[98] If the plaintiff after issue, and before the trial, enter into part, the defendant may, at the assizes, plead this as a plea puis darrein continuance in bar to the plaintiff's action, but it is at the discretion of the justices, whether they will receive it; but if they do, it stops the trial, and the plaintiff is not to reply to it at the assizes, but the judge is to return it as parcel of the record of Nisi Prius.-Moore v. Hawkins, M. 8 Jac. I. Yelv. 180. Cro. Car. 261. (a) The plaintiff has a right to proceed both for the possession and the trespass, and therefore the death of the lessor (though only tenant for life) is no abatement; but if the plaintiff in such case insist to go on, the court will oblige him to give security for payment of the costs in case judgment go against him.-Thrustout ex dem. Turner v. Grey, M. 10 Geo. II. 2 Stra. 1056. If on the trial-the defendant will not appear, and confess lease, entry, and ouster, (b) the course is to call the defendant to confess, &c. and (a) Sed vide Paris v. Salkeld, -2 Wils. 137. 139, Wilmot, C. J. held, that he was bound to receive this plea if verified by affidavit, and Lord Kenyon confirmed the same doctrine in Lovell v. Eastaff, 3 T. R. 557. (b) In Doe ex dem. Fisher v. Prosser, Cowp. 217, Lord Mansfield said, actual ouster does not mean an act accompanied by actual force. A man may come in by a rightful possession, and yet hold over adtersely without a title. If he does, such holding over, under circumstances, will be equivalent to an actual quster. If tenant pur auter vie hold over for twenty years after the death of cestui que vie, such holding over will in ejectment be a complete bar to the remainder-man or reversioner, because it was adverse to his title. So, in case of tenants in common, the possession of one tenant in common, co nomine as tenant in common, cau never bar his companion, because such possession is not adverse to the right of his companion, but in support of their common title, and by paying him his share he acknowledges him as his co-tenant: nor indeed is a refusal to pay, of itself sufficient, without denying his title. But if upon demand by the co-tenant of his moiety, the other denies to pay, and denies his title, saying he claims the whole, and will not pay, and continue in possession, such possession is adverse, and ouster enough. Receipt of rents and profits for forty years, without account, is evidence of ouster. Ibid. In Peaceable ex dem. Hornblower v. Read, 1 East, 568, 574, Kenyon, tation in saying where the line of C. J. observed, that he had no hesiit ends. Prima facie the possession adverse possession begins and where of one tenant in common is that of another, but it must be shewn that one of them has been in possession, sole use, without accounting to the and received the rents to his own other, and yet the other has acquiesced in this for such a length of time as may induce a jury, under actual ouster of his companion, and all the circumstances, to presume an there the presumption ends. Ouster which circumstances are matter of may be inferred from circumstances, evidence to be left to a jury. In Doe v. Prosser, sup. there was an undisturbed and exclusive possession for forty years, by one tenant in common, which the court properly held to be sufficient evidence of an ouster to leave to the jury. then ༢ then to call the plaintiff and nonsuit him, and pray to have it indorsed on the postea that the nonsuit was for want of confessing, &c. and then upon the return of the postea judgment will be given against the casual ejector. If there be several defendants, and some of them do not appear and confess, according to the old method a verdict was to be taken for them, and the postea was indorsed that the verdict was for them because they did not confess. But, it is said, in Greeves v. Rolls, Salk. 456, that by a rule made 4 Ann. B. R. the plaintiff shall go on against those who will confess, and shall be nonsuited as to those who will not; but the cause of the nonsuit shall be expressed on the record, and upon the return of the postea, the court being informed what lands were in the possession of those defendants, judgment shall be entered against the casual ejector as to them.-Clarmore v. Searle, 13 W. III. 1 Raym. 729. N. B. I can find no such rule in the printed book: and in Ellis v. Knowles, E. 7 Geo. II. in C. B. 1 Barnes 118, upon the precedent of Clarmore v. Searle, sup. judgment was given on motion against the casual ejector, as to such of the defendants as were acquitted at the trial for not confessing, as appeared by an indorsement on the postea; and this seems the right way. If there be several tenants in possession, the plaintiff must deliver a declaration to each of them. (a) Where the house is empty it is necessary to seal a lease on the land, and give rules to plead, and when they are out, upon affidavit of the whole matter, the court grants judgment.-Vide ante, p. 95 b. n. (a) Where a corporation aggregate is lessor of the plaintiff, they must give a letter of attorney to some person to enter and seal a lease upon the land, and therefore the plaintiff ought in such case to declare upon a demise by deed, (for they cannot enter and demise upon the land as natural persons can) though this will be aided after verdict.Patrick ▾. Balls, M. 8 W. III. Carth. 390. (b) If a material witness for the defendant be also made a defendant, the right way is for him to let judgment go by default; but if he [*99 】 plead, and by that mean admit himself tenant in possession, the court will not afterwards upon motion strike out his name. But in such case if he consent to let a verdict be given against him for as much as he (a) Vide Goodtitle v. Meymot, Stra. 1211. Smith v. Jones, 8 Mod. 119. Roer. Doe, ex dem. Stevenson, 2 Barnes, 186. (4to ed.) (b) It is doubtful however whe ther this is now necessary, at all is proved to be in possession of, I see no reason why he should not be a witness for another defendant.-Dormer v. Fortescue, M. 9 Geo. II. Willes 343 (n). If an ejectinent be brought for a church, the curate may move for a special rule to defend only quoad a special right of entry to perform divine service. So it is said in Hillingsworth v. Brewster, H. 11 W. III. Salk. 256. But in Martin v. Davis, M. 5 Geo. II. Stra. 914, the court denied to let the parson of Hampstead chapel defend only for a right to enter and perform divine service, saying the case in Salk. has been often denied. An ejectment lies for part of a highway, and though it be built upon, it shall be demanded as land. Goodtitle, d. Chester v. Alker, B. R. Hil. 30 Geo. II. Burr. 133. An ejectment will lie for nothing of which the sheriff cannot deliver execution: therefore it will not lie for a rent, common, or other thing lying in grant, quæ neque tangi nec videri possunt; but it will lie for common appendant or appurtenant, for the sheriff by giving possession of the land gives possession of the common; (Newman v. Holdfast, M. 3 Geo. II. Stra. 54.) (a) so it will likewise lie for tithe by the 32 Hen. 8. c. 7. where they are appropriated; but in such case the demise must be (a) It would be almost useless to state for what an ejectment will or will not lie, but when the courts of law found it expedient in this action to give the writ of habere facias possessionem, in order that the plaintiff might recover the possession itself, it became necessary to confine it to such things as the sheriff might have recourse to after judgment, and it is said to be the design of the law to have the thing demanded so particularly specified, that the sheriff may know (in case the plaintiff should recover) what to join the possession of, for the judgment is with a view to execution, and it would be in vain if execution could not be had of the thing specifically demanded. Bindover v. Sindercombe, Raym. 1470, and yet it is now the practice for the sheriff to deliver the possession according to the direction of the plaintiff who acts therein at his peril, but in ejectment the judges do not confine themselves to those rules which govern the precipe quod reddat, for they allow some things to be recovered which cannot be demanded in the præcipe, for since the establishment of that real action many things have been added and improved which have acquired new appellations, now perfectly understood, though not to be found in the old law books, and as men began to form their contracts by such new appellations, it was but reasonable that the remedy should follow the nature of the con tract. Vide Cottingham v. King, 1 Burr. 629. Conner v. West, 5 Burr. 2673, whilst ejectments indeed were compared to real actions, and arguments where drawn by analogy from them, they must of course have been fettered, and this was very much the case till after the reign of king James I. but of later times an ejectment has been considered with more latitude and greater liberality as a fictitious action to try titles with more ease and dispatch, and with less expence to the parties. Cottingham v. King, sup. set set forth to be by deed, though after a verdict this would be aided; it must likewise shew the nature of the tithe.-Linsey v. Clerk, M. 8 W. III. Carth. 390. Wirral v. Harper, T. 12 Jac. I. 11 Co. 28. Partridge v. Ball, H. 8 & 9 W. III. 1 Raym. 136. Whatever creates a discontinuance is a bar to an ejectment; as if tenant in tail make a feoffment, or levy a fine to another in fee, the issue cannot bring ejectment as he may if his ancestor alien by lease and release without warranty. (Co. Litt. 337.) If tenant in tail, remainder to B. in tail, bargain and sell to C. and his heirs, and afterwards levy a fine with proclamations to C. and his heirs, who enfeoffs D. tenant in tail dying without issue, the remainder-man may bring ejectment, for the fine levied to the bargainee makes no discontinuance of the remain. der, no estate of freehold passing by it; (Seymour's Case, 10 Jac I. 10 Co. 95.) but if it had been levied before the bargain and sale inrolled, or if the bargain and sale had been expressly made to declare the use of the fine, so that both must have been considered as one conveyance, it had been otherwise; (Odyern v. Whitehead, T. 32 Geo. II. K. B.) and the feoffment of the conusee is no discontinuance of the remainder, for none can discontinue the remainder or reversion, but he only to whom the land is intailed, and none can discontinue an estate tail, unless he discontinue the reversion of him who has the reversion, or remainder if any hath the remainder, * &c. (Co. Litt. 335.) Therefore if a donee [100] in tail, reversion in the donor, infeoff the donor, it is no discontinuance, So if before 34 Hen. 8. c. 20, the reversion were in the king, the tenant in tail could not discontinue the estate tail, though he might have barred it by a common recovery. (Co. Litt. 331.) And note, that it is a maxim, that a grant by deed of such things as lie in grant works no discontinuance.-So a fine sur grant and render, or sur conusance de droit tantum.-It is likewise a maxim, that none can make a discontinuance but he who is seized of the estate tail in possession; and therefore if tenant for life and he in remainder in tail make a feoffment by deed, it is no discontinuance. (Co. Litt. 333. 1 Rol. Abr. 632. (B) 1. Peck v. Channel, E. 1602. Cro. Eliz. 828. Cromwell's Case, 43 Eliz. 1 Co. 76.) So likewise if they levy a fine. (Co. Litt. 302. Ibid. 326.) If tenant in tail make a lease for the life of the lessee, it is a discontinuance; and so it is though the remainder-man join in the lease. (Baker v. Hacking, E. 1635. Cro. Car. 405.) A tenant for life, remainder to his wife for life, remainder to the heirs of their bodies, remainder to B. husband and wife levied a fine with warranty, and died sans issue, B. brought ejectment, and it was holden that the fine was no discontinuance, and consequently the warranty no bar. (Stephens v. Britridge, N 2 Britridge, T. 13 Car. II. 1 Lev. 36.) And note, no discontinuance lasts longer than the wrongful estate created by it, therefore where tenant in tail levied a fine to B. for life, and after levied a second fine for the use of himself in fee, and then bargained and sold to J. S. it was holden the first fine made a discontinuance only for the life of B. Secondly, the second fine did not enlarge the discontinuance, because the estate returned back to the conusor. Thirdly, if the second fine had been levied to a stranger, yet during the life of the first conusee it had been no discontinuance.-Co. Litt. 333. By 32 H. VIII. c. 28. No fine, feoffment, or other act, made, suffered, or done by the husband only, of any manors, &c. being the inheritance or freehold of the wife, during the coverture shall make a discontinuance thereof.-A feoffment by husband and wife is within this act. (Co. Litt. 326.) So where during the coverture lands are given to the husband and wife, and the heirs of their two bodies. But in that case if the husband levy a fine with proclamations it will bar the issue, and if five years pass after his death without any entry or claim by the wife, her entry will be taken away and her right extinguished. (Greenley's Case, 7 Jac. I. 8 Co. 72.) If land be given to the husband and wife, and the heirs of the body of the husband, and the husband make a feoffment in fee, this is a discontinuance if he survive his wife, but not otherwise.-King v. Edwards, M. 1633. Cro. Car. 320. By 11 H. VII. c. 20. If any woman having an estate in dower, or for life or tail, jointly with her husband, or wholly to herself or to her use, of the inheritance or purchase of the husband, or given to the husband or the wife in tail or for life, by any ancestor of the husband's or other person seized to the use of the husband or his ancestors, being sole, or with other after-taken husband, discontinue, alien, release, or confirm with warranty, or by covin suffer a recovery, all such recoveries, discontinuances, &c. are void, and every person to whom the interest should belong after the death of the woman, may enter as if no discontinuance had been; and if such husband and wife make such discontinuance, the person to whom the manors, &c. should belong after the death of the woman, may enter and hold according to such title as he should have had if the woman had been dead, and there had been no discontinuance, as against the husband during his life, provided that the woman after the death of the husband may re-enter. But if sole when the discontinuance is made, she shall be barred for ever, and the person to whom the interest belongs may enter. If a husband devise to his wife in tail, remainder to B. in fee, and the wife with a second husband levy a fine to J. S. the son by the second husband |