of March, 1819, the date of the 
 judgment of the Court of Session, 
 reducing and setting aside the lease. 
 The defendant had appealed from 
 the latter judgment which was af- 
 firmed in the House of Lords, (5th 
 July, 1822,) and he contended that 
 the period when bonce fidei posses- 
 sion ceased was that of affirmance in 
 the particular case. The point now 
 under appeal is, at which of the 
 periods 1819, or 1822, the defend- 
 ant became liable for violent or 
 mesne profits, the title of the plai ntiff' 
 having accrued in 1814. 
 
 As to the general principles of the 
 law of Scotland on this subject, see 
 Erskine, B. 2. Tit. 1. s. 25. Stair. 
 B. 2.Tit. l.s. 23. 
 
 (a) Goodtitle v. North. Doug. 584. 
 
 (b) Lloyd v. Peell, 3 B. & A. 407. 
 
 cc2
 
 388 OP THE ACTION 
 
 have given credit upon good and valuable considera- 
 tion bond fide, for any money whatsoever, which is 
 not due at the time of the bankruptcy, shall be ad- 
 mitted to prove such debts, &c. has been holden not 
 to extend to damages recoverable in an action for 
 mesiie profits. () 
 
 As also this action is for a tortious occupation, the 
 defendant cannot pay money into court. (6) 
 
 Where the plaintiff proceeds only for the recovery 
 of the mesne profits, accruing subsequently to the day 
 of the demise in the declaration, he need not prove 
 his title to the premises. The judgment in ejectment 
 is conclusive evidence of his right from that period ; 
 and it is immaterial whether the judgment is founded 
 on a verdict, or has been obtained by default against 
 the casual ejector ; and whether the action is brought 
 in the name of the real claimant, or the nominal plain- 
 tiff in the ejectment, (c) It was formerly indeed 
 holden that if the action were brought in the name of 
 such claimant, or after judgment by default against 
 the casual ejector, the judgment would not operate 
 by way of estoppel ; but that the defendant was at li- 
 berty to controvert the plaintifPs title ; because the 
 plaintiff in the action for mesne profits, in the one 
 case, and the defendant in the other, were not parties 
 to the record in the previous ejectment, (d) But it is 
 now settled that there is no solid distinction between 
 
 () Moggridge v. Davis, 1 Whit. B. N. P. 87. 
 
 16. (</) t Lill. Prac. Reg. 676. Jef- 
 
 (6) Holdfast v. Morris, 2 Wils. 115. fries v. Dyson, Stran. 960. 
 (c) Aislin v. Parkin,. Burr. 688.
 
 FOR MESNE PROFITS. 389 
 
 the two judgments, the right being tried and deter- 
 mined in the one case, and confessed in the other ; 
 and that the claimant and tenant in possession are ju- 
 dicially to be considered the only parties to the suit. 
 
 When, therefore, the plaintiff seeks to recover such 
 profits only as have accrued subsequently to such de- 
 mise, no other evidence of his title is, generally speak- 
 ing, required, than examined copies of the judgment in 
 ejectment, of the writ of possession, and of the sheriff's 
 return thereon ; (a) and if the plaintiff has been let 
 into possession of the premises by the defendant, an 
 examined copy of the judgment in ejectment only 
 will be sufficient. (6) It has indeed been doubted, 
 whether evidence of the writ of possession and 
 sheriff's return is ever necessary, except upon judg- 
 ment by default against the casual ejector, but it is, 
 notwithstanding, prudent to be prepared with it in 
 all cases, unless the plaintiff has been let into pos- 
 session by the defendant, (c) 
 
 The judgment in ejectment, however, is not evi- 
 
 (a) Astlin v. Parkin, B. N. P. 87. ejector, no rule having been en- 
 
 (6)Calvertu. Horsefall,4 Esp. 67. tered into, the lessor shall not 
 
 (c) Vide Thorp v. Fry, B. N. P. maintain trespass without an ac- 
 
 87, et S. N. P. 693. (n. 50), et tual entry, and therefore ought to 
 
 Aislin v. Parkin, Burr. 665. The prove the writ of possession exe- 
 
 reason assigned for this distinction cuted. But this reasoning is not 
 
 is, that where the judgment is had satisfactory ; for if the tenant be 
 
 against the tenant in possession, the concluded by the judgment in the 
 
 defendant, by entering into the ejectment from controverting the 
 
 consent rule, is estopped both as to plaintiff's title, it should seem he 
 
 the lessor and lessee, so that either is also concluded from controvert- 
 
 may maintain trespass, without au ing his possession, for possession is 
 
 actual entry, but' that where the part of his title, 
 judgment is had against the casual
 
 390 OF THE ACTION 
 
 deuce against a previous occupier; (a) nor is a judg- 
 ment against the wife evidence in an action for mesne 
 profits against the husband and wife, for the wife's 
 confession of a trespass committed by her, cannot be 
 given in evidence to affect the husband, in an action 
 in which he is liable for the damages and costs ; (6) 
 and if the action for mesne profits be brought against 
 the landlord, after a judgment by default against 
 the casual ejector, such judgment will not be evi- 
 dence against him, without proof that he received 
 due notice of the service of the ejectment upon the 
 tenant in possession, (c) But where a landlord sub- 
 sequently to the judgment promised to pay the 
 rent and costs to the plaintiff, Lord Ellenborough, 
 C. J. was of opinion, that such promise, there being 
 no proof that he had received notice of the ejectment, 
 amounted to an admission, that the plaintiff was 
 entitled to the possession of the premises, and that 
 he was a trespasser, (c) 
 
 The plaintiff must also prove the length of time 
 that the defendant (or his tenants if he be the land- 
 lord) have been in possession of the premises, for 
 the judgment in ejectment affords no evidence of 
 possession, and he can only recover damages for 
 the time he proves the defendant to be in actual 
 occupation, or receipt of the rents and profits. The 
 production of the consent rule proves possession, only 
 from the time of the service of the declaration, (d) 
 
 (a) B. N. P. 87. (d} Dodwell v. Gibbs, 2 C. & P. 
 
 (6) Denn v. White, 7 T.R. 112. 615. 
 (c) Hunter v. Britts, 3 Camp. 455.
 
 FOR MESNE PROFITS. 391 
 
 He must also, of course, prove the amount of his 
 damages ; and as the action for mesne profits is an 
 action of trespass vi et armis, the jury are not con- 
 fined in their verdict to the mere rent of the premises, 
 although the action is said to be brought to recover 
 the rents and profits of the estate, but may give such 
 extra damages as they may think the particular cir- 
 cumstances of the case may demand, (a) He must also 
 prove the amount of his costs where they are stated 
 in the declaration as part of his damages, and if the 
 ejectment has been defended, his claim is limited to 
 the amount of the taxed costs only. (6) Yet a plain- 
 tiff in this action has been allowed to recover, by way 
 of damages, the full costs incurred by him in a court 
 of error in reversing a judgment in ejectment ob- 
 tained by the defendant, although they were costs 
 which the court of error had no power to allow, (c) 
 
 The plaintiff will also be entitled to give evidence 
 of any injury done to the premises, in consequence 
 of the misconduct of the defendant, provided such 
 fact be especially alleged in the declaration. 
 
 When the plaintiff seeks to recover the mesne profits 
 accruing antecedent to the day of the demise in the 
 declaration, it follows from what has been already 
 said, that he must produce the regular proof of his 
 title to the premises. He must also, it appears, in such 
 case prove an entry upon the lands, though some 
 doubt seems to exist as to what proof of entry will be 
 
 (a) Goodtitle v. Tombs, 3 Wils. 471. Doe v. Davis, 1 Esp. 358. 
 118. 121. (c) Nowell . Roake, 7 B. &C. 
 
 (6) Brooke u. Bridges, 7 B. Moore, 404.
 
 392 OF THE ACTION 
 
 sufficient. By some it has been said, that the plaintiff' 
 is entitled to recover the mesne profits only from the 
 time he can prove himself to have been in possession ; 
 and that, therefore, if a man make his will and die, 
 the devisee will not be entitled to the profits until he 
 has made an actual entry, or in other words until the 
 day of the demise in the ejectment ; for that none can 
 have an action for mesne profits unless in case of 
 actual entry and possession. Others have holden, 
 that when once an entry~has been made, it will have 
 relation to the time the title accrued, so as to entitle 
 the claimant to recover the inesne profits from that 
 time ; and they say that if the law were not so, the 
 Courts would never have suffered plaintiffs in eject- 
 ments to lay their demises back in the manner they 
 now do, and by that means entitle themselves to re- 
 cover profits, to which they would not otherwise be 
 entitled, (a) The latter seems the better opinion ; 
 but these antecedent profits are now seldom the object 
 of litigation, from the practice of laying the demise 
 and ouster immediately after the time when the lessor's 
 title accrues. (&) It should however be observed, 
 that when a fine with proclamations has been levied, 
 an entry to avoid it will not, in this action, entitle the 
 plaintiff to the profits between the time of the fine 
 levied, and the time of the entry, although they pro- 
 bably may be recovered in a court of equity, (c) 
 
 If the plaintiff in an action for mesne profits re- 
 cover less than forty shillings, and the judge do not 
 
 (a)Metcalfv. Harvey, 1 Ves. 248, (c) Dormer v. Fortescue, 3 Alk. 
 9. B. N. P. 87. 124. Compere v. Hicks, 7 T. R. 727. 
 
 (ft) Ante, 212.
 
 FOR MESNE PROFITS. 393 
 
 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 lessee, (a) 
 
 If in an ejectment there be a verdict for the plain- 
 tiff, and the defendant bring a writ of error, and enter 
 into a recognizance 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 recognizance, but 
 may sue out an elegit, or writ' of inquiry, to recover 
 the mesne profits since the first judgment in eject- 
 ment, (b) 
 
 (a) Doe v. Davis, 6 T. R. 593. (6) Short v. Heath, 2 Cromp. Prac. 
 S. C. 1 Esp. 358. 225.
 
 APPENDIX. 
 
 No. 1. 
 
 o Notice to 
 
 LR quitbythe 
 
 I hereby give you notice to quit and deliver up, on the landlord, 
 day of next, the possession of the messuage or f^ 6 ^" 
 
 dwelling house, (or "rooms and apartments," or "farm lands to year. 
 and premises,") with the appurtenances, which you now hold 
 of me, situate in the parish of in the county 
 
 of 
 
 Dated the day of 18 Yours, &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, 
 
 I do hereby, as the agent for and on behalf of your landlord fo^the^" 1 
 A.B. of give you notice to quit and deliver up, on (&c.) (as landlord. 
 in No. 1.) which you now hold of the said A.B. situate, (8cc.) 
 Dated, (&c.) Yours, &c. E. F. 
 
 Agent for the said A. B. 
 To Mr. C. D. (&c.) 
 
 No. 3. 
 
 SlR. The like, 
 
 Tii- n HT bytheland- 
 
 I hereby give you notice, &c. (as in No. 1. to " county lord, where 
 
 of " ) provided your tenancy originally commenced at that ^cement 
 time of the year ; or otherwise, that you quit and deliver up of the te- 
 the possession of the said messuage, (&c.) at the end of the doubtful.
 
 396 APPENDIX. 
 
 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.) Yours, &c. 
 
 To Mr. C. D. (&c.) A. B. 
 
 No. 4. 
 
 The like, SlR 
 
 by a tenant . . 
 
 from year I hereby give you notice of my intention to quit, and that 
 
 - sna ^ on ^ a ^ ^ next, quit and deliver up the 
 
 tiontoquit. possession of the messuage, (See.) which I now hold of you, 
 situate (&c.) 
 
 Dated, (&c.) Yours, &c. 
 
 To Mr. A. B. C. D. 
 
 No. 5. 
 
 Letter of Know all men by these presents, that I, A. B. of, (&c.) have 
 to enter made, ordained, constituted and appointed, and by these pre- 
 
 andseai a sen ts do make, ordain, constitute and appoint C. D. of, (&c.) 
 
 lease on the 
 
 premises, my true and lawful attorney, for me, and in my name, to 
 
 enter into and take possession of a certain messuage, (&c.) 
 late in the tenure and occupation of G. H., situate (&c.) but 
 now untenanted ; and after the said C. D. hath taken posses- 
 sion 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, (&,c.) to hold the same to him the 
 saidE.F. his executors, administrators, and assigns, from the 
 of last past, before the date hereof, for the 
 
 term of seven years, at the yearly rent of a peppercorn, if law- 
 fully demanded ; subject to a proviso, for making void the 
 same, on tendering the sum of sixpence to the said E. F. his 
 executors or administrators. In witness (Sec.) 
 Sealed and delivered (&c.) 
 
 No. 6. 
 
 Affidavit of I. K. of, (&c.) gentleman, uaaketh oath and saith, that he 
 the samef was present and did see A. B. of, (&c.) named in the letter of 
 
 attorney hereunto annexed, duly sign, seal and deliver the 
 
 said letter of attorney. 
 
 Sworn, (8cc.) I. K.
 
 APPENDIX. 31)7 
 
 No. 7. 
 
 This indenture made the day of (&c.) between A. B. Lease. 
 of, (&c.) of the one part, and E. F. of, (&c.) of the other part, 
 witnesseth, that the said A. B. for and in consideration of the 
 sura 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 whereof 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 messuage, (Sec.) situate, (&c.) late in the tenure and oc- 
 cupation of G. H. but now untenanted ; to have and to hold 
 the same unto the said E. F. his executors and administra- 
 tors, from the day of last past, before the date hereof, 
 for and during and unto the full end and term of seven years 
 from thence next ensuing, and fully to be complete and ended; 
 yielding and paying therefore yearly and every year, during 
 the said term, unto the said A. B. or his assigns, the rent of 
 one peppercorn, if lawfully demanded at the feast of 
 Provided always, and these presents are on this condition, 
 that if the said A. B. or his assigns shall at any time or times 
 hereafter, tender or cause to be tendered unto the said E. F. 
 his executors and administrators, the sum of sixpence, that 
 then and in such case, and from thenceforth, this present in- 
 denture, and every thing herein contained, shall cease, deter- 
 mine, and be absolutely void, any thing herein contained to 
 the contrary thereof in any wise notwithstanding. In wit- 
 ness whereof, the parties hereto 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 V 
 duly stamped in the presence of I. K.J 
 
 No. 8. 
 
 Take notice, that unless you appear in his Majesty's Court Notice to 
 of King's Bench at Westminster, within the first four days a PP ear ' &c- 
 (or. if in the country, within the first eight days) of next
 
 398 APPENDIX. 
 
 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. I. K. plaintiffs attorney. 
 
 No. 9. 
 Affidavits I n the King's Bench. 
 
 move for 
 
 in d K m B Dt TU*. f E> R on the demise of A - B - plaintiff, and 
 
 o.P 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 hereunto 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 
 mentioned, by entering on the threshold of the outer door 
 thereof; and putting his finger into the keyhole of the said 
 door, the said messuage being then locked up and uninhabit- 
 ed, 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 annexed, 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 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 
 afterwards, the said G. H. the defendant, came and removed 
 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, deliver to the said defendant G. H. who 
 still continued upon the said threshold, a true copy of the 
 declaration of ejectment, and notice thereunder written hereto 
 annexed. 
 
 Sworn, (&c.)
 
 APPENDIX. 
 
 No. 10. 
 
 399 
 
 William the Fourth (&c.) to the sheriff of greeting: Original 
 
 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 where- 
 
 soever we shall then be in England, (or in C. P. " that he be 
 before our justices at Westminster, on ") to show 
 
 wherefore, with force and arms, he entered into mes- 
 
 suages, (See.) 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 Doe, and against our peace : And have you 
 there the names of the pledges, and this writ. Witness our- 
 self at Westminster, the day of in the 
 
 year of our reign. 
 
 No. 11. 
 
 TI j 4. S JOHN DEN. Sheriff'sre- 
 
 Pledges to prosecuted "" sr ' 
 
 (.RICHARD FEN. 
 
 The within-named RichardC JOHN SMITH. 
 Roe is attached by pledges), WILLIAM STILES. 
 
 No. 12. 
 
 In the King's Bench, (or Common Pleas.) 
 term, in the year of the reign of King William the Deciara- 
 
 Fourth, (to wit) Richard Roe late of yeoman, was 0,",^ O n 
 
 tached to answer John Doe of a plea, wherefore the said a single de- 
 Richard Roe, with force and arms, &,c. entered into 'tTc'e to' 1 
 messuages, barns, stables, outhouses, a PP ear 
 
 'thereto. 
 
 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
 
 APPENDIX. 
 
 his attorney complains ; 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 assigns, from the day of 
 
 then last past, for and during and unto the full end 
 and term of years from thence 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 appurtenances, 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 Doe, in 
 manner 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 damage to the value of 
 and therefore he brings his suit, &c. 
 
 No. 13. 
 
 Notice to Mr. C. D. 
 
 appear. j am m f orme( j t na t you are in possession 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 Lon- 
 
 don 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 West- 
 minster,") by some attorney of that court; and then and 
 there, by rule of the same court, to cause yourself to be made 
 defendant in my stead; otherwisel shall suffer judgment there- 
 in to be entered against me by default, and you will be turned 
 out of possession 
 
 Yours, &c. 
 
 Richard Roe.
 
 APPENDIX. 
 
 40; 
 
 No. 14. 
 
 In the King's Bench, (or Common Pleas). 
 
 term (&c.) 
 
 on a double 
 
 (to wit,) Richard Roe, late of yeoman, was attached to demise, 
 
 answer John Doe, of a plea wherefore the said Richard Roe, 
 with force and arms, &c. entered into messuages (&c.) 
 
 with the appurtenances, situate &c. which A. B. had demised 
 to the said John Doe, for a term which is not yet expired ; 
 And also wherefore the said Richard Roe, with force and 
 arms, &c. entered into other messuages, (&c) with 
 
 the appurtenances, situate &c. which E. F. had demised to 
 the said John Doe for a term which is not yet expired, and 
 ejected him from his said several farms, and other wrongs, 
 (&c.) And thereupon, (8tc.) that whereas the said A. B. on 
 &c. at 8cc. had demised the said tenements first above men- 
 tioned with the appurtenances, to the said John Doe ; to have 
 and to hold the same to the said John Doe and his assigns, 
 From the day of then last past, for and during and 
 
 unto the full end and term of years from thence next en- 
 
 suing, and fully to be complete and ended.* And also that 
 whereas the said E. F. on &c. at &c. had demised the said 
 tenements secondly above-mentioned with the appurtenances, 
 to the said John Doe, to have and to hold the same to the 
 said John Doe and his assigns, from the said day of 
 then last past, for and during and unto 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 John Doe entered into the said several tenements first 
 and secondly above mentioned with the appurtenances, and 
 became and was thereof possessed, for the said several terms 
 so to him thereof respectively granted : And the said John 
 Doe being so thereof possessed, the said Richard Roe after- 
 wards, to wit, on &,c. with force and arms, (&c.) entered into 
 the said several tenements first and secondly above mentioned 
 with the appurtenances, which the said A. B. and E. F. had 
 respectively demised to the said John Doe, in manner and for 
 the several terms aforesaid, which are not yet expired, and 
 ejected the said John Doe from his said several farms ; and 
 
 D D
 
 402 APPENDIX. 
 
 other wrongs ; &c. (as in the preceding precedent with the 
 like notice to appear.) 
 
 No. 15. 
 The like, (As in last precedent to this mark.*) By virtue of which said 
 
 with two , . i-iriTx i i i r> 
 
 ousters. demise, the said John Doe entered into the said tenements first 
 above mentioned with the appurtenances, and became and was 
 thereof possessed for the said term so to him thereof granted, 
 and the said John Doe being so thereof possessed, the said Ri- 
 chard Roe afterwards, (to wit,) on &c. with force and arms, &c. 
 entered into the said tenements first above mentioned with the 
 appurtenances, which the said A. B. had demised to the said 
 John Doe, in manner and for the term aforesaid, which is not 
 yet expired, and ejected him the said John Doe from his said 
 farm : And also, that whereas the said E. F. on &c. at &c. 
 had demised the said tenements secondly above mentioned, 
 with the appurtenances, to the said John Doe ; to have and 
 to hold the same to the said John Doe and his assigns, from 
 the said day of then last past, for and during and 
 
 unto the full end and term of years from thence next en- 
 
 suing, and fully to be complete and ended ; By virtue of which 
 said last mentioned demise, the said John Doe entered into 
 the said tenements secondly above mentioned with the appur- 
 tenances, and became and was thereof possessed for the said 
 last mentioned term s6 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 secondly above mentioned with the appur- 
 tenances, which the said E. F. had demised to the said John 
 Doe, in manner and for the term last aforesaid, which is not 
 yet expired, and ejected the said John Doe from his said last 
 mentioned farm, and other wrongs, &c. (as in No. 14, with the 
 like notice to appear.) 
 
 No. lb\ 
 
 8ervice"of f ^ n ^ m ' s Bencn (Common Pleas, or Exchequer Pleas.) 
 declaration T> ( f John Doe on the demise of A. B. plaintiff, and 
 
 SeS?" " * Richard Roe ' defendant. 
 
 I- K. of gentleman, maketh oath, that he this de- 
 
 ponent did on &c. * personally serve C. D. tenant in posses- 
 sion of the premises in the declaration of ejectment hereunto
 
 APPENDIX. 403 
 
 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 
 said C. D. and explained to him the intent and meaning 
 of such service,^ (or generally thus : and this deponent, at 
 the same time, acquainted the same C. D. of the intent and 
 meaning of the said declaration and notice.) 
 
 Sworn, &c. I. K. 
 
 No. 17. 
 
 (As in last precedent to this mark*) personally serve C. D. T ^ e like 
 (&,c.) tenants in possession, (8tc.) (as in the last) with the said there are 
 declaration, and the notice thereunto 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 directed 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 re- 
 spectively the intent and meaning of such service ; (or gene- 
 rally, 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 noticed) 
 
 Sworn, &c. I. K. 
 
 No. 18. 
 
 (As in No. 16. to *) personally serve C. D. tenant in pos- Theiike, 
 session of part of the premises in the declaration of ejectment declaration 
 hereunto annexed mentioned, with a true copy &c. (as in No. was served 
 16 to f) : And this deponent further saith, that he did, on the nant, and 
 same day, also serve G. H. tenant in possession of other part the ^ lfe of 
 (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. H. the wife of the said G. H. at the dwelling-house 
 of the said G. H. being a 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. 
 
 DD2
 
 404 
 
 APPENDIX. 
 
 The like, 
 
 23, where 
 the pre- 
 mises are 
 untenant- 
 ed. 
 
 T <. 
 Between 
 
 No. 19. 
 
 In the King's Bench (&c.) 
 
 f John Doe on the demise of A. B. plaintiff, and 
 
 ? 
 
 t Richard Roe, ...... defendant. 
 
 A, B. of lessor of the plaintiff in this case, and 
 
 I. K. both of gentleman, 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 hereto 
 annexed, and the notice thereunder written upon the door of 
 the messuage in the said declaration mentioned, (or, in case 
 the ejectment is not for the recovery of a messuage, " upon 
 being a notoriousxplace of the lands, tenements or here- 
 ditaments, comprised in the said declaration in ejectment,") 
 there being no tenant then in actual possession thereof. And 
 this deponent 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 deponent, as landlord of such messuage, (or 
 "lands, tenement, or hereditaments,") with the appurtenances, 
 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, 
 bearing date &c. and made between &c. and that no sufficient 
 distress was then to be found upon the said messuage, (or, 
 "lands, tenements, or hereditaments,' 1 ) with the appurtenances, 
 countervailing the arrears of rent then due to this deponent ; 
 And this deponent further saith, that at the time of affixing 
 the copy of the said declaration in ejectment as aforesaid, he 
 had power to re-enter' the said messuage, (or lands, tenements, 
 and hereditaments,") with the appurtenances, by virtue of 
 the said lease, for the non-payment of the rent so in arrear as 
 aforesaid. 
 
 A B 
 
 Sworn, (&c.) ' ' 
 
 next after 
 
 No. 20. 
 in the 
 
 year of &c. 
 
 Rule for 
 
 judgment, D oe on 
 
 for the 
 
 whole pre- v. Roe J of (or, if the premises are un- 
 
 tenanted, " unless some person claiming title to") the pre- 
 mises in question shall appear and plead to issue, on 
 
 o f A. B. ^Unless the tenant in possession 
 j
 
 APPENDIX. 405 
 
 next after let judgment 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. tenant in pos- The like, 
 v. Roe ...... ^session of part of the premises for part ' 
 
 in question, shall appear and pleud to issue, on next 
 
 after let judgment be entered for the plaintiff, against 
 
 the now defendant Roe, by default : But execution shall issue 
 for such part of the premises only as is in his possession. 
 Udon the motion of Mr. 
 
 By the Court. 
 
 No. 22. 
 
 Doe on the demise of A. B. 1 Unless C. D. (&c.) tenants in The like, 
 v. Roe ...... j possession of part of the pre- J h 
 
 niises in question, and unless or some other person raises are 
 
 claiming title to such part of the said premises as are unte- anTpaV 
 nanted, shall appear and plead to issue, on next after untenant- 
 
 let judgment be entered for the plaintiff 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 other parts as are untenanted. 
 
 By the Court. 
 
 No. 23. 
 
 As yet of term, in the year, &c. Judgment 
 
 Witness, Charles Lord Tenterden. plainti 
 
 - (to wit,) John Doe, on the demise of A.B. puts in his '((' *J 
 
 v r original m 
 
 place I. K. his attorney, against Richard Roe, in a plea of K. B. with 
 trespass and ejectment of farm. ^1"'"" 
 
 - (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 attached to answer 
 John Doe, &c. (copy the declaration 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
 
 406 
 
 APPENDIX. 
 
 preclusion of the said action of the said J. D. whereby the 
 said J. D. remains therein undefended against the said R. R. : 
 Therefore it is considered, that the said J. D. recover against 
 the said R. R. his said term yet to come of and in the tene- 
 ments aforesaid, with the appurtenances ; and also his damages 
 sustained by reason of the trespass and ejectment aforesaid : 
 And hereupon the said J. D. freely here in court remits 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, 8tc. : 
 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 possession of his said term yet to come 
 of, and in the tenements aforesaid, with the appurtenances ; 
 and it is granted to him, returnable before the said lord the 
 king, on wheresoever, &c. 
 
 No. 24. 
 
 -on (or next after) in the 
 
 -(to wit) Doe on the demise of A. 
 
 Consent of 
 
 attornies, 
 
 for the te- ~~ 
 
 nant to be against Roe, for messuages (&c.) in 
 
 admitted ,^ i. r A u -j 
 
 to defend the parish ot in the said county : 
 
 &c.in K.B. ( or> if there be several demises, say) " Doe, 
 
 on the demise of A. B. for messuages, 
 
 (&c.) in the parish of in the said 
 
 year, &c. 
 
 It is ordered by 
 the consent of the 
 attornies for both 
 parties, that C. 
 D. be made de- 
 fendant in the 
 stead of the now 
 defendant Roe, 
 and do forthwith 
 appear at the suit 
 of the plaintiff; 
 and (if the eject- 
 
 county, and also on the demise of E. F. 
 for other messuages (&c.) in the 
 
 parish of in the said county, against 
 
 Roe ;" and if the tenant appear for part 
 only, add, " being part of the premises 
 mentioned in the declaration." > 
 
 ment be by bill) file common bail, and receive a declaration in 
 an action of trespass and ejectment, for the premises in ques- 
 tion, which said premises he the said C. D. does hereby admit 
 to be or consist of, (Here describe the premises for which it is 
 intended to defend) for which he intends as (tenant or landlord, 
 as the case may be) to defend this action of trespass and 
 ejectment. And it is further ordered by the like consent, 
 that the said C. D. do forthwith plead not guilty thereto ;
 
 APPENDIX. 407 
 
 and upon the trial of the issue,* confess lease entry and 
 ouster, and that he was, at the time of the service of the said 
 declaration, in possession of the premises hereinbefore men- 
 tioned and specified, and insist upon the title only, otherwise 
 let judgment be entered for the plaintiff against the now 
 defendant Richard Roe, by default, and if upon trial of the 
 said issue, the said C. D. shall not confess lease, entry, and 
 ouster, and such possession as aforesaid, whereby the plaintiff 
 shall not be able further to prosecute his (writ or bill) against 
 the said C. D. then no costs shall be allowed for not further 
 prosecuting the same, but the said C. D. shall pay costs to 
 the plaintiff, in that case to be taxed by the master. 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 the said (writ 
 or bill) for any otbex cause than for not f confessing lease, 
 entry, ouster, and such possession as aforesaid, then the lessor 
 of the plaintiff shall pay to the said C. D. costs in that case to 
 be adjudged. I. K. attorney for plaintiff, 
 
 L. M. attorney for defendant. 
 
 No. 25. 
 
 In the Common Pleas. 
 
 term in the year, &c. Consent 
 
 the day of *{? in 
 
 (to wit) Doe, on the demise of") It is ordered by 
 
 A. B. against Roe. J consent of I. K. 
 
 attorney for the plaintiff, and L. M. attorney for C. D. who 
 claims title to the tenements in question, 
 
 which premises he, the said C. D. hereby admits to be or consist 
 of (here describe thepremisesfor which it is intended to defend) for 
 which he intends as (tenant or landlord} to defend this action 
 of trespass and ejectment, that he may be admitted defendant, 
 and that the said defendant shall immediately appear by his 
 attorney, who shall receive a declaration, and plead thereto 
 the general issue, this term ; and at the trial thereupon to be 
 had, the said defendant shall appear in his own proper person, 
 or by counsel or attorney, and confess lease, entry and ouster, 
 and that he was, at the time of the service of the declaration, 
 in possession of the premises hereinbefore mentioned and spe-
 
 408 APPENDIX. 
 
 cified, and insist upon the title only, otherwise let judgment 
 be entered for the plaintiff against the now defendant by de- 
 fault. And by the like consent, it is ordered, that if upon 
 trial of the said issue, the said C. D. shall not confess lease 
 entry and ouster, and such possession as aforesaid, whereby 
 the plaintiff shall not be able further to prosecute this action 
 against the said C. D., then no costs shall be allowed for not 
 further prosecuting the same, but the said C. D. shall pay 
 costs to the plaintiff's lessor in that case, to be taxed by the 
 prothonotary. And it is further ordered by the like consent, 
 that if upon the trial of the said issue, a verdict be found for 
 the said C. D. or it shall happen that the plaintiff shall not 
 further prosecute his said action for any other cause than for 
 not confessing lease entry and ouster, and such possession as 
 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. 26. 
 
 Affidavit In the King's Bench. 
 
 of ruie P to C. D. of &c. maketh oath and saith, that no actual ouster 
 
 authorize of the lessor of the plaintiff has been committed by this depo- 
 
 the tenant , , . . .. , ,. . , . 
 
 to confess nent, and that (as he this deponent verily believes) this eject- 
 
 1 e e * se and ment may involve a question between tenants in common, or 
 in K. B. joint-tenants. 
 
 Sworn, (&c.) C. D. 
 
 No. 27. 
 
 Rule in Doe, on the demise of A. B. v. ) Upon reading the rule 
 
 K. B. to 
 
 authorize ^ oe ^ made yesterday, and upon 
 
 toVnfesf hearin g Mr - &c - for the lessor of the plaintiff, and Mr. 
 
 lease and &c. for the tenant ; it is ordered, that the defendant 
 
 entry only. enter into a rule for confessing lease, entry, and possession, 
 and also for confessing ouster 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. 
 
 By the Court
 
 APPENDIX. 
 
 4W) 
 
 No. 28. 
 Doe ^ It is ordered, &c. (as in No. 24 to *) confess lease, 
 
 f, . ,, Kuletnere* 
 
 v. > entry, and that he was at the time of the service of on. 
 
 Roe.J the declaration, in possession of the premises here- 
 inbefore mentioned and specified, and also ouster 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. (as in No. 24. to f) confessing lease, entry, and such pos- 
 session as aforesaid, 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. 
 
 Doe, on the demise of A. B. v. \ It is ordered that E. F. Rule in 
 
 Roe ) landlord of the tenant in admitting 
 
 possession of the premises in question in this cause, shall be j^d ^de- 
 joined and made defendant with the said tenant, if he shall fend, &c. 
 appear : And the said E. F. desiring, if the said tenant 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.
 
 410 
 
 APPENDIX. 
 
 No. 30. 
 
 giiUy. fDOt C> D 1 term(&c.) And the said 
 
 ats. > C. D. by L. M. his attorney, 
 
 Doe, on the demise of A. B. J comes and defends the force and 
 injury, when, &c. and says that he is not guilty of the sup- 
 posed trespass and ejectment, (or if several ousters are laid in 
 the declaration, " of the supposed 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. 
 
 No. 31. 
 
 C. D -J And the said by 
 
 demesne. a t 8i \. his attorney comes and de- 
 
 Doe, on the demise of A. B.J fends the force and injury, 
 when, Sac. 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 ancient demesne of the 
 crown of the king of England, 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 elsewhere 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 cognizance of the said plea, &c. 
 
 No. 32. 
 
 Affidavit 
 
 l * cco ~ C. D. the tenant in possession of the premises in the decla- 
 
 of ancient ration of ejectment in this cause above mentioned, maketh 
 
 ine ' oath, and saith, that the said premises in the said declaration 
 
 in this cause above mentioned, with the appurtenances-, are 
 
 held of as of his manor of in the county of 
 
 and which said manor is holden in ancient demesne : 
 
 And this deponent further saith, and there is a court of ancient 
 demesne held within the said manor of and that there
 
 APPENDIX. 
 
 411 
 
 are suitors in the same court, in which said 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 
 deponent further saith, that to the best of this deponent's 
 knowledge and belief, the said A. B. the said lessor of the 
 plaintiff is seized in his demesne as of fee of and in the said 
 premises with the appurtenances in the said declaration of 
 ejectment mentioned. 
 
 Sworn, 8cc. C. D. 
 
 No. 33. 
 
 Afterwards, that is to say, on Sec. at &c. before, (&c.) comes Postea for 
 the within-named John Doe, by his attorney within mentioned defeudant 
 
 ' . J J on a non- 
 
 and the within-named C. D. although solemnly required, suit,fomot 
 comes not, but makes default; therefore, let the jurors of the J^/^nt^ 
 jury whereof mention is within made, be taken against him and ouster. 
 by his default; and the jurors of that jury being summoned 
 also to come, and to speak the truth of the matters within con- 
 tained, being chosen, tried and sworn, the said C. D. although 
 solemnly called to appear by himself or his counselor attorney, 
 to confess lease, entry and ouster, and possession of the pre- 
 mises hereinbefore mentioned, doth not come, by himself or 
 his counsel or attorney, nor doth he confess lease, entry, ouster, 
 and possession, but therein makes default ; wherefore the said 
 John Doe doth not further prosecute his writ (or bill) against 
 the said C. t). 
 Therefore, (&c.) 
 
 No. 34. 
 
 (To the end of the issue, and then as follows :) At which Judgment 
 day before our lord the king at Westminster comes (or in the ^nthf as 
 Common Pleas or Exchequer " At which day comes here/') * part of 
 the parties aforesaid, by their attornies aforesaid ; and here- 
 
 upon the said C. D. as to - parcel of the tenements in or the de ~ 
 the said declaration mentioned, relinquishing his said plea by on a nolle 
 him above pleaded, says that he cannot deny the action of the j t *> 9 the 
 said John Doe, nor but that he the said C. D. is guilty of the residue. 
 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
 
 412 APPENDIX, 
 
 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. 
 together with his damages, costs and charges by him in this 
 behalf sustained : Therefore it is considered, 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 appurtenances, 
 parcel, (8cc.) 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 - aforesaid, to cause him 
 to have possession of his said term yet to come of and in the said 
 - with the appurtenances, parcel, f&c.) and it is granted 
 to him, returnable before our said lord the king on > 
 
 wheresoever, (&c.) (or in the Common Pleas or Exchequer, 
 " returnable here on - &c.") 
 
 No. 35. 
 
 Rule for Doe, on the demise of A. B. u.~) Upon reading a rule made 
 
 execution V 
 
 I 
 
 execuion i 
 
 against the Koe ............ I m this cause on 
 
 re an< ^ ^' ^ ' t ^ ierem named, having made himself defendant in 
 the land- the stead of the casual ejector, pursuant to the said rule, and 
 been made tne P ostea i Q the said cause being produced and read, and a 
 defendant, rule made in the same cause this day ; it is ordered that the 
 at the trial, said E. F. upon notice of this rule to be given to his attorney, 
 (&c.) show cause, why the plaintiff should not have leave to 
 sue out execution, upon the judgment signed against the 
 casual ejector pursuant to the first mentioned rule. Upon 
 the motion of Mr. 
 
 By the Court. 
 
 No. 36. 
 Haberefa. William the Fourth, (&c.) To the sheriff of -- 
 
 cias posses- 
 
 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,"") and by the judgment of the same court recovered
 
 APPENDIX. 413- 
 
 against C. D. (or if the judgment be by default " against 
 Richard Roe,") his term J then and yet to come of and in 
 dwelling-houses, (&c.) (as in the declaration in eject- 
 ment) with the appurtenances, 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 
 
 until the full end and term of years from thence next 
 
 ensuing, and fully to be complete and ended, * by virtue of 
 which said demise, the said J. D. entered into the said tene- 
 ments with the appurtenances, and was possessed thereof, until 
 the said C. D. afterwards (to wit,) on (&c.) with force and 
 arms, (&c.) entered into the said tenements with the ap- 
 purtenances, which the said A. B. had demised to the said 
 J. D. in manner, and for the term aforesaid, which was not 
 then, nor is yet expired, and ejected the said J. D. from his 
 said farm tt^" ; whereof the said C. D. is convicted, as appears 
 to us of record ; therefore 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 where- 
 
 soever we shall then be in England, (or by bill, " to us at 
 Westminster, on next after ,"f) and have there 
 
 (or by bill, " have there then,"") this writ. 
 
 Witness, Charles Lord Tenterden, (&c.) 
 
 No. 36. (a) 
 
 (As in preceding precedent to * ;) and also his term, then, Theiike.on 
 and yet to come, of and in other dwelling-houses * ^ 
 
 (8cc.) with the appurtenances, which E. F. on, (&,c.) had de- 
 mised 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 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 thereof, until the 
 said C. D. afterwards, to wit, on, (&c.) with force, and arms, 
 (&c.) entered into the said several tenements with the ap- 
 purtenances, which the said A. B. and E. F. had respectively 
 demised to the said John Doe, in manner, and for the several
 
 414 APPENDIX. 
 
 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 without 
 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 appurtenances : and in what manner, 
 &c. (as in preceding precedent to the end.) 
 
 No. 37. 
 
 The like, William the Fourth, (&c.) to the Sheriff of 
 
 judge has greeting : Whereas at the assizes holden at in and for 
 
 certified the county of on the day of last, 
 
 under st3.t 
 
 i Wm.iv. before Sir Nicholas Conyngham Tindal, Knt., L. C. J., (&c.) 
 c - 70 - a cause came on to be tried, in which John Doe was the 
 plaintiff, and C. D. the defendant, and in which cause the 
 said John Doe sought to recover against the said C. D. his 
 term, (as in precedent No. 36, from J to K?*.) And whereas 
 at the trial of the said cause, the jury found a verdict for the 
 said John Doe, and the said Sir Nicholas Conyngham Tindal 
 hath duly certified on the back of the said record in the said 
 action, according to the form of the statute in that case made 
 and provided, his opinion that a writ of possession ought to 
 issue immediately : therefore, &c. (As in precedent No. 36 
 to the end.) 
 
 No. 38. 
 
 The like, (As in No, 36, to f.) We also command you, that of the 
 facias for goods and chattels of the said C. D. in your bailiwick, you 
 costs, by cause to be made . which the said J. D. lately in our 
 
 original in . * 
 
 K. B. said Court before us, at Westminster, aforesaid, recovered 
 against the said C. D. for his damages, which he had sus- 
 tained, as well on occasion of the trespass and ejectment 
 aforesaid, as for his costs and charges by him, about his suit, 
 in that behalf expended ; whereof the said C. D. is convicted, 
 as appears to us of record : and have you the monies before 
 us, on the return day aforesaid, wheresoever, (&c.) to be ren- 
 dered to the said John Doe, for his damages aforesaid, 
 and have there this writ. Witness, Charles Lord Tenterden.
 
 APPENDIX. 415 
 
 No. 39. 
 
 (As in No. 36. to t-) We also command you, that you take The like, 
 the said C. D. if he shall be found in your bailiwick, and him ^adfatitfa- 
 safely keep, so that you may have his body before us, on the c ^ ntium 
 return day aforesaid, wheresoever, (&c.) to satisfy the said by original 
 J. D. . which in our said Court before us, at West- inK ' B ' 
 minster aforesaid, were adjudged to the said J. D., for his 
 damages, which, &c. (as in preceding precedent to the end.) 
 
 No. 40. 
 (Copy the last precedent to the end, omitting the words The like, 
 
 ,. ._ ,. .,,. x ,, and also for 
 
 ' and have there this writ, and then as follows :) and also 
 
 . which in our Court of Parliament were adjudged to e " or ' onaB 
 
 J . & affirmance 
 
 the said J. D. according to the form of the statute in such j n the 
 case made and provided, for his damages, costs, and charges, L r ^ ( 
 which he had sustained and expended by reason of the delay 
 of execution of the judgment aforesaid, on pretext of prose- 
 cuting 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 Parliament into our said Court before us, likewise appear to 
 us of record ; and have there this writ. Witness, (&c.) 
 
 No. 41. 
 
 (As in No. 36. to " whereof the said C. D. is convicted," Writ of re- 
 (&c.) and then as follows :) and whereas we afterwards, to st 
 wit, in - terra aforesaid, by our writ, commanded you that 
 without delay you should cause the said J. D. to have pos- 
 session of his said term, then to come of. and in the tenements 
 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 irre- 
 gularly obtained, and that our said writ thereupon issued 
 improvidently and unjustly; therefore we command you,thnt 
 if possession of the tenements aforesaid, with the appurte-
 
 416 APPENDIX. 
 
 nances, hath by virtue of our said writ, been given or de- 
 livered 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 judgment aforesaid hath been set aside by our said Court, 
 he the said G. H. being landlord and owner of the tenements 
 aforesaid, with the appurtenances ; 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. 
 Sdrefadas (As in No. 36. to this mark K?% and then as follows :) and 
 
 plaintiff a ^ so ^" * r tne damages which the said John Doe 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 expended ; whereof the said C. D. is convicted, 
 as appears to us of record : And now, on the behalf of the 
 said J. D. in our said Court before 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 pro- 
 per remedy in this behalf: and we being willing that what is 
 just in this behalf should be done, command you, that by 
 honest and lawful men of your bailiwick, you make known 
 to the said C. D. (if against the casual ejector " to the said 
 Richard Roe, and also to and the tenants in pos- 
 session of the premises aforesaid,") that he (or they) be before 
 
 us, on wheresoever, (&c.) to show if he has or knows of 
 
 anything 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, Charles Lord Tenterden, (&c.)
 
 APPENDIX. 417 
 
 No. 43. 
 
 Doe on the demise of A. B. } Upon reading the affidavit of Rule for 
 
 J 
 
 f.Roe ...... JL. M. (&c.) it is ordered, that 
 
 the lessor of the plaintiff upon notice, (8cc.) show cause, why ings, till a 
 further proceedings in this action should not be stayed, until ^e appoint- 
 a sufficient guardian be appointed for the lessor of the ed for an 
 plaintiff, who will undertake to pay to the defendant such or to an- 
 costs as may happen to be adjudged to him ; and that in the swerco8ts - 
 mean time further proceedings be stayed. Upon the motion 
 of Mr. - 
 
 By the Court. 
 
 No. 44. 
 
 Doe on the demise of A. B. 7 Upon reading the affidavit ofxheiike, 
 v. Roe ..... 5 L. M. and another, it is ordered till security 
 
 t)p 2T i v G n fo r 
 
 that the lessor of the plaintiff, upon notice, (&c.) show cause, costs. 
 why further proceedings in this action should not be stayed, 
 until * sufficient security be given to answer 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 fur- 
 ther proceedings be stayed. Upon (&c.) 
 
 No. 45. 
 
 (As in No. 44, to *) the costs taxed in a former action The like, 
 brought in the Court of King's Bench, on the demise of the " ' 
 
 , e 
 
 lessor of the plaintiff, for the same premises, are paid ; and in costs are 
 themean time and until this Court shall otherwise order, that former a*- 
 all further proceedings be stayed. Upon (&c.) tioninK.B. 
 
 No. 46. 
 
 Upon reading the affidavit of G. H. it is ordered, that the The like, 
 lessor of the plaintiff upon notice (&c.) shall show cause, (&c.) f^ t men e 
 why, upon the defendant's bringing into this Court the prin- money, &c. 
 cipal money and interest due to the lessor of the plaintiff upon 
 his mortgage, and also such costs as have been expended in 
 any suit or suits at law or equity upon such mortgage, his 
 costs in this cause to be ascertained, computed and taxed by 
 one of the prothonotarics, the money so brought into this 
 
 E E
 
 418 APPENDIX. 
 
 Court should not be deemed and taken to be in full satisfac- 
 tion and discharge of such mortgage ; and upon payment 
 thereof to the lessor of the plaintiff, why all proceedings in this 
 action should not be stayed ; and why the mortgaged pre- 
 mises, and the lessor of the plaintiff's estate and interest 
 therein, should not be assigned and conveyed, at the cost and 
 charges of the defendants, to such persons as shey shall 
 appoint : and why all deeds, evidences and writings, in the 
 custody of the lessor of the plaintiff, relating to the title of such 
 mortgaged premises, should not be delivered up to the defend- 
 ants, or to such person or persons as they shall for that purpose 
 nominate and appoint. 
 
 By the Court. 
 
 No. 47. 
 The like, Doe on the demise of A. B. * Upon reading the affidavit of 
 
 of SJuS* v ' Roe * the defendant il; is ordered, 
 
 in K. B. upon the said defendants forthwith bringing into Court the 
 whole rent due and in arrear, and such sum to answer the costs 
 as the master shall direct, that further proceedings in this 
 cause be stayed. And it is referred to the master to compute 
 the said arrears of rent, and to tax the said costs; and upon the 
 said defendant's paying the said lessor of the plaintiff what 
 the said master shall find due and allow for the said rent and 
 costs, that all further proceedings therein as to the non-pay- 
 ment of the said rent, be stayed. But it is further ordered, if 
 the said lessor of the plaintiff has any other title to the pre- 
 mises in question, than for the non-payment of the said rent, 
 
 he is at liberty to proceed. Upon the motion of Mr. . 
 
 By the Court.
 
 INDEX. 
 
 A. 
 
 ABATEMENT, 
 
 mode of pleading in, 271. 
 
 jurisdiction of another court may be pleaded in, 270. 
 
 ancient demesne, good plea in, 272. 
 
 not created, by death of lessor of plaintiff, 320. 
 
 defendant, after assizes began, 332. 
 plaintiff, in ancient practice, 203. 
 ABATOR, not within stat. 32 Hen. Vm. c. 33. 42. 
 ACCORD, formerly good plea in ejectment, 270 (c) 
 ACTIONS, 
 
 real, when first disused, 10. 
 
 statute of fines only includes, 94. 
 consolidation of, 264. 361. 
 
 ADMINISTATOR. Vide Personal Representative. 
 ADMINISTRATION, Letters of, when evidence, 289. 300. 
 ADMITTANCE, to Copyholds, 
 
 surrenderee cannot bring ejectment before, 64. 
 
 cannot devise before, 65. 
 heir may bring ejectment before 63. 286. 
 
 except against lord, 63. 286. 
 title relates to time of surrender after, 64. 
 copyholds cannot be forfeited before, 308. 
 manner of proving, 287, 
 to chambers, not similar to, 64 (g) 
 ADVOWSON, ejectment will not lie for an, 18. 
 AFFIDAVIT, 
 
 to stay proceedings uncie 4 Geo. II. c 28. 172. 
 7 Geo. II. c. 20. 362. 
 for leave to plead ancient demesne, 272. 
 for motion for trial at bar, 324. 
 in ancient practice, of sealing lease, 201. 
 of service of declaration, 
 
 must be annexed to declaration, 243. 
 
 E E 2
 
 420 INDEX. 
 
 AFFIDAVIT, continued. 
 of service of declaration, 
 when to be made, 243. 
 how to be entitled, 243. 
 by and before whom to be made, 243. 
 facts to be stated in, 244. 
 
 when action founded on 1 Geo. IV. c. 87. 246, 367. 
 on 1 Win . I V. c. 70. 247. 376. 
 must be positive, and why, 244. 
 when more than one necessary, 245. 
 defective, how remedied, 246. 
 AFTER-MATH, 12. 
 AGENT, 
 
 may give notice to quit, 126. 
 authority to, when to be given, 126, (b) 
 AGREEMENT, 
 
 void, when implied tenancy created by, 110. 
 for lease, proviso for re-entry in, 188. 
 
 what words will create, 113, &c. 
 formerly equivalent to lease, 33. 
 for increase of rent does not alter tenancy, 144. 
 ALDER CARR, 24. 
 
 ALTERNATIVE Notice. Fide Notice to quit. 
 AMENDMENT of declaration, 224. 
 
 courts liberal in permitting, 226. 
 costs, how payable in respect of, 226. 
 ANCIENT Demesne, plea of, 272. 
 ANCESTOR, 
 
 dying under disability to enter, 58. 
 
 possessed, evidence of seisin, 281. 
 descent from common, how proved, 282. 
 APPEARANCE, 
 
 how regulated by common law, 254. 
 
 statute, 255. 
 
 who may appear as landlords, 257, &c. 
 of what term to be entered, 268. 
 how to be made, 265, &c. 
 
 under 1 Wm. IV. c. 70. 249. 
 1 Geo. IV. c. 87. 369. 
 tune allowed for, 248, &c. 
 cannot be entered by landlord for tenant, 266. 
 
 by parson for right to perform service, 261. 
 if trick to put off trial, 261. 
 when permitted by wife alone, 261. 
 by landlord, motion for, when to be made, 267. 
 power once assumed by king's bench respecting, 260. 
 how lessor to proceed after, 269. 
 ARTICLES of church of England, 
 
 when proof of subscription to, necessary, 303. 
 ASSIGNEE, 
 
 of a bankmpt, may maintain ejectment, 67. 
 evidence in ejectment by, 305.
 
 INDEX. 421 
 
 ASSIGNEE, continued. 
 of a bankrupt, 
 
 assignment to, not breach of covenant not to assign, 160. 
 
 180. 191. 
 of an insolvent debtor, 
 
 may maintain ejectment, 67. 
 evidence in ejectment by, 306. 
 by estoppel, not witbin 32 Henry VIII. c. 34. 76. 
 of mortgagee, may maintain ejectment, 61. 
 
 when exempted from giving notice to quit, 109. 
 may defend as landlord, 260. 
 evidence in ejectment by, 307. 
 of reversion, may maintain ejectment, in what cases, 72. 189. 
 
 evidence in ejectment by, 318. 
 ASSIGNMENTS of Lease, when presumed, 318. 
 ATTACHMENT, 
 
 granted, on breach of consent rule, 264. 334. 
 for disturbing sheriff in execution, 343. 
 how in the case of a peer, 338. 
 not granted, on consent rule, till signed by lessor, 263. 272. 
 
 upon stat. 7 Geo. II. c. 20. 366. 
 ATTESTATION OF WITNESSES, 
 
 to devise of freeholds, what sufficient, 290. 
 how to be made, 291. 
 form of, 294. 
 by mark sufficient, 293. 
 ATTORNEY, 
 
 must not be lessee in ejectment, 200, (c) 
 forms in ancient practice, executed by, 201. 
 warrant of to confess judgment, when lease forfeited by, 180. 
 ATTORNMENT to stranger destroys tenancy, 124. 
 AWARD, ejectment will lie on, 91. 
 
 B 
 
 BAIL, common, 
 
 must be filed, in what cases, 250. 
 to file, when part of consent rule, 262. 
 time of filing, 250. 
 in error, 
 
 notice of, unnecessary, 349. 
 who may be, 349. 
 sum required of, 350. 
 when chargeable with mesne profits, 351. 
 in action for mesne profits, 381. 
 BAILIFF, service of declaration upon, not good, 238. 
 BANKRUPT, assignee of. Vide Assignee of Bankrupt. 
 BANKRUPTCY, 
 
 proviso in lease to re-enter on, good, 159. 
 and sale, breach of covenant to occupy, 181. 
 
 no breach of covenant not to assign, 180.
 
 INDEX. 
 
 BANKRUPTCY continued, 
 
 no plea to action for mesne profits, 387. 
 
 BARGAINEE OF REVERSION, within 32Hen.,VIII. c, 34. 76. 
 BEAST-GATE, 24. 
 
 BILL OF PEACE, when granted in ejectments, 352. 
 BIRTHS, how proved, 283, 284. 
 BIS PETITUM, no objection in ejectment, 25. 
 BODY POLITIC Vide Corporation. 
 BOG, 25. 
 
 BOILARY OF SALT, 19. 
 BREACHES, particulars of, 
 
 lessor, how and when compelled to give, 353. 
 
 evidence confined to breaches contained in, 317. 
 
 rent as stated in, need not be proved, 317. 
 
 BUILDING by encroachment, when to be mentioned in demise, 30. 
 BURGAGE, 26. 
 
 C. 
 
 CAPIAS AD SATISFACIENDUM, writ of, 
 when lessor entitled to, for costs, 335, &o. 
 when to be sued out by defendant for costs, 337. 
 CASUAL EJECTOR, 
 in ancient practice, 
 
 when first used, and why, 13. 
 suit proceeds in name of, 201. 
 cannot confess judgment, 204. 
 in modern practice, 
 
 declaration against, how entitled, 207. 
 under stat. 1 Wm. IV. c. 70., 207. 
 judgment against, 
 
 motion for, for want of appearance, 
 
 when absolute in first instance, 235. 
 on what founded, 243. 
 
 not to be moved in court in common cases, 247. 
 at what time to be made, 248, 249. 
 on 4 Geo. II. c. 28. 172. 
 on nonsuit for not confessing, 323. 
 is not within stat. 4 Geo. II. c. 28. s. 2. 170. 
 rule for, when and how drawn up, 249. 
 when common bail necessary before, 250. 
 how and when to be signed, 252. 262. 267. 322. 
 in what cases set aside, and how, 252. 
 how entered, when some of several defendants confess, 323. 
 not equivalent to trial under 4 Geo. II, c. 28. 170. 
 CATTLE-GATES, 24. 
 
 CERTIORARI, writ of, ejectment may be removed by, 203. 
 CESTUI QUE TRUST, 
 
 lease by, will not bar trustee from recovering in ejectmeat, 88. 
 
 when legal estate vested in, 82, &c. 
 
 when possession of not adverse to trustees, 50.
 
 INDEX. 
 
 CESTUI QUE TRUST, continued, 
 when demise to be laid by, 211, 
 CESTUI QUE USE, within 32 Hen. VIII. c. 34. 76. 
 
 entry by will avoid fine, 100. 
 CHAMBER, 27. 
 CHAPEL, 
 
 ejectment will he for, 18. 
 how to be described, 18. 
 service of declaration for, 238. 
 CHURCH, 19. 
 
 CHURCHWARDENS, service of declaration upon, 237. 
 may maintain ejectment, 79. 
 one cannot, 80. 
 
 CLERK OF THE RULES, ejectment book how to be kept by, 249. 
 CLOSE, ejectment will lie for a, when, 27. 
 COAL MINES in Durham, how described in demise, 80. 
 CO-DEFENDANT, landlord maybe with tenant, 255. 
 CODICIL, signing of, not signing of will, 292. 
 COMMON BAIL. Vide Bail. 
 COMMON, Tenants in. Vide Tenant. 
 COMMON, 
 
 for what kinds of, ejectment will lie, 19. 
 encroachment on, belongs to whom, 51. 
 of pasture generally, good after verdict, 330. 
 COMPETENCY OF WITNESSES, 279, 295. 
 CONDITION, 
 
 what words will create, 188, 189. 
 how dispensed with, 190. 
 in leases for lives and years, difference of, 196. 
 once gone, gone for ever, 190. 
 dispensation of part, is of whole, 190. 
 breach of. Vide Proviso. 
 CONFESSION OF LEASE, &c. 262. 
 CONSENT RULE, 
 when invented, 16. 
 form and terms of, 262. 
 
 is evidence of defendant's possession, 276. 390. 
 when non-suit for want of lease, &c. prevented by, 263. 
 how drawn up in case of joint-tenants, &c. 263. 
 lessor of plaintiff must join in, 263. 
 attachment lies for breach of, 264. 334. 
 when to be produced at trial, 276. 321. 
 CONSOLIDATION RULE, 264. 
 CONTEMPT OF COURT, 
 
 misconduct on delivery of declaration is, 206, (b.) 
 assigning death of plaintiff for error is, 204. 
 release of plaintiff to tenant is, 204. 
 CONTINUAL CLAIM, what is, and how made, 101. 
 CONUSEE, of statute Merchant or Staple, 
 may maintain ejectment, 69. 
 evidence by, 301. 
 CONUSOR of fine. 
 
 must have interest in possession, 98.
 
 424 INDEX. 
 
 COPYHOLDER, 
 
 may maintain ejectment, 63. 
 cannot forfeit lands before admittance, 308. 
 evidence in ejectment by, 309. 
 devisee of, -\ 
 
 surrenderee of, > Vide Copyholds, 
 heir of, J 
 
 lessee of, may maintain ejectment, 65. 
 evidence in ejectment by, 309. 
 COPYHOLDS, 
 
 not affected by descents cast, 42, 
 within stat. 32 Hen. VIII. c. 34. 77. 
 not within stat. of uses, 88. 
 
 stat. 29. Car. II. c. 3. 71. 
 cannot be general occupant of, 50. 
 enfranchisement of, may be presumed, 309. 
 what sufficient will, to pass, 299. 
 forfeiture of, cannot be before admittance, 308. 
 who may take advantage of, 61. 
 q. if 21 Jac. I. c. 16. operates on, 62. 
 ejectment for, may be maintained, 
 
 before admittance, by grantee, 64. 
 by heir, 66. 
 except against lord, 64. 
 after admittance by devisee, 65. 
 
 by surrenderee, 65, 213. 
 evidence in ejectments for, 309. 
 ancient demesne, no plea in ejectment for, 272. 
 receipt of customary rent for, does not create tenancy, 124. 
 CORPORATIONS, ' 
 
 cannot make a discontinuance, 41. 
 are within 32 Hen. VIII. c. 33. 43. 
 may maintain ejectment, 78. 
 how notice to quit to be given to, 131. 
 officers of, may give notices to quit, 129. 
 how demise to be laid by, 215. 
 how name of to be stated in demise, 217. 
 CORN MILLS, 27. 
 COSTS payable, 
 
 how under 4 Geo. II. c. 28, 167. 
 1 Geo. IV c. 87. 339. 
 by infant's lessor, when, 338. 
 by feme, after baron co-defendant's death, 338. 
 when to one of several defendants acquitted, 337. 
 by such defendants as refuse to confess, 323. 
 by lessor, to which defendant he pleases, 339. 
 not payable, 
 
 by lessor, if he join not in consent rule, 339. 
 by lessor suing in forma pauperis, though dispaupered, 339. 
 by executor of lessor in any case, 335. 
 to executor of lessor on consent rule, when, 335. 
 how to be recovered by lessor, 
 
 on judgment for want of appearance, 334, 335.
 
 INDEX. 425 
 
 COSTS, continued, 
 
 how to be recovered by lessor, 
 
 on non-suit for not confessing, 334. 
 when some of several defendants confess, 335. 
 on verdict against tenant, 335. 
 landlord, 336. 
 
 feme sole married before execution, 336. 
 rule respecting, on amendments, 226. 
 each defendant liable for the whole, 335. 
 general remedy for recovery of, 336, 391. 
 what recoverable in action for mesne profits, 385. 391. 
 defendant when entitled to, by 8 & 9 W. III. c. 11. 337. 
 how to be recovered, by defendant, 
 
 in the king's bench, 336. 
 in the common pleas, 336. 
 when plaintiff's lessor is a peer, 338. 
 security granted for, in what cases, 353, &c. 
 proceedings stayed till payment of, when, 355, &c. 
 if not paid, court will not non-pros second ejectment, 360. 
 in action for mesne profits, 
 
 when security for granted, 382. 
 certificate for necessary, if damages under 40s., 392. 
 COTTAGE, 26. 
 COUNTERPART, of lease, 
 
 evidence, without notice to produce, 311. 
 COURTS OF EQUITY, 
 
 ousters of leaseholders formerly redressed by, 8. 
 application to, under 4 Geo. II. c. 28. 167171. 
 interference of, to prevent repeated ejectments, 352. 
 mesne profits, before entry to avoid fine, recoverable in, 39 
 COURT-ROLLS, 
 
 when evidence, 298. 
 court will grant inspection of, 298. 
 COVENANT, writ of, 2. 
 
 action of, will waive a forfeiture, when, 174. 
 COVENANTS, 
 
 what run with the land, 73, &c. 
 are collateral, 75. ; 
 are good, 158. 
 bach of, 
 
 who may take advantage of, 190. 
 when tenancy determined by, 158. 
 who may bring ejectment on, 72. 189. 
 actual entry not necessary on, 93. 158. 
 landlord not bound to notice, 50. 
 what will be a waiver of, 192, &c. 
 suspension of, 194. 
 
 waiver of, not waiver of subsequent breach, 193. 
 continuing breach, 193. 
 evidence in ejectment on, 
 
 what amounts to, not to assign, 177, 178. 181. 318. 
 let, 179. 191. 318.
 
 426 INDEX, . 
 
 COVENANTS, continued, 
 
 breach of, what amounts to, not to, 
 
 put away, 177. 
 part with, 178. 
 commit waste, 182. 
 exercise a trade, 182. 
 to actually occupy, 181. 
 insure, 183, 195. 
 deliver up trees, 184, 
 give notice of felling timber, 186. 
 repair generally, 184. 
 
 after notice, 184, 194. 
 how affected by statutory enactments, 186. 
 and conditions difference between, 197. 
 in agreement for lease, what words create, 189. 
 what affected by hereafter in proviso, 185. 
 CREDITORS may witness wills, 295. 
 CROPS, growing, 
 
 security not to take away, when to be given, 322. 
 pass by writ of possession, when, 347. 
 
 CUSTOMARY ESTATES not affected by descents cast, 42. 
 CUSTOMS, 
 
 to give three or twelve months' notice to quit, good, 140. 
 must be strictly proved, 141. 
 manner of proving, 287. 
 
 P. 
 
 DAMAGES, 
 
 in ejectment, 
 
 action may proceed for, though term expire, 228. 
 
 lessor die, 320. 
 are nominal only, 320. 
 
 formerly comprehended real injury sustained, 379. 
 in action for mesne profits, 391. 
 DEATH jg* 
 
 of lessor, no abatement of suit/48p &>O 
 
 q. if scire facias necessary after, 346. 
 security given for costs upon, 354. 
 costs not payable to defendant upon, 335. 
 of defendant, not cause of error, when, 333. 
 suggestion of, how entitled, 333. 
 q. if scire facias necessary upon, 346. 
 of plaintiff, no abatement of suit, 203. 
 
 to assign for error, is a contempt, 204. 
 of person, how proved, 282, &c. 
 presumption of, when arises, 285. 
 DECLARATION, 
 
 how framed in ancient practice, 200. 
 modern practice, 15, 
 action for mesne profits, 384.
 
 INDEX. 427 
 
 DECLARATION, continued, 
 how entitled, 207. 
 
 under 1 Wm. IV. c. 70. 208. 
 may be by bill, or by original, 207. 
 service of, suit commenced by, 206. 
 
 resembles service of writ, 234. 
 
 should be personal, 235. 
 
 must be before essoign-day, 232. 
 
 should be on party actually in possession, 235. 
 
 how made in common cases, 
 
 upon tenants in possession, 234, 235. 
 wife of tenant, 236. 
 child or servant of tenant, 237. 
 when tenant absconds, 239, &c. 
 in ejectment for a chapel, 238. 
 
 poorhouse, 237. 
 
 when some of the houses are un tenanted, 238. 
 upon one tenant in possession, good against all, 
 
 when, 236. 
 
 wife of one tenant not good against all, 237. 
 not good, upon person having keys, 238. 
 
 receiver under Court of Chancery, 238. 
 irregular, when made good, 236, &c. 
 court will not antedate, 242. 
 tenant must give notice of, when, 256. 
 may be good for part, and bad for part, 242. 
 in action for mesne profits, 384. 
 amendment of, 
 
 semble, may be before appearance, 225. 
 may be in demise, term, &c. 226, &c. 
 names of parties, 229. 
 description of premises, 229. 
 not permitted to real injury of defendant, 227. 
 DECLARATIONS 
 
 of deceased relations, 
 
 when evidence, 283. 
 when not evidence, 284. 
 tenants, when evidence, 280. 
 neighbours, not evidence, 284, 
 not evidence, if parties living, 284, 285. 
 DEED, demise by, deed need not be proved, 217. 
 
 now unnecessary, 216. 
 DEFENDANT, 
 
 who may be admitted, 256, &c. 
 
 death of, no abatement of suit when, 332. 
 
 cause of error, when, 333. 
 evidence in ejectment, on the part of, 319. 
 in action for mesne profits, who should be, 388. 
 when entitled to make the first address to the jury, 288. 301. 
 DEMISE, in declaration, 
 
 mast be consistent with lessor's title, 209. 277. 
 court will strike out, when, 211.
 
 428 INDEX. 
 
 DEMISE, continued. 
 
 declaration, how entitled with respect to, 208. 
 
 on a joint, lessors must have joint interest, 209. 
 
 who may make a joint or several, 209. 
 
 when several distinct necessary, 211, 
 
 under a, of whole, undivided moiety may he recovered, 21 1. 
 
 must he after lessor's title accrues, 212. 
 
 should be soon after lessor's title accrues, and why, 212. 
 
 not necessary to state premises to he in a parish in, 218. 
 
 if parish is stated in, must be proved as laid, 219. 
 
 premises, how described in, when more than one parish, 220. 
 
 need not state exact quantities to he recovered, 221. 
 
 time of laying, by heir, 212. 
 
 posthumous son, 213. 
 surrenderee of copyholds, 213. 
 assignees of bankrupt, 213. 
 under stat. 4 Geo. II. c. 28. 213. 
 when fine levied, 214. 
 against tenants at will, 214. 
 when commencement of tenancy unknown, 214. 
 how to be laid, by corporations, 215. 
 
 overseers of a parish, 79. 
 in ejectment for tithes, 217. 
 by masters of colleges, &c. 218. 
 
 infants, 218. 
 
 period of, caution respecting, 215. 
 is transitory, 203. 
 
 may be amended after its expiration, 227. 
 intendment is in favour of, after verdict, 328. 
 DESCENTS CAST, 
 definition of, 41. 
 happen when, 41. 
 doctrine of, not applicable to ejectments, and why, 41, (e) 
 
 summary of, 45. 
 
 what persons are not affected by, 42. 
 right of entry, why tolled by, 41. 
 
 when tolled by 42, &c. 
 need not be pleaded in ejectment, 270. 
 DESCRIPTION 
 
 of premises, what certainty required in, 23. 
 of parish of demised premises, material, 219. 
 DEVISEES, 
 
 not affected by descents cast, 43. 
 of copyholds, cannot devise before admittance, 65. 
 refusal to pay rent to, when no disclaimer of tenancy, 125. 
 may maintain ejectment, 71. 
 
 defend ejectment, 259. 
 evidence by, of freeholds, 288, &c. 
 copyholds, 298. 
 terms for years, 300. 
 
 cannot bring ejectment for rent due to them as executors, 
 176.
 
 INDEX. 429 
 
 DEVISED 
 
 to trustees, legal estate vested in them by, when, 82, &c. 
 of a term, no breach of covenant not to assign, 177. 
 to witnesses to a will, when void, 295. 
 
 when not void, 296. 
 
 of freehold interest, how to be made, 290. 
 DISCLAIMER of Tenancy, 125. 
 DISCONTINUANCE, 
 definition of, 35. 
 happens in what cases, 35. 
 different modes of making, 36. 
 when caused by levying a fine, 36, &c. 
 law respecting, how altered by 32 Hen. VHI. c. 28. 38. 
 
 11 Hen. VII. c. 20. 39. 
 cannot be effected by a corporation, 41. 
 DISSEISIN at Election, 41, (c) 
 DISSEISOR, 
 
 within stat. 32 Hen. VIII. c. 33. 43. 
 donee or feoffee of, not within stat. 32 Hen. VHE. c. 33. 43. 
 DISTRESS for rent, 
 
 when waiver of notice to quit, 154. 155. 174. 
 insufficient, 
 
 right of re-entry at common law waived by, 174. 
 
 under stat. 4 Geo. H. c. 28, not waived 
 
 by, 174. 
 
 evidence of, what necessary, 317. 
 DOUBLE RENT, action for, 154*. 
 DOUBLE VALUE, action for 132. 153. 
 DOWER, ejectment will not lie for, before assignment, 66. 
 
 E. 
 
 ECCLESIASTICAL PERSONS, 
 
 not within stat. 21 Jac. I. c, 16. 46. 
 
 demise by, how laid, 217. 
 EJECTIONS FIRM^E, writ of, 7. 
 EJECTMENT, 
 
 definition of, 1. 
 
 formerly only action of trespass, 1. 
 
 when term first recovered in, 9. 
 
 how and when titles first tried in, 10. 
 
 confined to possessory titles, and why, 11. 
 
 will lie, for what things, 18, &c. 
 
 of bringing a second, 311. 
 EJECTOR, CASUAL. Vide Casual Ejector. 
 ELEGIT, 
 
 tenant by, may maintain ejectment, when, 70. 109. 
 evidence in ejectment by, 301. 
 
 judgment debtor in, 
 
 estopped from setting up tenant's interest, 70.
 
 430 INDEX. 
 
 ELEGIT, continued. 
 judgment debtor in, 
 
 must give notice to quit, when, 70. 
 ENTRIES, 
 
 on court rolls, when evidence, 298. 
 in a bible, when evidence, 286. 
 in parsons' books, when evidence, 303. 
 ENTRY, ACTUAL, 
 
 formerly always made, and why, 11. 157. 
 is still necessary, 
 
 when fine with proclamations levied, and why, 93. 278. 
 when ancient practice is used, 200. 
 is not necessary, 
 
 if party levying fine has not a freehold interest, 97, &c. 
 
 when fine levied at common law, 95. 
 
 when all the proclamations not completed, 99. 
 
 when fine is once avoided, 102. 
 
 when fine is only accepted, 99. 
 
 in ejectment on the forfeiture of a lease, 158. 
 
 on fine by joint tenant, &c. without previous ouster, 
 
 98. 
 
 to avoid statute of limitations, but prudent, 102. 
 before fine levied, will not avoid subsequent fine, 95. 
 party making must have right to enter, 96. 
 time of making to avoid a fine, 97. 
 by whom to be made, 87. 99, 
 how to be made, 100. 
 
 ejectment must be brought within a year after, 102. 
 ENTRY, right of, must be in lessor, 33. 157. 
 
 proved at the trial, and how, 275. 313. 
 how taken away, 34. 
 is not devisable, 97. 
 must accrue before day of demise, 212. 
 of judgment Vide Judgment, 
 of plaintiff, how stated in declaration, 221. 
 confessed by consent rule, 262. 
 when pleadable puts darrien continuance, 274. 
 of one joint tenant, &c. entry of all, 100. 
 lease for life cannot be avoided without, 196. 
 
 years cannot be avoided without, when, 197. 
 of nonsuit for not confessing lease, &c. 263. 
 may be made pending error, when, 351. 
 upon demised lands, substantial time of, 146, &c. 
 when and how proved in action for mesne profits, 391 . 
 ERROR, 
 
 judgment quod defendens sit quietus is, 332. 
 death of defendant, is not, 332. 
 
 want of suggestion of, is, 332. 
 rule not to commit waste pending, 350. 
 bail in, 349. 
 
 action for mesne profits will lie pending, 381. 
 elegit for mesne profits may be sued out after, 393.
 
 INDEX. 
 
 431 
 
 ERROR, writ of, 
 
 will not lie, before verdict, 347. 
 
 against casual ejector, 347. 
 
 except in ancient practice, 347, (d) 
 if defendant do not confess, 348. 
 how brought by landlord, 348. 
 no stay of execution, until bail put in, 350. 
 
 ESCHEAT, Lord by, 
 
 not within 32 Hen. VIII. c. 34. 76. 
 may defend judgment, quaere, 260. 
 
 ESSOIGN-DAY, 
 
 declaration, must be served before, 232. 
 
 except under 1 Wm. IV. c. 70. 376. 
 receipt of, must be acknowledged before, 237. 
 ESTATE-TAIL, how discontinued, 35. 
 
 EVIDENCE, 
 
 on the part of the lessor, 
 general points of, 275. 
 by heirs, at common law, 281. 
 to copyhold lands, 286. 
 customary, 287. 
 devisees, of freeholds, 288, &c. 
 copyholds, 298. 
 terms for years, 300. 
 tenant by elegit, 301. 
 
 conusees of statutes merchant or staple, 301. 
 rectors or vicars, 302. 
 guardians, 305. 
 assignees of bankrupts, 305. 
 
 insolvent debtors, 306. 
 personal representatives, 306. 
 mortgagees, 306. 
 lords of manors, 307. 
 copyholders, 309. 
 
 lessees of, 309. 
 
 joint tenants, &c. against companions, 277. 
 landlords against tenants, 
 
 on the termination of leases, 310. 
 notices to quit, 312. 
 the forfeiture of leases, 316. 
 assignees of the reversion, 318. 
 on the part of the defendant, 319. 
 in actions for mesne profits, 
 
 when profits to be recovered, are antecedent to demise 391. 
 
 subsequent to demise, 389. 
 EXECUTION, 
 
 sheriff", may demand indemnity before, 342. 
 
 power of, to enforce 342. 
 stayed by consent rule, when, 263. 
 judge's order, when, 322. 
 is made at lessor's peril, 23. 34 1 .
 
 432 INDEX. 
 
 EXECUTION, continued. 
 how to be taken out, 
 
 on judgment for want of an appearance, 251. 
 after verdict against landlord, 340. 
 when some defendants die, 333. 
 when a sole defendant dies, 346. 
 on stat. 1 Wm. IV. c. 70. 340. 
 when defendant marries before execution, 346. 
 cannot be taken out pending error, 350. 
 not stayed by writ of error till bail put in, 350. 
 set aside if lessor's right cease before writ issued, 341. 
 landlord on error brought must move to stay, 348. 
 must only be for premises recovered, 341. 
 
 or courts will interfere, 341. 
 
 sometimes confined by rule to premises recovered, 342. 
 how to be made by sheriff, 342, 343. 
 instances of insufficient, 343, 344. 
 attachment granted for disturbing, 343. 
 when second granted, 344, &c. 
 when scire facias necessary before, 346. 
 executed, when judgments set aside after, 252. 267. 
 
 cannot apply under 4 Geo. II. c. 28. after, 167. 
 7 Geo. II. c. 20. after, 362. 
 
 for mesne profits, stayed until error determined, 38. 
 of will, under statute of frauds, 288, &c. 
 EXECUTION, writ of. 
 
 its nature, 340. 
 how drawn up, 341. 
 
 lessor may enter peaceably without, 339. 
 EXECUTOR. Vide Personal Representative. 
 EXTINGUISHMENT of estate, 189. 
 
 F. 
 
 FEME COVERT, 
 
 cannot constitute an attorney, 201. 
 
 devise to trustees, to suffer to receive rents, 83. 
 
 receipt of rent by, after separation from baron, 120. 
 
 service of declaration upon, 236. 
 
 may defend ejectment against baron, when, 261. 
 
 liable to costs, if baron co-defendant die, 338. 
 
 judgment against, not evidence against baron, 390. 
 
 statute of limitations runs not against, 45. 
 
 not affected by descents cast, 42. 
 
 baron, cannot discontinue lands of, 39. 
 
 must avoid fine within five years, 99. 
 FEOFFMENT, by tenant for years, 97. 
 FIERI FACIAS, writ of, 
 
 when lessor entitled to for costs, 336. 
 
 when sued out by defendant for costs, 337. 
 
 evidence, when lessor claims under, 302. 
 
 superseded by writ of possession, when, 347.
 
 INDEX. 433 
 
 FINE, 
 
 when entry necessary to avoid, 93, &c. 
 
 when not, 95. 98. 
 
 when avoided by entry, 96. 
 
 when discontinuance worked by, 36. 96. 
 
 by joint tenant, &c. no ouster of companion, 55. 
 
 tenant for life accepting, is a forfeiture, 99. 
 
 and non-claim, need not be pleaded, 270. 
 
 mesne profits before avoidance of, how recovered, 392. 
 FISHERY, 20. 
 FORFEITURE, 
 
 by copyholder. Vide Copyholds. 
 
 of lease. Vide Covenant. 
 FREE BENCH, 65. 
 FURZE and HEATH, 28. 
 
 G. 
 
 GAVELKIND, 56. 
 GLEBE, 
 
 parson cannot bring ejectment for, after sequestration, 81. 
 evidence in ejectment for, 304. 
 GORSE and FURZE, 28. 
 GUARDIANS, 
 
 in socage or testamentary, may bring ejectment, 66. 
 
 make actual entry for ward, 100. 
 evidence in ejectments by, 305. 
 
 H. 
 
 HABEAS CORPUS, ejectments removed from inferior courts by 
 
 203. 
 HABERE FACIAS POSSESSIONEM, writ of, 
 
 nature of, 340. 
 
 may issue on judge's certificate, when, 321. 
 
 how drawn up, 340, 341. 
 
 return of, should be made, 344. 
 
 when evidence in action for mesne profits, 389. 
 
 Vide Execution. 
 
 HABERE FACIAS SEISIN AM, writ of, 340. 
 HAY-GRASS, 21, 
 HEARSAY, when evidence, 283, 284. 
 HEIRS, 
 
 time allowed for entry of, by 21 Jac. I. c. 16. 58. 
 
 demise by, when to be laid, 212. 
 
 staying proceedings by, under 7Geo. II. c. 20. 361. 
 
 may defend ejectment, 259. 
 
 are competent witnesses in ejectment, 280. ,.- 
 
 may examine all the witnesses to a will, 297. 
 
 evidence by, at common law, 281. 
 
 F F
 
 434 INDE3C . 
 
 HEIRS, continued, 
 evidence by, 
 
 to copyholds,, 286. 
 
 customary, 287. 
 
 HERALD'S BOOKS, evidence of pedigree, 286. 
 HERBAGE, 21. 
 
 HEREDITAMENTS, corporeal, recoverable in ejectment, 1 8. 
 HIGH- WAY, 21. 
 HOP-YARD, 23. 
 HOUSE. Vide Messuage. 
 
 I. 
 
 IMPARLANCE, new declaration formerly delivered after, 225, 
 IMPOSSIBLE YEAR, 
 
 rejected in notice to quit, 135. 
 
 ouster in declaration, 223. 
 INDUCTION, how proved, 303. 
 INFANT, 
 
 may maintain ejectment, 67. 
 
 enter at any time to avoid fine, 99. 
 
 when bound by his attorney's acts, 120. 
 
 must give notice to quit, 126. 
 
 security for costs, when, 218. 354. 
 
 demise by, how laid, 218. 
 
 liable for costs, when, 338. 
 INFERIOR COURTS, 
 
 ancient practice necessary in, and why, 199. 
 
 ejectments, how removed from, 203. 
 
 when jurisdiction of not pleadable, 203. 
 
 how to proceed in, 202. 
 
 INJUNCTION against bringing ejectments, when granted, 352. 
 INSOLVENT DEBTOR, 
 
 assignee of, may maintain ejectment, 67. 
 evidence required by, 306. 
 
 not discharged from liability to mesne profits, 387. 
 INSURANCE against fire, 
 
 covenant for, runs with land, when, 74. 
 INSTITUTION, how proved, 303. 
 INTRUDER, not within 32 Hen. VIH. c. 33. 42. 
 IRELAND, 
 
 premises described by terms used in, 24. 
 
 security for costs on demise by resident in, 354. 
 ISSUE, 
 
 must agree with declaration, 273. 
 
 how made up, 273. 
 
 variance between and record, how to proceed, when, 323. 
 
 general, commonly left with consent, rule, 265, 269. 
 in action for mesne profits, 386.
 
 INDEX. 
 
 J. 
 
 JOINT-TENANTS, 
 
 may maintain ejectment against co-tenants, when, 54, 91. 
 when affected by 21 Jac. I. c. 16, 54. 
 demise hy, how laid, 209. 
 entry of one is entry of all, 100. 
 possession of one is possession of all, 54, 98. 
 what acts of, are ousters of companions, 54. 
 fine by one no ouster of others, 98. 
 notice to quit, by one will bind all, 126 (6), 128. 
 to one, will bind all, when, 131. 
 by agent of, how to be given, 126 (b) 
 service of declaration upon, 236. 
 special consent rule, when granted to, 263. 
 evidence in ejectments by, 277. 
 
 may bring action against co-tenants for mesne profits, 382. 
 JUDGMENT, in ejectment, 
 is not final, 327, 351. 
 possession only is recovered by, 327. 351. 
 must be entered according to the verdict, 328. 
 intendment after, in favour of claimant, 328, &c. 
 how entered, relictd verificatione, 273. 
 
 when defendant will not confess, 322. 
 whole premises are recovered, 331. 
 part of whole premises are recovered, 33 1 . 
 some parcels only, 301. 
 sole defendant dies, 332. 
 some of several die, 332. 
 against feme, when baron dies, 334. 
 is not evidence in a second ejectment, 215. 
 when evidence in action for mesne profits, 212. 388, 389. 
 when entered for want of plea, 269. 
 formerly entered quod defendens capiatur, 331 (c). 
 casual ejector cannot confess, 204. 
 proceedings to, in ancient practice, 200. 202. 
 arrest of, motion for, 326. 
 against casual ejector. Vide Casual Ejector. 
 JURISDICTION, 
 
 may be pleaded to in ejectment, 270. 
 of inferior court, cannot be pleaded when, 203. 
 rule to plead to, when granted, 270. 
 how drawn up, 271. 
 
 K. 
 
 KING, 
 
 may maintain ejectment semble, 78. 
 
 how under 8 Hen. VI. c. 16, and 18 Hen. VI. c, 6. 79. 
 is not within 21 Jac. I. c. 16. 46. 
 
 F P 2
 
 436 INDEX. 
 
 KING, continued. 
 
 when concluded by 9 Geo. III. c. 16. 46 (a). 
 KITCHEN, 27. 
 KNEAVE of LAND, 24. 
 
 L. 
 
 LADY-DAY, notice to quit at generally, how construed, 136. 
 LAND, 
 
 how to be described in demise, 27. 
 
 piece of, ejectment will lie for, when, 27. 
 
 general occupation of, what is, 105. 
 LANDLORD, 
 
 jus disponendi in, 158. 
 
 tenant may dispute title of, when, 276. 
 
 by common law cannot be sole defendant, quare, 255, 257. 
 
 who may defend as, under 11 Geo. II. c. 19. 256, &c. 
 
 may defend in tenant's name, 261. 
 
 admitted to defend, after cognovit by tenant, 273. 
 
 how to appear as, 265. 
 
 how to proceed if improper person admitted to defend as, 260. 
 
 when defendant, judgment how signed, 263, 267. 
 
 error, how brought by, 348. 
 
 remedies for, under stat. 1 Geo. IV. c. 87. 367, &c, 
 1 Win. IV. c. 70. 376, &c. 
 
 evidence in ejectments by, 
 
 on termination of lease, 311. 
 notice to quit, 312. 
 forfeiture of lease, 316. 
 LATITAT, 251. 
 
 LAY IMPROPRIATORS, evidence by, for tithes, 304. 
 LEASE, 
 
 by cestui que trust, no bar to trustee, 88. 
 
 possession under treaty for, effect of, 121. 
 
 when tenancy created under a void, 110. 
 
 when entry necessary, upon a forfeiture, to avoid, 196. 
 
 cannot exist without a reversion, 177. 
 
 who may make a joint, 209. 
 
 determinable generally at third or sixth years, how construed, 137. 
 
 assignment of, when presumed, 318. 
 
 notice to produce, when necessary, 317. 
 
 forfeiture of. Vide Covenant. 
 
 agreement for, what words will create, 113, &c. 
 
 evidence by landlord in ejectment, on expiration of, 311. 
 
 forfeiture of, 316. 
 
 in ancient practice, actually executed, 11, 200. 
 
 in modern practice, feigned only, 15. 
 
 confessed by defendant, 262. 
 LICENSE, to work mines, 20. 
 
 if written required, parol insufficient, 191. 
 LIMITATIONS, statute of, 45. 
 
 who not within, 46, 62.
 
 INDEX. 
 
 437 
 
 LIMITATIONS, continued. 
 
 quaere, if lord of manor bound by, upon forfeiture by a copy- 
 holder, 62. 
 
 when join tenant, &c. affected by, 54. 
 
 extension of time in second section, how construed, 46. 55, &c. 
 
 does not operate between trustee and cestui que trust, 51. 
 against lord of manor, when, 52. 
 
 entry not necessary to avoid, 102. 
 
 operation of, will bar ejectment, 45. 77. 
 
 barred by payment of interest on mortgage, 51. 
 
 need not be pleaded in ejectment, 270. 
 
 must be pleaded in action for mesne profits, 386. 
 LIQUORICE, demise of lands producing, 138. 
 LODGINGS, notice to quit, how regulated, 140. 
 LUNATIC, 
 
 may maintain ejectment, 91. 
 
 committee of, cannot maintain ejectment, 91. 
 
 service of declaration upon, 241. 
 
 stat. 21 Jac. I.e. 16, does not run against, 45. 
 
 M. 
 
 MADDER, demise of lands producing, 138. 
 MAINTENANCE, 11, 174 (c). 
 MANOR, ejectment will lie for a, 29. 
 MANOR, Lord of a, 
 
 may maintain ejectment on a forfeiture, when, 61. 
 evidence by, on a forfeiture, 308. 
 
 on a seizure, pro defectu tenentis, 307. 
 in ejectment for mines, 308. 
 quare, if 21 Jac. I. c. 16, runs against a, 62. 
 queere, if entitled to defend ejectment, 260. 
 MARRIAGE, how proved, 283. 285. 
 MESNE PROFITS, action for, 
 when invented, 379. 
 nature and uses of, 380. 
 
 may be recovered in ejectment, when, 321, 371, 380. 
 may be waived, 
 
 for assumpsit for use and occupation, when, 380. 
 for debt on 4 Geo. II. c. 28. 381. 
 
 11 Geo. II. c. 19, quare,38l (b). 
 may be brought pending error, 381 . 
 is bailable at discretion, 381. 
 must be brought, by whom, 382. 
 
 against whom, 383. 
 declaration in, how framed, 384. 
 pleas in, what are good, 386. 
 money cannot be paid into court in, 388. 
 evidence in, 
 
 when profits antecedent to demise recovered, 391. 
 
 subsequent to demise, 388. 
 damages in, 
 
 have reference to time of defendant's occupation, 390.
 
 438 INDEX. 
 
 MESNE PROFITS, continued. 
 damages in, 
 
 not confined to rent of premises, 391. 
 may include costs of ejectment, 391. 
 profits before fine avoided, not recoverable as, 392. 
 costs in, 
 
 second ejectment stayed till paid, 359. 
 judge must certify, if under 40s., 392. 
 when unnecessary after error, 393. 
 law regarding in Scotland, 386 (a). 
 MESSUAGE, 
 
 ejeciment will lie for, 25. 
 
 part of, 27. 
 
 notice to quit, bow regulated, 139. 
 rent must be demanded at, when, 161. 
 MICHAELMAS, 
 
 notice to quit at generally, how construed, 136. 
 holding generally from, how construed, 145. 
 MILLS, 27. 
 MINES, 20. 30. 308. 
 MOIETY, undivided, 
 
 cannot be a disseissin of, 54. 
 recoverable on demise of whole, 211. 
 MOOR and MARSH, 28. 
 MORTGAGEES, 
 
 may maintain ejectment, 60. 
 
 without demanding possession, when, 108. 
 after notice to quit, when, 108. 
 may defend as landlords, 260. 
 
 unless not interested in suit, 260. 
 how protected by 4 Geo. II. c. 28. 167. 
 proceedings by, when stayed tinder 7 Geo. II. c. 20. 36 J, &c. 
 evidence in ejectments by, 306. 
 assignee of. Vide Assignee. 
 MORTGAGOR 
 
 not tenant to mortgagee, 60. 108. 
 
 competent witness for mortgaged lands, 280. 
 relation of to mortgagee after forfeiture, 60 (c). 
 fine levied by, inoperative, 98. 
 tenant of, need not give notice of ejectment by mortgagee, 256. 
 
 qutere, if liable for mesne profits, 384. 
 when tenant to mortgagee, 108, 109. 
 MOUNTAIN, 24. 
 
 N 
 
 NON-SUIT, 
 
 for not confessing lease, &c. 
 
 optional in ejectment by landlord, 321. 
 
 how to proceed on, 322. 
 
 error cannot be brought after, 348
 
 INDEX. 439 
 
 NONSUIT, continued, 
 
 for not confessing lease, &c. 
 
 costs, how recoverable on, 334. 
 
 when not recoverable on, 335. 
 lessor liable to, before signing of consent rule, 272. 
 NOTICE TO APPEAR, 
 
 to whom to be addressed, 229. 
 
 by whom to be subscribed, 233. 
 
 should specify term by name, 231. 
 
 time of appearance of tenant, how regulated by, 230. 
 
 may be amended, 233. 
 
 how framed in ancient practice, 13, 200. 
 
 in proceedings under stat. 1 Geo. IV. c. 87. 375. 
 quare, if necessary in inferior courts, 202. 
 NOTICE OF TRIAL, 
 
 same as in other actions, 274. 
 
 except under stat. 1 Win. IV. c. 70. 376. 
 proceedings stayed after, 360. , . 
 
 NOTICE TO QUIT, 
 
 origin and history of, 105, &c. 
 must be given, 
 
 in commoii tenancies from year to year, 106. 
 under implied tenancies from year to year, 107. 
 to personal representatives, when, 125. 
 is not necessary, 
 
 at expiration of lease, 105. 
 
 agreement for a lease, 112. 
 from mortgagee to mortgagor, 60. 108. 
 when tenant attorns to another, 124. 
 to under-tenants of mortgagor, when, 108. 384. 
 from assignee of mortgagee, when, 109. 
 time of giving, 106. 138. 142. 146. 
 time for expiration of, 
 
 in common tenancies, 138. 142. 
 in cases of lodgings, 140. 
 under implied tenancies, 142. 
 
 particular customs, or agreements, 140, 141. 
 when tenant enters at several times, 146. 
 irregularity as to, how waived, 275. 
 generally, at end of current year, good, 142. 
 
 when to be so framed, 142. 
 
 on a particular day, must be day tenancy began, 142. 
 by whom to be given, 126, &c. 
 to whom to be given, 130, &c. 
 how to be served, 131. 
 
 framed, 132, &c. 
 by parol, when good, 132. 
 
 not made good by parol consent, 155. 
 must be in writing, when, 132. 
 how to be addressed, 132.. 
 must not be alternative or ambiguous, 133. 
 
 what so deemed, 133, &c.
 
 440 INDEX. 
 
 NOTICE TO QUIT, continued. 
 
 must contain all things comprised in the demise, 136. 
 
 may be waived, and how, 149, &c. 
 
 may be given by tenant, 156. 
 
 implied tenancy, when rebutted by, 123. 
 
 service of, how to be proved, 312, &c. 
 
 when and how evidence of commencement of tenancy, 314, &c. 
 
 power of giving, necessarily incidental to tenancy from year to 
 
 year, 106. 
 
 evidence necessary in an ejectment on, 312, &c. 
 subscribing witness to, unnecessary, 133. 
 
 O. 
 
 OCCUPATION, permissive, 
 
 when tenancy created by, 121. 
 OCCUPANT, special, 71. 
 general, 50. 
 ORCHARD, 23, 
 OUSTER, 
 
 actual, what acts amount to, 54. 
 
 evidence of, when necessary, 54. 200. 263. 27& 
 consent rule substitute for, when, 263. 
 of plaintiff, how stated in declaration, 222, &c. 
 nonsuit for not confessing, 262. 
 of tithes, how laid, 224. 
 
 OVERSEERS of the poor, service of declaration upon, 237. 
 may maintain ejectment, 79. 
 
 P. 
 
 PANNAGE, 22. 
 PARCENERS, 
 
 may maintain ejectment against each other, when, 55. 91. 
 
 when affected by 21 Jac. I. c. 16. 54. 56. 
 
 demise by, how laid 209. 
 
 entry of one is entry of all, 100. 
 
 possession of one is possession of all, 54. 100. 
 
 what acts of, are ousters of companions, 54. 
 
 fine by one, no ouster of others, 55. 
 
 must all join in notice to quit, 127. 
 
 notice to quit to one, will bind all, when, 131. 
 
 service of declaration on, 236. 
 
 special consent rule, when granted to, 263. 
 
 evidence in ejectments by, 277. 
 
 may bring action for mesne profits, 382. 
 PARISH REGISTERS, when evidence, and for what, 282. 
 PARISH, 
 
 need not be stated in demise, 218. 
 
 if stated in demise, material, 2 18.
 
 INDEX. 4H 
 
 PARISH, continued. 
 
 what description of, sufficient, 219.* 
 how stated when more than one, 220. 
 amendment of permitted, 229. 
 PARSON, 
 
 cannot bring ejectment for glebe after sequestration, 81. 
 cannot defend for right to perform divine service, 26 1 . 
 evidence in ejectments by, 302. 
 
 PARTICULARS of breaches, defendant entitled to, 353. 
 PASSAGE-ROOM, 27. 
 PASTURE OF SHEEP, 27. 
 PEASE, acres of, 29. 
 
 PEDIGREE when and how proved, 282, &c. 
 PEER, attachment against, how granted, 338. 
 PERSONAL REPRESENTATIVES, , 
 may maintain ejectment, 70. 
 
 not on4Geo. II. c. 28. if land devised, 171. 
 must give notice to quit, 125. 
 can take advantage of a forfeiture, when, 189. 
 included generally, in proviso for executors to re-enter, 129. 
 are not bound by consent rule, 320. 
 entitled to costs, when, 335. 
 liable for costs, when, 335 
 consent of, when necessary to a devise, 71. 
 evidence in ejectments by, 306. 
 when credible witnesses to prove will, 296. 
 wives of, when credible witnesses, 296. 
 not liable for mesne profits, when, 383. 
 PLEA, 
 
 of general issue is not guilty, 270. 
 
 special, seldom pleaded, 270. 
 
 to jurisdiction allowed, 270. 
 
 ancient demesne pleadable in ejectment, 272. 
 
 how pleaded, 272. 
 
 accord and satisfaction, formerly a good, 270 (c). 
 of release by defendant, good formerly, 204. 
 
 lessor of plaintiff cannot now be pleaded, 274. 
 puts darrien continuance, 274. 
 rightly entitled, not a nullity, 269, (6). 
 signing judgment for want of, 269. 
 withdrawn, judgment how entered after, 273. 
 in action for mesne profits, 
 
 of general issue is not guilty, 386. 
 statute of limitations, good, 386. 
 bankruptcy, not good, 387. 
 
 PLEA-ROLL, death of defendant suggested on, 332. 
 POOL OF WATER, 20. 
 POSSESSION, 
 adverse, 
 
 for twenty years, good title in ejectment, 77. 
 what will amount to, 46, &c. 
 not adverse, 
 
 if parties claim under the same title, 47,
 
 442 INDEX. 
 
 POSSESSION, continued, 
 not adverse, 
 
 if possession and title consistent, 47. 
 
 against lord, if originally taken by his consent, 52. 
 
 aliter, if taken without consent, 52. 
 if party claiming, was never in law dispossessed, 53. 
 if possessor has acknowldeged claimant's title, 56. 
 vacant, 
 
 ancient practice necessary on, and why, 199. 
 premises must be entirely deserted to constitute, 199 (a), 
 formal proceedings on, 200. 
 primd facie evidence of property, 281. 
 how to be delivered by sheriff, 24. 34 1 . 
 lessor of plaintiff must be entitled to, 33, 275. 
 recovery in ejectment is of the, 327. 
 who have a joint, 210. 
 
 of one joint tenant, &c. is possession of all, 54. 
 of defendant, how proved, 277. 
 
 admitted by consent rule, 262. 
 demand of before ejectment, 
 
 when necessary, 121. 
 when not, 60, 122. 
 POSTEA, 
 
 how indorsed, if defendant will not confess, 322. 
 
 if some of several will not, 323. 
 when costs taxed on, 335. 
 
 POSTHUMOUS SON, demise by, when laid, 213. 
 PRACTICE, ancient, 
 
 general detail of, 10, &c. 
 inconveniences attending, 13. 
 when now necessary, 199. 
 how to seal lease, &c. in, 200. 
 how to proceed to judgment in, 201, 202. 
 no person admitted to defend in, 201. 
 PRACTICE, modern, 
 
 when invented, 14. 
 
 outline of, 15. 
 
 not applicable to vacant possessions, 199. 
 
 in inferior courts, 199. 
 PREBEND AL STALL, 19. 
 PREMISES, 
 
 how described in demise, 22, 218. &c. 
 mis-description of, when fatal, 219. 
 locality of, must be proved as stated, 277. 
 PRESENTATION, 
 simoniacal void, 81. 
 how proved, 303. 
 PRIMA TONSURA, 21. 
 
 PROBATE OF WILL, when evidence, and when not, 289. 299,300. 
 PROCEEDINGS, staying of, 
 
 how and when stayed, under 4 Geo. II. c. 28. 170, &c. 
 
 7 Geo. II. c. 20. 361, &c. 
 stayed, when variance between issue and record, 323.
 
 INDEX. 443 
 
 PROCEEDINGS, staying of, continued. 
 
 stayed until particulars of breaches delivered, 353. 
 when stayed, until security for costs given, 
 
 in action of ejectment, 354. 
 in action for mesne profits, 382. 
 in second ejectment, 
 
 till costs of first paid, 355, &c. 
 
 action for mesne profits 
 
 paid, 359. 
 
 pending error in first, 361. 
 not stayed in second ejectment, 
 
 when party in custody, 359. 
 until costs in equity paid, 359. 
 when verdict obtained by fraud, 360. 
 how stayed, when two ejectments are depending at once, 358. 36 1 . 
 
 several ejectments on one title, 361. 
 PROCESS not sued out in ejectment, 206. 
 PROVINCIAL TERMS, premises described by, 24. 
 PROVISO for re-entry, 
 
 for non-payment of rent, 
 origin of, 157. 
 
 at common law, how enforced, 160. 
 provisions of stat. 4 Geo. II. c. 28. respecting, 162. 
 
 proceedings under, 168, &c. 
 stat. 11 Geo, II. c. 19. 175, note. 
 how waived, 173. 
 
 not waived by taking insufficient distress, when, 174. 
 for breach of covenant, 
 
 may be enforced on agreement for lease, 188. 
 who may take advantage of, 191. 
 
 reserved to lessor and lessee, lessee may enter alone, 192. 
 PUIS DARRIEN CONTINUANCE, 274. 
 PUR AUTRE VIE, estates held, 71. 
 
 Q- 
 
 QUARE EJECIT INFRA TERMINUM, writ of, 3. 
 QUARE IMPEDIT, patron must resort to, when, 302. 
 QUARTER OF LAND, 24. 
 
 R. 
 
 RECEIVER IN CHANCERY, 
 
 may give notice to quit, 129. 
 service of declaration upon, not good, 238. 
 RECORD, 
 
 how made up, 273. 
 
 variance between issue and, how to proceed when, 323.
 
 444 INDEX. 
 
 RECTORS, 
 
 may maintain ejectment, when, 80. 
 
 confirm former tenancies, how, 120. 
 evidence in ejectments by, 302. 
 RE-ENTRY, proviso for, 
 origin of, 157. 
 
 holding not adverse if not enforced, 50. 
 operates only during the lease, 198. 
 for rent in arrear, 
 
 forms at common law upon, 160. 
 
 when now necessary, 162. 169. 
 how and when to proceed upon, under 4 Geo. II. c. 20 
 
 166, &c. 
 
 evidence in ejectment upon, 316. 
 for breach of covenant Vide Covenant, 
 cannot be reserved to a stranger, 191. 
 right of, how waived, 149, &c. 192, &c. 
 REGISTER, PARISH, when evidence, 282. 
 RELICTA VERIFICATIONS judgment, how entered, 273. 
 REMAINDER-MAN, 
 
 when required to give a notice to quit, 110. 123. 
 time at which such notice must expire, 143. 
 
 for entry of, to avoid a fine, 97. 
 laches of one no prejudice to another, 97. 
 not competent witness in ejectment, 280. 
 RENT, 
 
 receipt of, when tenancy created by, 107. 110. 
 old doctrine respecting, 112. 
 notice to quit waived by, when, 149, &c. 
 forfeiture waived by, when, 192. 
 by feme, after separation from baron, 120. 
 distress for, when waiver of notice to quit, 154. 
 demand of, 
 
 when necessary upon forfeiture, 162. 168. 
 how to be made at common law, 160. 
 not necessary under stat. 4 Geo. II. c. 28. 162. 
 amount in particulars, need not be proved, 317. 
 non-payment of, proviso for re-entry for. Vide Proviso, 
 increase of, new tenancy not created by, 144. 
 refusal to pay, when disclaimer of tenancy, 125. 
 usual notice to quit required though payable quarterly, 141. 
 double, action for, 154. 
 in arrear, how recoverable under 4 Geo. II. c. 28. 162. 
 
 forfeiture by reason of, how waived, 173. 
 notice to produce receipts of, 312. 
 action for double, 154. 381 (6). 
 
 RENT-CHARGE, grantee of, may bring ejectment, when, 71. 
 REPLICATION, rule for, when granted, 272. 
 REPLY GENERAL, defendant when entitled to, 288. 301. 
 REPUTATION, when evidence, 283, &c. 
 RESTITUTION, writ of, 252. 
 REVERSION, assignee of Vide Assignee.
 
 INDEX. 445 
 
 REVERSIONER, 
 
 when required to give a notice to quit, 123. 
 time at which notice to quit by, must expire, 143. 
 when within 32 Hen. VIII. c. 33. 43. 
 time for entry of, to avoid a fine, 97. 
 may take advantage of a forfeiture, when, 190. 
 RIVULET, 20. 
 ROOM, 27. 
 RULES OF COURT, 
 
 Hilary, 1649. 270. 
 Michaelmas, 1654. 200 (c). 
 Trinity, 14 Car. II. 251. 
 18 Car. II. 270. 
 32 Car. II. 248. 
 31 Geo. III. 249. 
 Easter, 48 Geo. III. 249. 
 
 S. 
 
 SCIRE FACIAS, when necessary in ejectment, 346. 393. 
 SEIZIN IN FEE, how proved, 281. 
 SIGNATURE, to will, 290. 
 
 mark sufficient, 293. 
 if sealing, sufficient, 291. 
 SOCAGE Vide Guardians. 
 STABLE, 27. 
 STATUTES, 
 
 13 Edw. I. c. 24. 6. 
 4 Edw. III. c. 7. 69. 
 8 Hen. VI. c. 16. 79. 
 
 18 Hen. VI. c. 6. 79. 
 
 4 Hen. VII. c. 24. 93. 
 1 1 Hen. VII. c. 20. 39. 
 
 27 Hen. VIII. c. 10. 81, &c. 
 32 Hen. VIII. c. 1. 299. 
 32 Hen. VIII. c. 7. 18. 
 32 Hen. VIII. c. 28. 38. 
 32 Hen. VIII. c. 33. 43. 45. 
 32 Hen. VIII. c. 34. 72. 
 
 2 & 3 Edw. VI. c. 13. 81. 
 13 Eliz. c. 7. 67. 
 13 Eliz. c. 10. 218. 
 21 Jac.I. c. 16. 45. 102. 
 
 2 Car. II. c. 24. 67. 
 
 16 & 17. Car. II. c. 8. 348. 393. 
 
 17 Car. II. c. 8. 332. 
 
 19 Car. II. c. 6. 285. 
 
 29 Car. II. c. 3. 71. 111. 156. 289. 
 
 5 & 6 Wm. in. c. 12. 338. 
 
 8 & 9 Wm. HI. c. 1 1. 332. 337. 
 10 & 11 Wm. IH. c. 16. 213.
 
 446 INDEX. 
 
 STATUTES, continued, 
 
 4 Anne, c. 16. 102. 
 
 8 Anne, c. 14. 155. 
 
 9 Geo. I. c. 16. 78. 
 
 4 Geo. II. c. 28. 134. 153. 158. 162. 213. 248. 316. 
 
 366. 367.381. 
 7 Geo, II. c. 20. 361. 
 11 Geo. II. c. 19. 154. 175. 255. 267. 381. 
 25 Geo. II. c. 6, 295. 
 9 Geo. III. c. 16. 46. 78. 
 14 Geo. III. c. 78. 74. 
 31 Geo. III. c. 35. 295. 
 43 Geo. III. c. 75. 91. 
 55 Geo. III. c. 12. 80. 
 55 Geo. III. c. 184. 299. 
 55 Geo. III. c. 192. 299. 
 
 1 Geo. IV. c. 87. 246. 321. 322. 326. 339. 367, &c. 380. 
 6 Geo. IV. c. 16. 69. 306. 333. 
 1 Wm. IV. c. 38. 69. 306. 
 1 Wm. IV. c. 70. 208. 230. 247. 249. 321. 326. 340. 
 
 376, &c. 
 
 STATUTE MERCHANT. Vide Conusee. 
 SUBSCRIBING WITNESSES, 
 
 notice to quit should not have, and why, 133. 
 to devise of freehold, must be three, 290. 
 
 who may be, 294. 
 SURRENDER, 
 
 of term, when presumed, 89. 
 
 acceptance of invalid notice, amounts to, 154. 
 of copyholds, how proved, 299. 
 
 not necessary to will of, 299, 
 
 unless matter of substance, 300. 
 
 T. 
 
 TENANTS, 
 
 joint and in common. 
 
 may maintain ejectment against co-tenants, when, 91. 
 
 when affected by 21 Jac. I. c. 16. 56. 
 
 demise by, how laid, 209. 
 
 entry of one is entry of all, 100. 
 
 possession of one is possession of all, 54. 98. 
 
 what acts of, are ousters of companions, 54, &c. 
 
 fine by one no ouster of others, 55. 98. 
 
 how notice to quit should be given by, 127. 
 
 notice to quit to one will bind all, when, 131. 
 
 service of declaration upon one good against all, 236. 
 
 special consent rule, when granted to, 263. 
 
 evidence in ejectments by, 277. 
 
 may bring action for mesne profits against co-tenants, 382.
 
 INDEX. 447 
 
 TENANTS, continued. 
 in tail, 
 
 may discontinue their estates, and how, 35, &c. 
 maintain ejectment, 59. 
 
 equitahle, cannot make leases, 88. 
 
 fine by, when avoided by entry, 96. 
 for life, 
 
 may maintain ejectment, 59. 
 
 entry necessary to avoid fine levied by, 96. 
 
 not necessary to avoid fine accepted by, 99. 
 
 estates of, determinable by entry only, 196. 
 from year to year, 
 
 may maintain ejectment, 59. 
 give notice to quit, 156. 
 
 cannot levy fine, 97. 
 
 entry not necessary to avoid fine by, 97, 
 
 permissive occupation may create, 121. 
 
 origin and history of, 105, &c. 
 
 estates of, how determined, 106. 156. 
 
 who are implied, 110. 119. 121. 
 
 not permitted to give cognovit, 273. 
 at will, 
 
 who where formerly, 105. 
 
 who so denominated now, 106. 
 
 mortgagors are not, 60 (c). 108. 
 
 tenancy of, how determined, 121. 
 
 demise against, how laid, 214. 
 in possession, 
 
 declarations by, as to commencement of tenancies, 314. 
 
 how to serve declaration upon, 234, &c. 
 
 must give notice of delivery of declaration, when, 256. 
 
 appearance by, how made, 265. 
 
 how to act if material witnesses, 266. 
 
 service, of, declaration upon one of two, 236. 
 
 not competent witnesses, when, 270. 
 
 may dispute landlord's title, when, 32. 276. 
 TENEMENT, 
 
 not sufficient description in ejectment, 25. 
 
 unless other words added, 26. 
 
 may be struck out of declaration after verdict, 25 (g). 
 TERM, 
 
 when first recovered in ejectment, 9. 
 in declaration Vide Demise, 
 for years, 
 
 not within statute of uses, 87. 
 
 surrender of, when presumed, 88. 
 
 outstanding will bar ejectment, 33. 
 
 assignment of, not a lease, 177. 
 
 notice to quit not necessary at end of, 105. 
 TERRE-TENANTS, 
 
 scire facias in ejectment must be against, 346. 
 TERRIERS, when evidence, 304.
 
 448 INDEX. 
 
 TITHES, 
 
 ejectment will lie for, and when, 18. 80. 
 how to be described in demise, 29. 
 demise of, how laid, 217. 
 ouster of, how laid, 224. 
 evidence in ejectments for, 302. 
 TITLE LEGAL, 32. 275. 
 
 TOMB-STONE, inscription on, proof of death, 286. 
 TONSURA PRIMA, 21. 
 TOWNSHIP, 24. 
 TRIAL, 
 
 notice of. Vide Notice, 
 how to proceed at, 
 
 when a sole defendant will not confess, 322. 
 some of several will not confess, 323. 
 
 old practice in such case, 323 (b). 
 variance between issue and record, 323. 
 day of demise posterior to time of, 324. 
 at bar, when and how granted, 324. 
 new, how and when moved for and granted, 326. 
 proceedings under 4 Geo. II. c. 28. not staid after, 167. 169. 
 TROVER, verdict in, 110 evidence of possession, 309. 
 TRUSTEES, 
 
 may maintain ejectment, 33. 
 
 in what cases, 81, &c. 
 demises by, when necessary, 211. 
 stat. 21 Jac. I. c. 16, runs against when, 50. 
 TRUSTS, when executed by statute of uses, 82, &c. 
 
 U. 
 
 UNDER-TENANT, 
 
 service of declaration should be upon, 235. 
 cannot dispute original lessor's title, 276. 
 bound by notice to quit to tenant, 130. 
 delivery of notice to quit to relation of, not good, 130. 
 UNDERWOOD, 28. 
 USE AND OCCUPATION, action for, 
 
 when waiver of notice to quit, 154. 
 
 what mesne profits may be recovered in, 380. 
 
 V. 
 
 VALUE, DOUBLE, action for, 153. 
 VARIANCE between declaration and issue, 273. 
 
 issue and record, 323. 
 
 verdict and judgment, 328. 
 
 VENIRE, how awarded when one defendant dies, 332. 
 VENUE, 209.
 
 INDEX. 449 
 
 VERDICT, 
 
 is not evidence in second ejectment, 327. 
 
 is ground of judgment, 328. 
 
 every intendment made to support, 328, &c. 
 
 title defectively set out, cured by, 331. 
 
 entered for defendants who do not appear, 323. 
 
 semble, will cure misjoinder of assault and battery with ejectment, 
 
 204. 
 
 VESTRY, 27. 
 VICAR, 
 
 may maintain ejectment, when, 80. 
 
 evidence in ejectments by, 302. 
 
 W. 
 
 WAIVER Vide Notice to Quit and Covenant. 
 WASTE, 
 
 can only be committed of thing demised, 182. 
 security not to commit, 322. 370. 372. 
 rule not to commit pending error, 350. 
 encroachment on, quaere to whom it belongs, 51. 
 inclosure from, 62. 
 WATER-COURSE, 21. 
 WIDOW may bring ejectment for her free bench, 65. 
 
 not for dower before assignment, 66. 
 WIFE. Vide Feme Covert. 
 WILL, 
 
 forms necessary to pass freeholds by, 290, &c. 
 
 how proved, 297. 
 
 what sufficient to pass copyholds, 299. 
 copy of, when evidence, 289. 299. 300. 
 probate, of, when evidence, 299, 300. 
 
 when not, 289. 
 WITNESSES, 
 
 when incompetent from interest, 279. 295. 
 to a devise of freeholds, 
 
 how many necessary, 290. 
 mode of attestation of 291. 
 who may be, 295. 
 
 not be, 296. 
 
 co-lessor cannot be compelled to be, 281. 
 credible, who are, 294, 
 when dead, &c. will how proved, 297. 
 
 O G
 
 PRACTICAL FORMS. 
 
 AFFIDAVIT, 
 
 to move for judgment against casual ejector, 398. 
 of executing power of attorney, 396. 
 of service of declaration, 
 
 upon one tenant only, 402. 
 
 when several tenants are in possession, 403. 
 
 service is upon one tenant and wife of another, 403. 
 
 upon stat. 4 Geo. II. c. 28. 404. 
 for rule for tenant to confess lease and entry only, 407. 
 to accompany plea of ancient demesne, 408. 
 
 CONSENT OF ATTORNIES for tenant to be admitted to defend, 
 
 406. 
 CONSENT RULE, common, 407. 
 
 to confess lease and entry only, 409. 
 
 DECLARATION by original, on a single demise, 399. 
 
 on a double demise with one ouster, 
 
 401. 
 
 with two ousters, 
 402. 
 
 JUDGMENT for plaintiff by nil dicit, with a remittitur damna, 405. 
 
 as to part of the premises, and for 
 defendant on a nolle prosequi as to the residue, 411. 
 
 LETTER of attorney to enter and seal a lease on the premises, 396. 
 LEASE in ancient practice, 397. 
 
 NOTICE to appear in ancient practice, 397. 
 modern practice, 400. 
 
 NOTICE to quit, by landlord to tenant, from year to year, 395. 
 by an agent for the landlord, 395. 
 where the commencement of the tenancy is 
 
 doubtful, 395. 
 by a tenant from year to year, 396.
 
 INDEX. 451 
 
 PLEA of not guilty, 410. 
 
 ancient demesne, 410. 
 POSTEA for defendant on a nonsuit, for not confessing lease, entry 
 
 and ouster, 411. 
 RULE, 
 
 for judgment for the whole premises, 404. 
 
 part only, 405. 
 where part of premises are tenanted and part un- 
 
 tenanted, 405. 
 
 to authorize tenant to confess lease and entry only, 408. 
 for admitting landlord to defend, 409. 
 for execution against the casual ejector, where the landlord had 
 
 been made defendant, and failed at the trial, 412. 
 for staying proceedings, 
 
 till guardian be appointed for infant lessor to answer costs, 417. 
 
 security be given for costs, 417. 
 
 until costs of former action in another court be paid, 417. 
 on payment of mortgage money. &c. 417. 
 rent, &c. 418. 
 
 WRIT, 
 
 original and return thereto, 399. 
 of habere facias possessionem, 412. 
 on a double demise, 413. 
 under stat. 1 Wm. IV. c. 70. 414. 
 and fieri facias in one, 414. 
 
 capias ad satisfaciendum in one, 415. 
 
 including costs in error, 415. 
 of restitution, 416. 
 of scire facias for plaintiff, 417. 
 
 ERRATUM. 
 Page 97, line 3 from the bottom, insert years instead of life. 
 
 THE END. 
 
 LONDON: 
 
 IBQTSON AND PALMER, PRINTERS, SAVOY STREET, STRAND.
 
 
 ,.1 
 

 
 
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