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by judgment against the heir on a bond of his ancestor, and it was upon a bill tiled precedent to the plaintiff's judgment, to which the heir pleaded riens per descent præter the land in question, and thereupon he took a special judgment against the assets confessed (but this was subsequent to the plaintiff's judgment) and had an extendi facias of the whole land, and was put in possession by the sheriff; and per Holt, this special judgment shall have relation to, and bind from the time of filing the original : but such a general judgment as the plaintiff's will not operate by way of relation, but bind only from the time the judgment was given; and thereupon the plaintiff was pansuited.—Greev. Oliver, T. 4 W. & M. Carth. 245.
If the ejectment be brought for a rectory, the plaintiff ought to prove his lessor was admitted, instituted and inducted, and has read and subscribed the thirty-nine articles, and declared his assent and consent to all things contained in the Book of Common Prayer, but he need not prove a title in the patron ; for institution and induction upon the presentation of a stranger is sufficient to bar him who has right in an ejectment, and to put the rightful patron to his quare impedit. (Snowo v. Philips, M. 16 Car. II. 1 Sid. 220.) But presentation ought to be proved, and institution would not be of itself sufficient evidence of it, though it were recited in the letters of institution, especially if induction or possession have not followed. (Clarke v. Pryn, M. 21 Car. II. 1 Sid. 426. S. C. 1 Vent. 16. nom. Heath v. Pryn.) But proof of a verbal presentation is sufficient; however, that cannot be proved by the person who presented, though he were only grantee of the avoidance. But probably in such case evidence of general reputation would be admitted.-Quære, for this was denied by Lee, J. in Rex v. Bray, post, p. 288.
The demise must be laid after the title accrues, otherwise the plaintiff will be nonsuited;(a) but Lord Hardwicke inclined to think that, where an estate was settled to A. for life, remainder to his first and other sons, a posthumous son might lay the demise from the time of his father's death, and that the defendant would be estopped (to say he was not born,) by 10 & 11W. III. c. 16.—Note, Salkeld, in p. 228, makes a quære, Whether this statute extends to a devise, because the words are,
(a) In' ejectment by the surren- for four years creates only a tenancy deree against the surrenderor, the de- at will, but if an ejectment be mise may be laid at any time be- brought against the tenant, the day tween the surrender and admittance, of the demise must not be laid antebecause after admittance the title cedent to a demand of possession by relates back to the surrender. Hold. the lessor, or some other act declafast, . IVoolhams v. Clapham, 1 T. ratory of the determination of his Rep. 600.
will. Goodtitle, d. Galluway v. HerA parol agrecment to lease lands bert, 4 T. R. 680.
“ Where an estate by marriage or other settlement is limited," but there seems no just ground for the doubt.--Basset v. Basset, 16th December 1744, in Canc. (a)
Ejectment of a lease 6 September, 2Jac. and that he was possessed till [ 106 ] the defendant postea, scilicet, 4 September, 2 Jac. ejected him; after verdict for the plaintiff it was moved in arrest of judgment, but the declaration was holden to be good, for when the declaration is, that he was possessed, virtute dimissionis, quousque postea, scilicet, 4 September, 2 Jac. he was ejected; those words scilicet, 4 September, 2 Juc. are impossible and repugnant, therefore must be rejected. --- Adams y. Goose, M. 1606. Cro. Jac. 96.
N. B. This case was cited in (Goodgaine v. Wakefield,) 1 Sid. 3, and the difference taken at the bar, and there it appeared on the plaintiff's own shewing, that be entered before the lease commenced, and therefore was a disseisor; but here that be entered by force of the lease : however, Sir Orlando Bridgman, C. J. şaid he thought there was no reason for the judgment: yet I am strongly inclined to think that in these days the courts would in support of the action hold the case of Adams v. Goose to be
In ejectment the plaintiff declared upon a lease, dated 1st February 1742, to hold from 8th January before; that afterwards, viz. 281h Ja, nuary 1752, the defendants ejected bim. It was insisted for the defendants, that the ejectment was laid to be before the plaintiff's title under the lease, which was not made till the 1st of February, and i Sid. S. sup. was cited; but it was holden that the day of the ejectment being laid under a videlicet was surplusage, and that afterwards should relate to the time of making the lease, and then all would be well enough; and the plaintiff had a verdict.--Swymmer & al' v. Grosvenor, Bart. & al', at Salop assizes, 1752, cor. Gundry, J.(6)
(a) “ Sect. 1. Where any estate is, as if born in the life-time of the fa
shall be, by any marriage or other ther, although there shall happen “ settlement, limited in remainder no estate to be limited to trustees,
to or to use of the first or other 6 after the decease of the father, to “son or sons of the body of any per- preserve the contingent remainder
son lawfully begotten, with any re- to such after-born son, &c. until "mainder over to or to the use of “ he come in esse, or be born 10 “ any other person, or in remainder
“ take the same. And by sect. 2. it “ to or to the use of any daughter " is provided, that nothing in this “lawfully begotten, with any re- " act sball extend to divest any eslate “mainder to any other person, than “ in remainder that, by virtue of any
any son or daughter of such per- " settlement, is already come to pos“son lawfully begotten, that shall “ session." 4 be born after the decease of the fa- (b) The demise must be laid some " ther, shall, by virtue of such set- day after the lessor's title comtlement, take such estate so limited menced, for the question is, whether
The lease declared upon was from the 25th of March 1765, for seven years. The plaintiff proved that J. S. was seized; and that by indenture in 1763, he demised the premises in question to D. for seven years, to commence at Midsummer 1769, and that in 1764, D. assigned the residue of the term then unexpired to Carruthers. It was insisted for the defendant, that though in ejectment the lease is fictitious, yet the plaintiff must declare on such a lease as suits with the title of his lessor ; here if he recover at all, he must recover a term, which is of two years longer duration than his title, and (Roe v. Williamson,) 2 Lev. 140, (Cramporne v. Freshwater,) i Brownl. 133, were cited. But
But per Lord Mansfield, there is nothing in the objection, for if the lessor have a title, though but for a week, he ought to recover; for the true question in an
he could then make a lease; there. 2 Burr. 1159. Roe, d. IV rangham v. fore, where an entry is as necessary Hersey, 3 Wils. 274. to complete a title (Goodtitle, d. Gal In Goodright, d. Smallwood v. Strolaway v. Herbert, 4 T. Rep. 680) as ther, 2 Bla. 706, it was held that the to avoid a fine (Berrington r. Park- vill in which the demised land lay, kurst, Stra. 1087) or a recovery, though omitted in the declaration, (Taylor, d. Atkyns v. Horde, Burr. shall, after verdict for the plaintiff, 119) the demise must be laid on a be collected from the vill in which day subsequent to the entry; but it the ejection is laid to have been is usual to lay the demise as far back committed, for that amounts to a as possible, that the judgment may be sufficient certainty. conclusive evidence in an action for The demise may be made for any mesne profits. The demise should number of years, Selw. N. P. Abr. also be laid before the declaration, 638 ; therefore, in case of a yearly but if a man deliver a declaration tenancy, if the tenant die intestate, against the casual ejector as of Easter his administrator has the same inteterm, which must be delivered be- rest in the land which the intestate fore the essoin-day of Trinity, and had, and the lessee of such adminithe plaintiff's title arise after Easter strator may declare on a term for term, if the tenant in possession ac- seven years. Doe, d. Shore v. Porter, cept the declaration, it must be of 3 T. Rep. 13. The court, however, Trinity term, and then the plaintiff will permit the plaintiff to amend his can shew a good title on that decla- declaration by enlarging an expiring ration of Trinity term, for then the term, in such a case as was done in declaration against the casual ejector Dickens v. Greenvill, Carth. 3, where as of Easter term will be put out of several ancient rules in point were the case, and the defendant pro- produced, (though Hutchins, d. Norceeds to issue on the declaration of worthy v. Basset, Comb. 90, was Trinity term ; but if the defendant contra) and also in Vicars v. Haydon, will not proceed to issue as of Cowp. 841, where all the later auTrinity term, and confess lease, 8c. thorities are collected, and upon the he has no remedy, for the plain- authority of Dickens v. Grenvill, and tiff will take judgment against the Vicars v. Haydon, Lord Chancellor casual ejector. Runn. on Eject. 208, Redesdale, assisted by the judges in (ed. 1795.)
Ireland, made an order to amend the So where plaintiff declared on a record by enlarging the term, which demise at an impossible time, the had expired pending a writ of error court, after verdict, over-ruled the in the exchequer chamber. Power, d. objection. Small, d. Baker v. Cole, Boyce v. Rowe, 1 Sch. & Lef. 81 (n.)
ejectment is, who has the possessory right. Suppose a person has an interest for three years only, and should make a lease for five years, it would be good for the three years.-- Bedford (Lessee of Carruther) v. Dendien, Sittings at Middlesex after T. 5 Geo. III.
If there be several lessors, and you lay in the declaration quod dimise- ( 107 ) runt, you must shew in them such a title that they might demise the whole; (Mantlew v. Wollington, T. 1607. Cro. Jac. 166.) and therefore if any of the lessors have not a legal interest in the whole premises, he cannot in law be said to demise them, for it is only his confirmation where he is not concerned in interest : so if the plaintiff were to declare upon a lease made by A. and B. and it were to appear on the trial that A. was tenant for life, remainder to B. in fee, it would be bad: (I'riport's Ca. 36 Eliz. 6 Co. 14, b.) So if A. and B. were tenants in common; but it would be otherwise if they were joint-tenants, and the rea. son of the difference is, that tenants in common are in of several titles, and therefore the freehold is several, and consequently each of them cannot demise the whole : but joint-tenants are seised per my et per tout, and therefore each may be said to demise the whole; and coparceners stand upon the same foundation. (Moore v. Fursden, M. 3 W. III. i Show. 342. Morris v. Barry, H. 16 Geo. II. 1 Wils. 1. 2 Stra. 1180. Boner v. Juner, T. 10 W. III. 1 Raym. 726.) Therefore there ought to be a different count on the demise of each tenant in common, or they may join in a lease to a third person, and that lessee make a lease to try the title.—Lit. sect. 316. Gilb. L. of Ejectm. 86.) (a)
Jf the plaintiff make title in the lessor as lord of a manor, who has right by forfeiture of a copyhold, he ought to prove that his lessor is lord, and the defendant a copyholder, and that he committed a forfeiture, but the presentment of the forfeiture need not be proved, nor the entry or seizure of the lord for the forfeiture.-Peters, ex dem. Episc. Winton v. Mills & al, per Tracy, Surry, 1707.
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 com
(a) Declaration in ejectment. The first count was on a demise of the whole by E. L.; second count, the like by I. G.; third, the like by I.C. all on 2d October, 1811. In evi. dence a lease was produced, dated August 22, 1780, whereby the lessors of the plaintiff, G. and C. and I. L. (since dead) father of the lessor, E. L. demised to defendant for thirty years, and it was proved that defendant bad
paid rent under the lease. It was
mon law, because he has not a customary estate by copy, but a warrantable estate by the rules of the common law.— Co. Copyl. s. 51.(a)
Note; If the copyholders of a manor belonging to a bishoprick, during the vacancy of the see, commit a forfeiture by cutting timber, the succeeding bishop may bring ejectment. (Read v. Allen, per Comyns, Oxford Circuit, 1750.) If an ejectment be brought against the lessee for years of a copyholder' (relying upon the lease as a forfeiture) the plaintiff must prove an actual admittance of the copyholder ; (Boner v. Juner, sup.) and it will not be sufficient to prove the father admitted, and that it descended to the defendant's lessor as son and heir, and that
(a) A copyholder ejected by his the surrenderee the copyhold remains lord may maintain an ejectment, for in the surrenderor, and if he die, though called a tenant at will, yet he his heir may bring ejectment. Wile cannot be put out whilst he performs son v. Weddell, Yelv. 144. But afhis services. Lit. sect. 77. But in ter admittance the surrenderee may such cases the copyholder should be maintain ejectment against the surwarranted to make leases, either by renderor, and lay his demise on a day the custom or by the lord's licence. between the surrender and admit. Anon. 1 Leon. 4. Goodwin v. Long- tance. Holdfast, d. Woollams v. Claphurst, Cro. Eliz. 535.
ham, 1 T. R 600. without a custom to warrant such When the devisee of a copy hold lcases, the tenant may maintain this estate, which has been surrendered action against every man but bis to the use of the will, died before ad. lord. Spark's Ca. Mo. 569. Cro. mittance, it was held that her deEliz. 676. So if the lessee of a copy- visee, though admitted afterwards, holder be ejected by a stranger, he could not recover in ejectment, for may have this action. Melwich v. the admittance of the second devisee Luter, 4 Co. 26. So the lord shall had no relation to the last legal surmaintain this action against his te- render, and the legal title remained nant for a forfeiture. Vide Peters, d. in the heir of the surrenderor. Doe, Winton Bp. v. Mills, sup.
d. Vernon v. Vernon, 7 East, 8. So an heir to whom a copyhold 4. a copyholder for life, remainder descends may surrender before ad- to B. surrendered his own and B.'s mittance, for he is in by course of estate, (over which latter he had no law, and the custom which makes controul, and by which he let in B.'s him heir casts the possession upon remainder) and took a new copy for him from his ancestor, and there- the lives of himself, C. and B. succesfore he may maintain this action be- sirè, and on.A's death, after twenty fore admittance. Roe, d. Jeffereys v. years had run against B. he entered Hicks, 2 Wils. 15. Roe, d. Tarrant on the possession then vacant. Held .v. Hellier, 3 T. R. 169. So a wi- that as against C. who had no pos. dow, entitled to her free bench after session and no title, B. might defend the death of her husband, may main- his legal title, coupled with possestain an ejectment before admittance, sion, though the twenty years pose for her estate comes out of her hus- session by A. had barred his possesband's. Jurden v. Stone, Hutt. 18. sory right as against him, or might But a stranger to whom a copybold have disabled B. from recovering had is surrendered bas nothing before he been out of possession. Doe, d. admittance, because he is a pure Borough v. Reade, 8 East, 353. chaser, and until the admittance of