6 Bingh. 390. An executor who takes a pecuniary interest under a will is competent to support it, for the verdict will only have the effect of establishing the will as to the real property. Doe v. Teage, 5 B. and C. 335. So a grantee who is a bare trustee is competent to prove the execution of a deed to himself. Goss v. Tracey, 1 P. Wms. 287, 290; see ante, p. 85. Where a witness on the voir dire stated that the lessor of the plaintiff had formerly assigned to him the premises in ques tion for a particular purpose, but that he had given up the deed to the lessor of the plaintiff, and had never had possession, he was held incompetent. Doe v. Bragg, R. and M. 87,

Defence.

The defendant, by way of defence, may show the title in himself or a third person, or that the lessor of the plaintiff has no right of entry. Thus he may prove the creation and exist. ence of an outstanding term, though vested in a trustee for the lessor of the plaintiff, unless the circumstances are such that a surrender can be presumed, ante, p. 325. The entry of the lessor of the plaintiff may be taken away by the statute of limitations, by disseisin and descent, or by discontinuance.

Where a party defends an ejectment as landlord, and the occupiers of the premises have suffered judgment by default, he cannot object that the occupiers have not received notice to quit from the lessors of the plaintiff. Doe v. Creed, 5 Bingh.

327.

Entry barred by the statute of limitations.] In order to render the statute of limitations a bar in ejectment, the defendant must prove an adverse possession for twenty years. There is no adverse possession in the following cases: 1. Where the possession of the party in possession is the possession of the lessor of the plaintiff, as where a younger son enters by abatement on the death of his father, and dies seised, this possession is not adverse to the title of his elder brother. Co. Litt. 243, a. So the possession of one coparcener, jointenant, or tenant in common, is not adverse to the title of his co-tenant. Ford v. Grey, 6 Mod. 44. See Doe v. Halse, 3 B. and C. 757; unless there has been an actual ouster, ante, p. 329. 2. There is no adverse possession where the estate of the party in possession, and that of the lessor of the plaintiff, form parts of one and the same estate. Thus the possession of the particular tenant is never adverse to the title of him in remainder or reversion. Taylor v. Horde, 1 Burr. 60. Fisher v. Prosser, Cowp. 218. See also Doe v. Brightwen, 10 East, 583. Where the relation of landlord and tenant can be implied, the statute will not run, Roe v. Ferrars, 2 B. and P. 542; nor where the party in possession is tenant at sufferance. Doe v. Hull, 2 D.

and R. 38. 3. There is no adverse possession where the relation of trustee and cestui que trust subsists between the parties. Keene v. Deardon, 8 East, 248.

Where interest has been paid upon a mortgage, it will prevent the statute from running against the mortgagee, though he has been out of possession for more than twenty years, for the payment of interest is conclusive evidence of a continuing tenancy between the mortgagor and mortgagee. Hatcher v. Fineur, 1 Ld. Raym. 740. Hail v. Doe, 5 B. and A. 690.

If a cottage be built on the lord's waste in defiance of him, twenty years undisturbed possession of such cottage will be a bar to the lord; but if built at first with the lord's permission, or if any acknowledgment have been since made, the statute will not run. Thus where the defendant had inclosed a small piece of waste land by the side of a highway, and had occupied it for thirty years without paying any rent, but at the expiration of that time, the owner of the adjoining land demanded 6d. rent, which the defendant paid on three several occasions, it was held that these payments, in the absence of other evidence, were conclusive to show that the defendant's occupation began by permission, and that the owner of the adjoining land was entitled to recover. Doe v. Wilkinson, 3 B. and C. 413. In a similar case, after a possession of upwards of twenty years, the lord demanded and obtained possession, which was reluctantly given; and the occupier was told, that if he resumed possession, it would only be during pleasure. He did resume possession, and remained in for fifteen years more; and though he never paid any rent, it was held that this was not necessarily an adverse possession, but might be presumed to have commenced with the lord's permission. Doe v. Clark, 8 B. and C. 717. It appears not to be decided whether twenty years' possession of premises, which a tenant has gained by encroachment on the lord's waste, will be a bar in an ejectment brought for such premises by his lessor, after the expiration of the tenancy. Perryn, B., and Heath and Buller, justices, are said to have ruled that the lessor was entitled to recover; see Doe v. Davies, 1 Esp. 461; and Graham, B., ruled the same way, Bryan v. Winwood, 1 Taunt. 208; while Lord Kenyon has laid it down as clear law, that if a tenant inclose part of a waste, and is in possession thereof so long as to acquire a possessory right to it, such inclosure does not belong to the landlord; but if the tenant has acknowledged that he held such inclosed part of his landlord, this would make a difference. Doe v. Mulliner, 1 Esp. 460. Thompson, B., also inclined to the same opinion, but refused to nonsuit the landlord, out of deference to the authorities cited for the plaintiff. Doe v. Davies, 1 Esp. 461; and see Attorney Gen. v. Fullerton, 2 Ves. and Beames, 263.

When the statute has once begun to run, no subsequent

disability will stop its operation. The saving clause only extends to the persons to whom the right first descends. Doe v. Jones, 4 T. R. 310. It was held in Doe v. Jesson, 6 East, 80, that the word death in the saving clause of the statute referred to the death of the person to whom the right first accrued, and who died under disability, and that the heir, though under disability, must enter within ten years from that time, but in a later case the court of C. P. were of opinion that the heir has ten years, after his own disability ceases; Cotterell v. Dutton, 4 Taunt. 826; which is said to be the construction invariably adopted in practice. Sugd. V. and P. 334. If an estate descends to parceners, one of whom is under a disability, which continues more than twenty years, and the other does not enter within twenty years, the disability of the one does not preserve the title of the other, atter the twenty years elapsed. Doe v. Rowlston, 2 Taunt. 441.

Right of entry barred by disseisin and descent cast.] The defendant may prove that the entry of the lessor of the plaintiff is barred by a disseisin, by the peaceable possession of the land for five years next after such disseisin, according to statute, 32 H. VIII. c. 33, and by a descent cast. He must prove a wrongful ouster of the party, by entry, and expressly claiming the freehold, or taking the profits. Anon. 1 Salk. 246. He must prove such an act that an intention to disseise may be inferred from it. Blunden v. Baugh, Cro. Cur. 304. Jerrett v. Weare, 3 Price, 575. Williams v. Thomas, 12 East, 141. There are many cases in which a descent cast will not toll an entry, as in case of incorporeal hereditaments. Co. Litt. 237,

a.

So where the ancestor and heir are not seised of the same estate. Ibid. 238, b. Escheat and succession have not the effect of a descent. Ibid. 239, b. 250, a. The entry is not tolled where the descent is not immediate, as where a tenancy by the curtesy intervenes. Litt. s. 394. So where the descent has been avoided, as by the seisin of a dowress. Ibid. s. 393. So where the party who has the right was an infant at the time of the descent, ibid. s. 402; or a feme covert, ibid. s. 403; or non compos, ibid. s. 405; nor is it tolled in the case of a devisee; Co. Litt. 240, b; nor in case of a condition broken, ibid, 339, b; nor is the entry of tenant for years, Litt. s. 411; or other person having a chattel interest; Co. Litt. 249, a; tolled by a descent cast.

Right of entry barred by discontinuance.] If the action is brought by tenant in tail, or by one in remainder or reversion after an estate tail, the defendant may show that the estate tail has been discontinued, which has the effect of taking away the entry of the tenant in tail, remainderman or reversioner. Co. Litt. 323, a. In order to prove a discontinuance

the defendant must show that the party discontinuing was tenant in tail in possession. Litt. s. 658, Doe v. Jones, 1 B. and C. 238. He must then prove in the usual manner the instrument by which the discontinuance was created, whether a feoffment, fine, common recovery, or release or confirmation with warranty. Co. Litt. 325, a.

Execution.

By stat. 1 W. 4, c. 70, s. 38, the judge is authorized in all cases of trials of ejectments, where the verdict shall pass for the plaintiff, or he shall be non-suited for want of the defendant's appearance to confess lease, entry, and ouster, to certify on the back of the record that a writ of possession ought to issue immediately, and such writ shall thereupon issue.

REPLEVIN.

THE evidence in the action of replevin varies according to the nature of the issue joined.

In some cases the defendant is allowed by statute to plead not guilty, or, in a general form, that the matter complained of was done under the authority of an act of parliament, and to give the special matter in evidence under such plea; as by 43 Eliz. c. 2, s. 19, in the case of poor-rates, and by 23 Hen. VIII. c. 5, s. 11, in the case of sewers' rates. 1 Saund. 347, c (n).

Evidence on non cepit.] The place in which the goods are alleged in the declaration to have been taken is material and traversable. Weston v. Carter, 1 Sid. 10. And the plea of non cepit, that the defendant did not take the cattle, &c., is termed the general issue in replevin. It lies upon the plaintiff to prove this issue, and if found for the defendant it merely excuses him from damages, but does not entitle him to a return. It is sufficient for the plaintiff upon this issue to show that the defendant had the goods in his possession in the place in which, &c., for the wrongful taking is continued in every place in which he afterwards detains them. Walton v. Kersop, 2 Wils. 354. If in fact the defendant neither took the cattle in the place named, nor had them there afterwards, he should plead cepit in alio loco, and entitle himself to a return by adding an avowry or cognizance, which in that case is not traversable. Anon. 1 Vent. 127, B. N. P. 54.

Avowry.] The defendant usually avows or makes cogni zance, in order to obtain a return of the goods, to which avowry or cognizance the plaintiff pleads in bar. The proofs under the most usual pleas in bar will be stated.

Where the distress has been for rent, it is enacted by 17 Car. II. c. 7, s. 2, that in case the plaintiff shall be nonsuited. after cognizance, or avowry made, and issue joined, or if a verdict shall be given against the plaintiff, then the jurors who were empanelled or returned to inquire of such issue, shall at the prayer of the defendant inquire concerning the sum of the arrears, and the value of the goods or cattle distrained; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, &c. The avowant, therefore, must be prepared to prove both the amount of the rent in arrear and the value of the goods or cattle taken, and the omission of this inquiry cannot be supplied by a writ of inquiry; Sheape v. Culpepper, 1 Lev. 255, 1 Suund. 195, b (n); though the defendant may have the common law judgment for a return. Rees v. Morgan, 3 T. R. 349.

If the defendant avows for rent and that the goods were fraudulently removed, &c., under 11 Geo. II., and the plaintiff pleads in bar no fraudulent removal, the defendant must show that there was no sufficient distress on the premises. Purrey v. Duncan, 1 M. and M. MSS.

Evidence on plea of non demisit or non tenuit.] To an avowry for rent-arrear, the plaintiff usually pleads non demisit or non tenuit, upon which issue the defendant must prove the demise as stated in his avowry. He must prove a demise, and therefore if he only shows an agreement for a lease, it is insufficient. Dunk v. Hunter, 5 B. and A. 322. But though the plaintiff enters upon the land under an agreement for a lease, in which the amount of the rent is not stated, yet if he occupies and pays rent, he becomes tenant from year to year at that rent, and an avowry, stating the terms of the tenancy accordingly, will be sufficient. Knight v. Bennet, 3 Bingh. 361. So if, entering under such an agreement he acknowledges half a year's rent to be due, Cox v. Bent, 5 Bingh, 185, supra; and see Saunders v. Musgrove, 6 B. and C. 524. The terms of the tenancy must be proved as laid, and therefore if the rent reserved was higher than the rent stated, it is a fatal variance, for the contract must be truly stated. Brown v. Sayce, 4 Taunt 320. But where the defendant avowed for taking growing corn in four closes, and stated that the plaintiff held the closes in which, &c., at a certain yearly rent, and it appeared that he also held two other closes at that rent, this was decided to be no variance, for every part of the land was liable to the whole rent. Hargrave v. Shewin, 6 B. and C. 34, 9 D. and R. 20, S. C.; and see Page v. Chuck, 10 B. Moore, 264, Philpott v. Dobbinson, 6 Bingh. 104. The defendant cannot under an avowry for double rent under the statute 11 Geo. II. c. 19,