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with the tenant of the land, all tenants are obliged by statute 11 Geo. II. c. 19. on pain of forfeiting three years rent, to give notice to their landlords, when ferved with any declaration in ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, though judgment must be then figned against the casual ejector, yet execution shall be stayed, in cafe the landlord applies to be made a defendant, and enters into the common rule; a right, which indeed the landlord had, long before the provision of this ftatute: in like manner as (previous to the ftatute of Weftm. 2. c. 3.) if in a real action the tenant of the freehold made default, the remainder-man or reverfioner had a right to come in and defend the poffeffion; left, if judgment were had against the tenant, the eftate of those behind fhould be turned to a naked right". But if the new defendants, whether landlord or tenant, or both, after entering into the common rule, fail to appear at the trial, and to confess lease, entry, and oufter, the plaintiff Smith must indeed be there nonfuited, for want of proving thofe requifites; but judgment [205] will in the end be entered against the cafual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant is broken, and therefore the plaintiff is put again in the fame fituation as if he never had appeared at all; the confequence of which (we have feen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered poffeffion to Smith. The fame process therefore as would have been had, provided no conditional rule had been ever made, must now be pursued as foon as the condition is broken (3).

Styl. Pract. Reg. 108. 111. 265. 7 Mod. 70. Salk. 257. Burr. 1301.

w Bracton. l. 5. c. 10. § 14.

(3) Where an ejectment is defended merely to continue the poffeffion of the premises, and no defence is made at the trial, the practice is for the cryer of the court, firft, to call the defendant to

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Book III. THE damages recovered in these actions, though formerly their only intent, are now ufually (fince the title has been confidered as the principal queftion) very small and inadequate; amounting commonly to one fhilling, or fome other trivial fum. In order therefore to complete the remedy, when the poffeffion has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mefne profits which the tenant in poffeffion has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his leffor, against the tenant in poffeffion: whether he be made party to the ejectment, or fuffers judgment

confefs leafe, entry, and oufter, and then the plaintiff, as in other cases of nonfuits, to come forth or he will lofe his writ of nift prius.

Though in this cafe the judgment is given against the cafual ejector, yet the cofts are taxed as in other cafes, and if the real defendant refuses to pay them, the court will grant an attachment against him. Salk. 259.

In like manner if there be a verdict for the defendant, or the nominal plaintiff be nonfuited without the default of the defendant, the defendant muft tax his cofts, and fue out a writ of execution against the nominal plaintiff; and if, upon ferving the leffor of the plaintiff with this writ and a copy of the rule to confess lease, entry, and oufter, the leffor of the plaintiff does not pay the costs, the court will grant an attachment against him. 2 Cromp. Pract. 214. In ejectment the unfuccefsful party may re-try the fame question as often as he pleafes without the leave of the court; for by making a fresh demife to another nominal character, it becomes the action of a new plaintiff upon another right, and the courts of law cannot any farther prevent this repetition of the action, than by ordering the proceedings in one ejectment to be stayed till the cofts of a former ejectment, though brought in another court, be difcharged. 2 Bl. Rep. 1158. Barnes, 133. But a court of equity, in fome inftances where there have been feveral trials in ejectment for the fame premises, though the title was entirely legal, has granted a perpetual injunction. 1 P.W.672.

to go by default. In this cafe the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued fince the date of the demife ftated in the former declaration of the plaintiff; but if the plaintiff fues for any antecedent profits, the defendant may make a new defence (4).

SUCH is the modern way of obliquely bringing in queftion the title to lands and tenements, in order to try it in this collateral manner; a method which is now univerfally adopted in almost every cafe. It is founded on the fame principle as the antient writs of affize, being calculated to try the mere poffefory title to an eftate; and hath fucceeded to those real actions, as being infinitely more convenient for attaining the end of juftice: because the form of the proceeding being en- [206] tirely fictitious, it is wholly in the power of the court to direct the application of that fiction, fo as to prevent fraud and chicane, and evifcerate the very truth of the title. The writ of ejectment and it's nominal parties (as was refolved by all the judges) are "judicially to be considered as the fictitious "form of an action, really brought by the leffor of the plain"tiff against the tenant in poffeffion: invented, under the "control and power of the court, for the advancement of "justice in many respects; and to force the parties to go to "trial on the merits, without being intangled in the nicety "of pleadings on either fide."

BUT a writ of ejectment is not an adequate means to try the title of all eftates; for on those things, whereon an entry cannot in fact be made, no entry fhall be fuppofed by any fiction of the parties. Therefore an ejectment will not lie of an advowson,a rent, a common, or other incorporeal hereditay Mich. 32 Geo. II. 4 Burr. 668.

* Burr, 668.

(4) The defendant may plead the ftatute of limitations, and by that means protect himself from the payment of all mefne profits, except those which have accrued in the laft fix years. Bull. N. P. 88.

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ment: except for tithes in the hands of lay appropriators, by the exprefs purview of ftatute 32 Hen. VIII. c. 7. which doctrine hath fince been extended by analogy to tithes in the hands of the clergy: nor will it lie in fuch cafes, where the entry of him that hath right is taken away by defcent, difcontinuance, twenty years difpoffeffion, or otherwife.

THIS action of ejectment is however rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by ftatute 4 Geo. II. c. 28. which enacts, that every landlord, who hath by his lease a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no fufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the fame upon fome notorious part of the premises, which fhall be valid without any formal re-entry or previous demand of rent. And a recovery in fuch ejectment fhall be final and conclufive, both in law and equity, unless the rent and all cofts be paid or tendered within fix calendar months afterwards (5).

2. THE writ of quare ejecit infra terminum lieth, by the antient law, where the wrongdoer or ejector is not himself in poffeffion of the lands, but another who claims under him. As where a man leafeth lands to another for years, and, after the leffor or reverfioner entereth, and maketh a feoffment in fee, or for life, of the fame lands to a ftranger: now the leffee cannot bring a writ of ejectione firmae or ejectment against the feoffee; because he did not eject him, but the reverfioner: neither can he have any fuch action to recover his term against the reverfioner, who did ouft him; because he is not now in poffeffion. And upon that account this writ was devised, upon the equity of the ftatute Weftm. 2. c. 24. as in a cafe Brownl. 129. Cro. Car. 492. Stra. 54. a Cro. Car. 301.2 Lord Raym. 789.

(5) A devifee, although he has never been in poffeflion, has been permitted to defend as a landlord under this statute, 4 11. c. 28. T.R, 122.

Geo.

where

where no adequate remedy was already provided. And the action is brought against the feoffee for deforcing, or keeping out, the original leffee during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover fo much of the term as remains; and also shall have actual damages for that portion of it whereof he has been unjustly deprived. But fince the introduction of fictitious oufters, whereby the title may be tried against any tenant in poffeffion, (by what means foever he acquired it,) and the fubfequent recovery of damages by action of trespass for mesne profits, this action is fallen into difufe.

b F. N. B. 198.

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