rits. The rule was "wisely established for attain

ing justice with ease, certainty, and dispatch;" because, when the plaintiff had made his lease upon the land, any third person who came thereon, animo possidendi, was in strictness of law an ejector: when any other ejector, therefore, was placed in his stead, it was but reasonable that the court should impose terms upon him; namely, that he should not stand on the proof of the demise, the actual entry, or the ouster; which were no other than mere forms, to bring the title in question; and it was not fit that the plaintiff should be nonsuited for want of proving the formal demise set forth in the declaration, when the casual ejector might have let judgment pass by default. In truth, the meaning of confessing lease, entry, and ouster, is to bring the matter to the mere question of the plaintiff's possessory title: and as the obvious end of the rule is to "do justice," the court is astute, to see that end substantially attained (a): though previous to stat. 11 Geo. 2. c. 19. it would not compel the tenant to defend, notwithstanding his landlord had offered to indemnify him: but under particular circumstances, as between joint-tenants, tenants in com→ mon, and coparceners, or persons holding under them, the confession of ouster is sometimes dispensed with, on special application to the court for that purpose.

(a) Allen v. Robinson, Styl. 368. Sid. 24. Fairclaim, ex dem. Fowler v. Shamtitle, Burr, 1294.

1 Black. 360. Rex v. Phillips, Burr. 301. Oates, ex dem. Wigfall v. Bryden & al. Burr. 1896,

11. For

FOR WHOM, &c. AN EJECTMENT LIES, &c. 21

II. For whom, and in what cases, an ejectment lies; and of the right of entry.

THOUGH it be true that the action of ejectment has been long considered with the greatest liberality, and with the utmost latitude, "so as to answer in the best

manner every end of justice and convenience," yet there is one principle which must uniformly be attended to; namely, that "the plaintiff cannot recover "but upon the strength of his own title," and cannot, of course, found his claim upon the weakness of the defendant's. For possession gives the defendant a right against every man who cannot shew a legal title: the party therefore who would change the possession, must first establish a legal title to it (a).

In short, the plaintiff must recover on a legal title: a principle which has received additional authority from the determination of the case of Hodsden v. Staple (b). In that case the declaration consisted of three counts, on three different demises. On the trial a special verdict was found, stating (among other facts), that on 23d August, 1758, Richard Staple, deceased, was seised of the premises in tail general, subject to a term of ninety-nine years, outstanding in A. Culver, in trust for securing four several life-annuities to Sarah Dixie, Joseph Core, Mary Curwen, and Mary Day; which term was determinable on the death of the sur

(a) The Queen v. The Corporation of Buckingham, 10 Mod. 177. Roe, ex dem. Haldane & al. v. Harvey, Burr. 2487. Roe, d. Crow v. Baldwere, 5 T. R. 110.

(b) 2 T. R. 684. See also Goodtitle, d. Jones v. Jones, 7 T. R. 47. Doe, d. Da Costa v. Wharton, 8 T. R. 2.

vivor of the annuitants, and, subject to the annuities, was limited, in trust, to attend the inheritance; the reversion being vested in Catherine Culver, who afterwards married James Hibbins, and on 7th April, 1759, died, without issue, in the life-time of her husband and of the said Richard Staple, leaving Mary Brazier (who afterwards died in the life-time of Richard Staple) and Richard Hodsden, the lessor of the plaintiff, her co-heirs. On the 9th of October, 1768, Richard Staple died without issue, leaving only one of the annuitants, Sarah Dixie, surviving him. On his death James Hibbins entered, claiming the premises under an agreement and will of his wife, subject to the annuity to Sarah Dixie. On the 7th of October, 1777, James Hibbins died, having devised the premises to James Lloyd. After his death Lloyd entered, claiming title, subject to the annuity. On the 14th of November, 1786, Sarah Dixie died, nine years determined. Richard Staple, James Hibbins, and James Lloyd, regularly paid the annuity; and the trust of the term was satisfied at the time of the death of Sarah Dixie. The special verdict then stated, that Richard Hodsden, after the death of Richard Staple, to wit, on the 9th of October, 1768, as heir of Catherine Culver, claiming title to the premises, subject to the annuity payable to Sarah Dirie, entered and ejected James Hibbins, and was seised of the premises; and being so seised, demised to the plaintiff as mentioned in the first count; by virtue whereof the plaintiff entered, and was possessed, till the defendant, as servant of James Hibbins, ejected him. That the said Richard Hodsden, after the deaths of Staple and Hibbins, to wit, on the 5th of November, 1777, mentioned in the second count, entered and ejected Lloyd, was

and the term of ninety

seised subject to the annuity, and demised to the plaintiff, who entered, and was possessed till the defendant, as servant of Lloyd, ejected him. That Hodsden, after the death of Staple and Hibbins, and after the determination of the trust term, to wit, on the 12th of November, 1787, entered and ejected Lloyd, was seised and demised to the plaintiff, who entered and was possessed, till the defendant, as servant to Lloyd, ejected him.

Though the plaintiff was legally entitled to recover, yet a material question arose, namely, on which of the counts judgment should be given in his favour. It became important therefore to attend to the different dates of the demises, as stated in the different counts of the declaration. The first demise was laid on the 10th of October, 1768, being the day after the death of Richard Staple, the tenant in tail; upon whose death the reversion which had been vested in Mrs. Culver the testatrix, vested in possession, subject to the remaining annuity to Mrs. Divie. The second was on the 16th November, 1777, a short time after the death of Hibbins, adapted to the title of the lessor of the plaintiff, in case H. should be thought entitled to an estate for life, and the term for securing the annuities not to be deemed a bar. The third was on 12th November, 1787, subsequent to the death of the last annuitant, and the determination of the term.-Lord Kenyon, as to this question, said-We must remember that we are in a court of law. I extremely approve of what was said by Lord Mansfield in the case of Lade v. Holford (a), that he would not suffer a plaintiff in ejectment to be nonsuited, by a term outstanding

(a) Burr. 1416. 2 Black. 428. Bull. Ni. Pri. 110.

in his own trustee; or a satisfied term set up by a mortgagor against a mortgagee, but would direct the jury to presume a surrender: and when a surrender is presumed, there is an end of the legal title created by the term. But here the facts of the case preclude any. such presumption. There was an existing term at the several times of the two first demises laid in this declaration, and a considerable benefit was to be derived out of it. The last annuitant did not die till after the time of the second demise; therefore there is no reason to presume that the trustees had surrendered; and they would have been personally liable if they had, Supposing two ejectments had been brought at the same time, before the death of the last annuitant, the one by the trustees of the term, and the other by the present lessor of the plaintiff; the judge could not have directed the jury to find for both; but the trus tees must have recovered, for they would have shewn a legal title. The jurisdiction of this court, in eject, ment, is confined to legal titles, taking care that they do not intrude on the rules of law, nor discuss equitable titles. In real actions there is no doubt but that the party must state a legal title on the record; then it would be absurd that, respecting the manor of Dale, on a special verdict in formedon, the decision must necessarily be given according to the strict legal title; and that respecting the manor of Sale, on a special verdict in ejectment, there must be a contrary judgment, In this case it is impossible to suppose there was a surrender of the term, or that it was satisfied, because the verdict finds the contrary fact. Therefore the Court, (dissentiente Buller, Justice,) was of opinion that judgment should be given only on the last count in the declaration, after the death of the last annuitant,

So