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holden8 sufficient, without any notice to quit; as the minister was a mere tenant at will to the trustees. The same point was ruled in a subsequent case, where the defendant had an annual salary of £20, and the ejectment had been served immediately after the demand of possession; although it was urged that the defendant was entitled to a reasonable notice. It is not necessary that this demand should be made on the premises, and even where made on a Sunday, it was holdeni good. 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.
See stat. 1 Geo. 4. c. 87. for more speedily recovering possession of lands and tenements unlawfully held over by tenants, under lease or in writing. But this statute does not apply in cases where the title is disputed. Doe d. Sanders v. Roe, 1 Dowl. P. C. 4.
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 first 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 eacha of them. Declarations in ejectment may be served before the first day of any term, and thereupon the plaintiff shall be entitled to judgment against the casual ejector in like manner as upon declarations served before the essoign, or first general return day. R. G. T. T. i W. 4. 11th Rule.- The Rule of Court, that every declaration shall be entitled of the day of the month and year on which it is filed and delivered, does not apply to declarations in ejectmentb. Where the declaration was entitled, “In the Common Pleas, June 12, 1834," it was holden
g Doe d. Jones v. Jones, 10 B. and C.
718 h Doe d. Nicholl v. M‘Kaeg, 10 B. & C.
721. i Doe d. Turner v. Benallack, B. R. E.
10 G. 4.
a Bull. N. P. 98.
New Cases, 253.
sufficient, although it was urged, that it should have been entitled of some term, or if of a particular day, as of some term. 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, however, care and accuracy are necessary in framing this declaration; as, Ist, The venue must be laid in the county in which the lands lie ; for this is a local action. But where the venue stated in the body of the declaration was correct, it was holdend to be sufficient, although the county in the margin was wrong. 2nd, 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-tenantse or parceners (20), the declaration must allege a joint demise ; if tenants in common, a several demise by each of their several partsf (21). In the latter 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 d Doe d. Goodwin v. Roe, 3 Dowl. f Mantle v. Wollington, Cro. Jac, 168. (P. C) 323.
Fursden, Show. 342. e Bull. N. P. 107.
Heatherly v. Weston, 2 Wils. 232.
(20) 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 Holt, 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 joint-tenants must jointly implead, and jointly be impleaded by others, which property is common between thern and parçeners; and Holt's opinion is adopted in Buller's N. P. 107. It is corroborated by the following position in 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 Stedman v. Bates, Ld. Raym. 64. it was holden that parceners must join in an avowry for rent arrear.
(21) “ Declaration in ejectment was of a joint demise of A. and B., and on the evidence it appeared that they were tenants in com
third person, and then the declaration may state a demise by such lessee. 3rd, 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. The surrenderee of a copyhold estate, after admittance, may maintain an ejectment against the surrenderor, on a demise laid on a day between the time 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. 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 yearsh. Care should be taken that the term stated be long enough to admit of the plaintiff's recovering possession before it expires (22). 5th, If the ejectment be brought by a corporation aggregatei (23), an infant, or for tithesk, regularly the declaration ought to state that the demise was by deed; and in the case of the infant, it ought to
g Holdfast v. Clapham, 1 T. R. 600.
h Doe v. Porter, 3 T. R. 13.
mon; the plaintiff failed.” M. 3 Jac. Blackasper's case. Noy, n. 43. Hal. MSS. cited and recognized in Doe d. Poole v. Errington, 1 Ad. & El. 750. 3 Nev. & Man. 646, where S. P. was adjudged. See Noy, 13. cited in Hargrave's n. (7) 1 Inst. 45. a. But payment of rent to the agent of A., B., and C. is an admission that the party holds under A., B., and 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 Campb. 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 jointtenants, and as there was not any joint demise, the plaintiff could not recover, but Lord Ellenborough overruled the objection. See Worrall v. Beck, M. 8 Geo. 2. cited 1 Wils. l.
that some rent was reserved; but it is not necessary that the deed should be proved!. In ejectment for tithes the declaration used to set forth the nature of the tithem. 6th, With respect to the description of the thing demised, it may be observed, that 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 (24). 7th, The eject
i Carth. 390. This omission will be i Furley v. Wood, 1 Esp. N. P. C.
aided by verdict. Bull. N. P. 98. 198. Kenyon, C. J. k Swadling v. Piers, Cro. Jac. 613. m Bull. N. P. 99.
Omission cured by verdict, Partridge v. Ball, Ld. Raym. 136.
(22) 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 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 Lawler v. Murray, 1 Schoales and Lefroy's Rep. 81. n. (a).
(23) A corporation aggregate cannot make a lease for years without deed, in respect of the quality of the incorporation. i İnst. 85. a.
(24) 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
ment 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 appear on the face of the declaration, that the ouster was after the term commenced, and before action brought. It was formerly usual for the declaration in ejectment hy original, to repeat the whole of the original writ; but now, by a general rule of all the courtso, the rules heretofore made in the Courts of King's Bench and Common Pleas respectively, for avoiding long and unnecessary repetitions of the original writ in certain actions therein mentioned, shall be extended and applied, in the Courts of King's Bench, Common Pleas, and Exchequer of Pleas, to all personal and mixed actions; and, in none of such actions, shall the original writ be repeated in the declaration, but only the nature of the action stated in manner following: viz. “A. B. was attached to answer C. D. in a plea of trespass, or in a plea of trespass and ejectment, or as the case may be; and any further statement shall not be allowed in costs."
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 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. It is not necessary that there should be any date to the notice9. 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. Formerly, landlords, to whom a right of entry had accrued during or immediately after Hilary and
q Per Patteson, J. Doe d. Evans V..
Roe, 2 Ad. & Ell, 12,
n Merrell v. Smith, Cro. Jac. 311.
see above rule.
the party for what 10 acres the verdict was.-Portman v. Morgan, Cro. Eliz. 465. See also, to the same effect, Cottingham v. King, I Burr. 623. and Connor v. West, 5 Burr. 2673.