&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 thenceforth, for, and during, and unto the full end and term of seven years from thence next ensuing, 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 appurtenances, and became and was thereof possessed for the said last-mentioned term so to him thereof granted, as aforesaid. 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 appurtenances, 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. (Conclude as in first precedent, and add the like notice to appear.) DECLARATION IN EJECTMENT BY BILL IN K. B. year of the reign [*454] had demised to the said ), with the appurtenances, Ellenborough. Term, 9 Geo. 4. (Venue) (to wit.) John Doe complains of Richard Roe, being in the *custody of the marshal of the Marshalsea of our lord the now king, before the king himself, for that whereas A. B., on the — day of in the of our said lord the king, at the parish of in the county of John Doe 10 messuages, &c. (describe the premises, see ante situate and being in the parish aforesaid, in the county aforesaid, to have and to hold the same to the said John Doe and his assigns, from thenceforth, for, and during, and unto the full end and term of seven 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 possessed for the said term so to him thereof granted, as aforesaid; and the said John Doe, being so thereof possessed, the said Richard Roe, afterwards, to wit, on the -day of in the "" year aforesaid, with force and arms, &c., entered into the said tenements, with the appurtenances, in which the said John Doe was so interested, 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 king, and to the damage of the said John Doe of £50; and therefore he brings his suit, &c. Pledges to prosecute, John Denn, NOTICE TO APPEAR THERETO. Mr. C. D. I am informed that you are in possession of, or claim title to, the premises in this declaration of ejectment mentioned, or to 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 on (as ante, 452) in his majesty's Court of King's Bench, at Westminster, by some attorney of that court, and then and there, by rule of the same court, to cause yourself to be made deft. in my stead; otherwise I shall suffer judgment therein to be entered against me by default, and you will be turned out of possession. Dated this day of, A. D. 1828. Your's, &c. DECLARATION BY TENANTS IN COMMON. Richard Roe. The demise by tenants in common of an undivided share is the same as in other cases, except stating it to be "one undivided moiety or half part the whole into two equal moieties, to be divided of and in," and adding a count on the demise of the other tenant in common with the same words. C. D. PLEA OF GENERAL ISSUE. -Term, 9 Geo. 4. And the said C. D., by L. M., his attorney, comes and defends the force and injury, when, &c., and says that he is not guilty Doe, on the demise of A. B. of the supposed trespass and ejectment (or, if several ouslers 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. Evidence for Plaintiff. IN GENERAL. Plaintiff's Title.] Strict proof of title will be unnecessary, where a privity exists between the parties, as in the case of the common relationship of landlord and tenant, where the tenant is precluded from disputing his landlord's title: Driver v. Lawrence, 2 W. Bl. R. 1259, post, 464. In other cases, where no such privity exists, strict proof of title will be necessary. In cases where there is a privity between the parties, it will, in general, be sufficient to prove [*455] that the deft., or those under whom he claims, were admitted into possession of the premises by the lessor of the plt., and that their right to the possession has ceased: Adams, 247. It has been considered, that a party may be estopped from disputing the title of another in this action, by referring the question of the right to the land to an arbitrator, who has awarded in favour of the lessor of the plt. Doe v. Rosser, 3 East, 11; sed vide 15 East, 100. The plt. must, in all cases, prove that he has a legal title to the premises, at the time of the demise laid in the declaration; evidence of an equitable estate will not be sufficient: Goodtitle v. Jones, 7 T. R. 49; Doe v. Wroots, 5 East, 132; Roe v. Read, 8 T. R. 118. As to when trustees take the legal estate, see 2 Saund. 11; 2 Bla. Com. note, Chitty's ed. Plt. cannot rely upon the inadequacy of the deft.'s title, but must recover upon the strength of his own: Martin d. Tregonwell v. Strachan, 5 T. R. 110, n.; Graham v. Peat, 1 East, 246; Goodtitle d. Parker v. Baldwin, 11 ib. 488. Proof of an undisturbed adverse possession for twenty years, is sufficient presumptive evidence of title to recover in ejectment: B. N. P. 103; Barwick v. Thompson, 7 T. R. 488; Dean v. Bernard, 1 Cowp. 597; Stokes v. Berry, Salk. 421; 1 Ld. Raym. 741, s. c.; Goodtitle d. Parker v. Baldwin, 11 East, 488; Taylor v. Horde, 1 Burr. 119; 2 Saund. 175, n. As to what constitutes such adverse possession, see post. Right of Entry.] The plaintiff must also prove that his legal estate was accompanied by a right of entry on the premises at the time of the demise laid in the declaration. Proof of his being entitled to this right of entry at the time of the demise laid will be sufficient, although such right be divested before trial: 11 East, 488. Whatever takes away this right of entry, takes away also the remedy by ejectment, although the legal estate still remains in the claimant: Adams, 34. A right of entry may be destroyed or taken away by the Statute of Limitations, by descent, or by discontinuance, as to which, see post. If the plt. comes within any of the exceptions in the statute, or has any answer to a defence of this nature, he should be prepared with proofs accordingly: post. Actual Entry, when necessary.] An actual entry must be proved, to avoid a fine levied with proclamations, Oates v. Brydon, 3 Burr. 1897, Doe v. Watts, 9 East, 19, Barrington v. Parkhurst, 2 Str. 1086, 13 East, 489, s. c.; but not so where the fine is levied without proclamations, Jenkins v. Pritchard, 2 Wils. 45; or if the proclamations be made after the commencement of the action, Doe v. Watts, 9 East, 19; and, in general, if the action be commenced within twenty years, no entry seems necessary, though, if the twenty years be near expiring, it is said to be a prudent measure to make an entry; "for, in the case of an actual entry before the expiration of twenty years, it seems that an ejectment may be brought after; or, if the plt. should fail in the ejectment, whether brought within twenty years or after, he may bring another, provided the ejectment in these cases is commenced within a year after such actual entry made; according to 4 Anne, c. 16, s. 16:" 1 Saund. 319, f.; Doe d. Lee Compere v. Hicks, 7 T. R. 433. No entry is necessary, where the fine has been levied by a mere tenant for years, 18 Vin. 413, Peaceable v. Read, 1 East, 575; nor where the son of a tenant by sufferance holds over, Doe v. Perkins, 3 M. & S. 271; nor is it necessary, where the action is brought on a clause of re-entry for non-payment of rent, Goodright v. Cator, Dougl. 477; the entry need not be made by the party claiming; if it be done by some person under his authority, it will be sufficient, Co. Lit. 258, Podger's case, 9 Co. 106, even though the entry be made without consent of the claimant; yet a subsequent ratification will make it good, ib.; indeed, the bringing the action of ejectment will be evidence of assent: B. N. P. 103. Such assent must, however, be within five years after entry made: Co. Lit. 245; Fitchet v. Adams, Str. 1128. The entry *must be made upon the land claimed, and it will not be [*456] sufficient to make the claim at the gate of the house, unless such gate be upon part of the land, B. Ñ. P. 103, Focus v. Salisbury, Hurd, 400, Anon. Skin. 412; but, if an actual entry is prevented, the claim may then be made as near the land as it conveniently may: Co. Lit. 253. An entry generally, or on part of the lands, is an entry upon the whole, unless it be defined otherwise, 1 Saund. 319, Doe d. Tarrant v. Hellier, 3 T. R. 170; though, if the lands are situate in different counties, there must be an entry for each county, Lit. S. 417, Adams, Eject. 92; and it must be made with the intention of claiming the land; so, it was held an insufficient entry, where the lessor's intention was to make the demise, and not for the purpose of avoiding the fine: Berrington d. Dormer v. Parkhurst, Str. 1086; 13 East, 489, s. c. Where tenant for life levies a fine, though it is no bar to those in remainder, yet it seems that a remainder-man must make an actual entry before he can maintain an ejectment: Doe d. Compere v. Hicks, 7 T. R. 433. If one of two tenants in common of a reversion levy a fine of the whole, such fine does not require an actual entry by the other tenant in common to avoid it: Roe d. Touscott v. Elliot, 1 B. & A. 85. In the case of a vacant possession (that is, where the premises are wholly deserted by the tenant, and he cannot be found, in order to be served with a declaration in ejectment), an actual entry must first be made upon some part of the premises: see the mode of so doing, with the other requisites, 2 Archb. P. 59. Identity of Premises, and Deft.'s Possession of them.] Since the rules of M. T., 1 G. 4, K. B. and H. T., 1 and 2 G. 4, C. B., this is no longer necessary. Quære, if it be now necessary, since those rules, to prove the local situation of the premises, as described in the declaration. Where the deft. has obtained particulars of the premises sought to be recovered, plt. cannot travel out of them. Actual Ouster.] The common consent-rule will now, in general, be sufficient evidence of the deft.'s ouster, or forcible dispossession: 3 Burr. 1895; 1 Camp. 173. In an action, however, by one joint-tenant parcener, or tenant in common, against his companion, where the latter has entered into a special consent-rule, not absolutely confessing an ouster, such ouster should be proved. Where one tenant in common held possession, absolutely and solely, for thirty-six years, without any account to, demand made, or claim set up by his companion, it was held sufficient evidence of an ouster, Doe d. Fisher v. Prosser, Cowp. 217; but the bare perception of the profits by one tenant in common, is not sufficient to afford presumption of an ouster: Fairclaim d. Fowler v. Shackleton, 5 Burr. 2604. Where there were two joint-tenants, and one went out at the request of the other, it was held to be an ouster, Vin. Ab. v. 14, 512; and so a demand of possession by one tenant in common, and a refusal by the other, stating that he claimed the whole, is evidence of an ouster of his companion: Doe d. Hellings v. Bird, 11 East, 49; Cowp. 217. One tenant in common levying a fine of the whole, and taking the rents and profits afterwards, without accounting for nearly five years, is no evidence of an ouster of his companion at the time of the fine levied: Peaceable d. Hornblower v. Read, 1 East, 568, 574. Adverse holding over the possession of the premises, contrary to the terms of the tenancy, is full presumptive evidence of an actual ouster: Taylor v. Fisher, Lofft, 766. Damages.] In ordinary cases, the damages are merely nominal; the damages actually sustained by the detention of the property, &c., being usually recovered in an action of trespass for mesne profits: post, "Mesne Profits." But, in ejectment by landlord against tenant, whe[*457] ther the deft. *appear at the trial or not, the plt., after proof of his right to recover possession of the whole, or any part of the premises, may proceed to give evidence of the mesne profits thereof, which shall have accrued from the day of the determination of the tenant's interest down to the time of the verdict, or to some preceding day, to be specially mentioned therein; and the jury shall thereupon give their verdict, both as to the recovery of the premises, and as to the amount of the damages to be paid as mesne profits: 1 G. 4, c. 87, s. 2; 2 Archb. 55. If the plt. wish to recover the mesne profits from the time of the verdict down to the time when possession is delivered to him, he may afterwards proceed for it by action of trespass for mesne profits, ib.: as to the evidence of damages, post, "Mesne Profits." BY HEIR. By Heir of Freehold.] When an heir at law maintains this action, he must prove that the ancestor, or person from whom his title springs, was the person last seised of the premises, Jenkins d. Harris v. Prichard, 2 Wils. 47; and that he is the heir, either lineally or collaterally descended: 2 Bl. Com. 208; Higham v. Ridgway, 10 East, 120. İf he be heir to a remainder-man, he must show that his ancestor was the person in whom the remainder was first vested by purchase: 3 Rep. 42, a. The seisin of the ancestor may be shown by the fact of his having been in possession; for possession alone is prima-facie evidence of a seisin in fee: B. N. P. 103. The seisin may also be proved by showing the ancestor was in the receipt of the rent from the tertenant: ib.; Jayne v. Price, 4 Taunt. 326; and see 3 B. & C. 298. The possession of a guardian in socage confers an actual seisin in the infant: 3 Wils. 516. Where A. dies seised, having two infant daughters by different venters, an entry by the mother of the youngest daughter, as her guardian in socage, constitutes a sufficient seisin in the eldest daughter to carry the descent of her moiety, on her death, to her heirs: Doe d. Bennett v. Keen, 7 T. R. 386. If a father die, his estate being out at a freehold lease, that is not such a possession as to induce the possessio fratris, unless the elder son live to receive rent after the expiration of such lease, but it has always been the settled rule, that if the father die, leaving his estate out on a lease for years only, the possession of the tenant is so far the possession of the elder son as to constitute the possessio fratris: p. Ld. Kenyon, C. J.; ib. The seisin may be proved by the declaration of a deceased tenant, that he held under the ancestor: Uncle v. Watson, 4 Taunt. 16. If it be probable deft. can rebut plt.'s prima-facie case of seisin, strict proof of the ancestor's title had better be adduced. 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 himself and the person last seised, from some common ancestor, or at least, from two brothers or sisters, Roe d. Thorne v. Lord, 2 W. Bl. R. 1099; 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 showing the identity of the several parties: Adams, 250. The plt. must prove that all the intermediate heirs between himself and the ancestor, from whom he claims, are dead, without issue: Richards v. Richards, 15 East, 294, n. It is a maxim, 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: Wilson v. Hodges, 2 East, 312; ante, "Death." 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 proving facts of this nature, post, "Parish Register," "Hearsay Evidence," "Public Documents;" and, when the claimant is the lineal descendant of the person last seised, but little difficulty can arise in procuring the necessary proofs. But, when he claims as collateral heir, and it is necessary to trace the relation- [*458] ship between him and the person last seised, 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 relaxed those rules in inquiries of this nature, and allow hearsay and reputation (which latter is the hearsay 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: Higham v. Ridgway, 10 East, 120; Adams, 251; post," Pedigree," "Hearsay Evidence." But hearsay evidence of a |