person enters under an agreement for a lease, without a stipulation that in case a lease is not executed he shall hold for one year certain, if a lease be tendered to the occupier and he refuses to execute it, the lessor may eject him without any notice to quit. But where the lessor of the plaintiff had put the defendant into possession under an agreement for the purchase of the land, it was holden, that he could not without a demand of the possession again, and a refusal by the defendant, or some wrongful act by him to determine his lawful possession, treat the defendant as a wrong-doer and a trespasser, as he assumed to do by his declaration in ejectment. The defendant's confession of a lease from the lessor to the plaintiff, under the common rule, is not sufficient to determine the possession; for the rule is only entered into after the delivery of the declaration in ejectment, and can never prove that the defendant was a trespasser before that time.

VI. Of the Mode of proceeding in Ejectment, and herein of the Declaration.

THE mode of proceeding in the action of ejectment now in use, is not, as in other actions, by suing out a writ; but A., the party claiming title, before the essoign day of the term, serves a copy of a declaration, with a notice subscribed, upon B. the tenant in possession of the lands or tenements; or, if there be several tenants, on each of them.

The declaration states that A. on a certain day, (that is, some day after A.'s title to the land, &c. accrued), demised to John Doe two messuages, one hundred acres of land, &c. situate, &c. for the term of years, by virtue of which demise the said John Doe entered and was possessed, until Richard Roe afterwards ejected him.

Such is the outline of the declaration, which is for the most part a fiction; for, except in a few instances, there is neither lease, entry, nor ouster; and the parties, viz. the plaintiff, and the defendant, the ejector, usually termed the casual ejector, are fictitious persons. In some respects, how

y Per Curiam, Hegan v. Johnson,

2 Taunt. 148. See also Doe d. Leeson. Sayer, 3 Camp. N. P. C. 8.

z Right d. Lewis v. Beard, 13 East,

210.

a Bull, N. P. 98.

ever, care and accuracy are necessary in framing this declaration; as, 1st, The venue must be laid in the county in which the lands lie; for this is a local action. 2d, If there be several lessors, the demise stated in the declaration must be such as their title will warrant; as if the lessors of the plaintiff be joint-tenants or parceners (19), the declaration must allege joint demise; if tenants in common, a several demise by each of their several parts (20). In the latter b Bull. N. P. 107. Heatherley v. Weston, 2 Wils. 232.

e Mantle v. Wollington, Cro. Jac. 166. S. P. Moor v. Thursden, Show. 342.

(19) In an action of ejectio firma, a lease was made by two parceners, and it was declared quod dimiserunt; an exception was taken, on the ground, that the lease was the several lease of each of them for her moiety, and holden good. Moor, 682. pl. 939. This case was denied by Hoit, C. J. in Ld. Raym. 726. who ruled, that parceners might join in ejectment. Holt's opinion is confirmed by a passage in 1 Inst. 180. b. where it is said, that jointtenants must jointly implead, and jointly be impleaded by others, which property is common between them and parceners; and Holt's opinion is adopted in Buller's N. P. 107. It is corroborated by the following position in 1 Rol. Ab. 878. pl. 5. If two parceners join in a lease for years by indenture, this is but one lease; for they have not several frank-tenements, but shall join in an assize. And in Stedman v. Bates, Ld. Raym. 64. it was holden that parceners must join in an avowry for rent arrear.

(20) Declaration in ejectment was of a joint demise of A. and B., and on the evidence it appeared that they were tenants in common; the plaintiff failed." M. 3 Jac. Blackasper's case. Noy, n. 43. Hal. MSS. See Noy, 13. cited in Hargrave's n. (7) 1 Inst. 45. a. But payment of rent to the agent of A. B. C. is an admission that the party holds under A. B. C. jointly, and will support a joint demise, unless it be expressly proved that they were entitled in a different manner. Doe d. Clarke and others v. Grant, 12 East, 221. See also Doe v. Read, 12 East, 57. In Roe d. Raper v. Lonsdale, 12 East, 39. it was holden that a copyhold descending by custom to all the children equally of the tenant last seised, one of the joint-tenants might maintain ejectment on his single demise for his own share. In Doe d. Lulham v. Fenn, 3 Camp. N. P. C. 190. Lord Ellenborough, C. J. held, that in ejectment on the several demises of three persons, each demise being of the whole, the lessors of the plaintiff were entitled to a verdict, upon evidence, that they had jointly granted a lease to the defendant under which he had paid rent, but which had expired.N. It was objected, that it must be taken that the lessors of the plaintiff were joint-tenants, and as there was not any joint demise, the plaintiff could not recover, but Lord Ellenborough overruled the objection. See Worrall v. Beck, M. 3 Geo. 2. cited 1 Wils. 1.

case the declaration must contain as many counts as there are tenants in common lessors of the plaintiff. But tenants in common may join in a lease to a third person, and then the declaration may state a demise by such lessee. 3d, The day, on which the demise is stated to have been made, must be some day after the title of the lessor of the plaintiff accrued; otherwise the plaintiff will be nonsuited; for not being entitled to the possession he cannot make a lease. Hence, in the case of a fine levied with proclamations, where an actual entry is necessary to complete the lessor's title, the demise must be laid on a day subsequent to the entry. But the surrenderee of a copyhold estate, after admittance, may maintain an ejectment against the surrenderor, on a demise laid on a day between the times of surrender and admittance; because, as against all persons, but the lord, the title of the surrenderee, after admittance, is perfect as from the time of the surrender, and shall relate back to it. So in ejectment by an administrator, the demise may be laid on a day after the intestate's death, but before administration granted; for the administration, when granted, will relate back, and shew the title to have been in the administrator from the death of the intestate. But the bargain and sale by the commissioners to the assignees of a bankrupt, of the bankrupt's freehold lands, does not relate to the act of bankruptcy so as to vest the title in the assignees from that time, and, therefore, in ejectment by the assignees upon a demise laid, after the act of bankruptcy but before the bargain and sale, it was adjudged ill. 4th, The demise may be for any number of years; this part of the declaration being a fiction, it will not be any objection that the lessor of the plaintiff had not power to grant a term of equal duration with that alleged. Hence, tenant from year to year, may declare on a demise for seven years. Care should be taken that the term stated be long enough to admit of the plaintiff's recovering possession before it expires (21).

d Berrington v. Parkhurst, Str. 1086. f Doe d. Esdaile v. Mitchell, 2 M. & e Holdfast v. Clapham, 1 T. R. 600. S. 446. g Doe v. Porter, 3 T. R. 13.

(21) But the courts have been very liberal in permitting plaintiffs to amend in this instance. In the case of Power d. Boyce and another v. Rowe, (in Ireland, Pasch. 1802.) the term expired, whilst the case was depending in the Exchequer Chamber; the judgment having been affirmed, a motion was made to enlarge the term, and the court (Lord Redesdale, C. assisted by the chief justices) on the authority of Dickens v. Greenvill, Carth. 3. and

5th, If the ejectment be brought by a corporation aggregate (22), an infant, or for tithes, the declaration ought to state that the demise was by deed; and, in the case of the infant, it ought to appear that some rent was reserved; but it is not necessary that the deed should be proved. In ejectment for tithes the declaration ought to set forth the nature of the tithe'. 6th, With respect to the description of the thing demised, it may be observed, that regularly it ought to be made with such certainty, that the sheriff may know, from an inspection of the record, what he is to deliver possession of. But the strictness of this rule has been relaxed in many instances, on the ground that the sheriff is to take his information from the party recovering (23). 7th, The ejectment or ouster must be stated to have been made after the commencement of the supposed lease: but it is not necessary, although usual, to mention any particular day". It is sufficient, if it

h Carth. 390. This omission will be aided by verdict. Bull. N. P. 98.

i Swadling v. Piers, Cro. Jac. 613. Omission cured by verdict, Partridge v. Ball, Ld. Raym. 136.

k Furley v. Wood, 1 Esp. N. P. C. 198. Kenyon, C. J.

Bull. N. P. 99.

m Merrel v. Smith, Cro. Jac. 311.

Vicars v. Haydon, Cowp. 841. made an order to amend the record by enlarging the term. A writ of error was then sued, returnable in parliament, and upon the record so amended being transmitted, the plaintiff in error complained, by petition, to the House of Lords of the amendment made by the Court of Exchequer Chamber as an alteration of the record, and prayed a writ of certiorari to be directed to the Court of Exchequer C. to transmit the record in its original form. Upon debate, their lordships refused the writ, holding the amendment to have been properly made, and finally affirmed the judgments on the merits. See Lessee of Lawlor v. Murrey, 1 Schoales and Lefroy's Rep. 81. n. (a.)

(22) A corporation aggregate cannot make a lease for years without deed, in respect of the quality of the incorporation. 1 Inst. 85. a. (23) Ejectio firma of 30 acres of land in D. and S. The defendant was found guilty of 10 acres, and as to the residue, not guilty; and it was moved, in arrest of judgment, that it is uncertain in which of the vills this land lay, and therefore no judgment can be given, nor any execution. But the objection was overruled; and it was adjudged for the plaintiff'; for the sheriff shall take his information from the party for what 10 acres the verdict was.Portman v. Morgan, Cro. Eliz. 465. See also to the same effect, Cottingham v. King, 1 Burr, 623. and Connor v. West, 5 Burr.

appear on the face of the declaration, that the ouster was after the term commenced, and before action brought.

Of the Notice subscribed to the Declaration.-To the declaration is subscribed a notice to the tenant in possession, from the casual ejector, and subscribed with his name, signifying, that unless the tenant appear, &c. in the term (24) next ensuing that in which the declaration is served, and by rule of court, cause himself to be made defendant, in the room of the casual ejector, he shall suffer judgment to be entered against him, and the tenant will be turned out of possession. At the time when the copy of the declaration and notice is delivered to the tenant in possession, he must be informed of the nature of the proceeding, and the notice should be read to him, or the substance of it fully explained. The delivery of the declaration and notice, accompanied with the explanation above-mentioned, is called service of a declaration in ejectment.

VII. Of the Service of Declaration.

THE tenant or tenants in possession may be served personally at any place. But in cases where tenant in possession cannot be served, service on the wife of tenant in pos

(24) This is the form of notice in a country cause; but if the lands lie in London or Middlesex, regularly the notice ought to be to appear on the first day of the term, whether the proceedings are by bill or original. By the first day of the term here is meant the first day of full term. Although in some cases the court will permit an amendment of the notice, yet it is better to observe the rule here laid down; for where in ejectment brought by original in Middlesex, the notice was to appear on the morrow of the Holy Trinity, the court set aside the judgment, which had been given on the usual affidavit against the casual ejector; observing, that the notice was designed to inform the lay gents of the time of appearing; and that, therefore, it should be expressed in such terms as they might understand. Doe d. Joynes v. Roe, T. 10 G. 2. MSS. See also Holdfast v. Freeman, Str. 1049. where the notice was to appear on the essoign-day of the term, and holden bad.—. If the notice is subscribed in the name of the nominal plaintiff, instead of the casual ejector, the court will not set aside the proceedings for irregularity. Hazlewood v. Thatcher, 3 T. R. 351. in which the case of Peaceable v. Troublesome, 1 Barnes, 4to. edit. 172. was over-ruled.