CHAP. IX. OF THE EVIDENCE IN THE ACTION OF EJECTMENT. Part II. Entry. SECTION I. Of the Plaintiff's Evidence in general. N the Action of Ejectment the defendant IN is obliged, on his being permitted to defend, to enter into a rule to confess the formal and fictitious part of the case, viz. the lease to the plaintiff; that he entered into possession of the premises; and that the defendant ousted him. Under this condition he is permitted to plead the general issue; and on that plea the title of the parties is the only matter in controversy. But as this is a possessory action, the plaintiff must prove such a title in his lessor as authorises him to enter into the land; for where his right of entry is taken away, or tolled, as the legal expression is, and his title. turned to a naked right of action, a real action, and not an ejectment is the proper remedy. (1) In (1) It is foreign to the plan of the present Work to enter into a discussion of the abstruse and intricate doctrine of discontinuance, 1 Entry. In all cases where the party may by entry Ch.IX.f.1. alone acquire the legal possession of lands, or, as Lord Mansfield said, where entry is only necessary to complete his own title, he may Dougl. maintain an ejectment without any proof of an 484actual entry by him, for as by the ancient practice of ejectment, before the consent rule was adopted, it was necessary for the lessor of the plaintiff to enter on the land, and there seal a lease; the confession of such lease, according to the modern practice, includes in it all necessary formalities, and, amongst others, the entry into the land for that purpose. But when a fine with proclamations has been levied by a person in adverse possession of the land, and having a freehold in it, whether legal or tortious, this fine entirely devests the estates of every other person until it is regained by one of the means pointed out by the Statute 4 H. 7. c. 24. This may be done in the instances of a fine levied by a mere tenant for life, or one who has only a tortious estate, (m) either by commencing a real action, or making an entry, for the express purpose of avoiding the fine, provided this be done within continuance, disseisin, and descents; but it may not be improper to refer the reader to 3 Bl. Com. ch. 10. Taylor dem. Atkins v. Horde, 1 Burr. 60; and Runnington's Treatise on Ejectment, 42 to 58, for instruction on this point. (m) If tenant in tail levy a fine, the remainder-man can avoid it only by real action; Moore v. Blake, Runnington's Ejectment, 45, vide Bul. N. P. 99. the Vide Part II. the time limited by that Act of Parliament, Entry. viz. within five years after the proclamations made, if the party has a present interest, and is under no legal disability; or otherwise, within five years after the title of the party accrues, or his disability is removed.' An entry, therePost. 310. fore, is necessary in this case, not merely for the purpose of completing the lessor of the plaintiff's title, but of rebutting that of the defendant, and in order to replace the estate which was so devested; and immediately he has made it the fine is avoided, his estate revests, and he has the same title as if no fine had been levied. But since the Statute of 4 Ann, c. 16, he must prosecute his entry, or claim, by action within a year, otherwise it will 2 Dougl. 484. Vide Berring ton v. Parkhurst, 2 Stra. 1086. Oates dem. Wigfall v. Dougl. ton v. Parkhurst, ub. sup. not avail. In this case, therefore, and in this case only,* the formal admission is not sufficient, but an actual entry must be proved to have been made by the lessor of the plaintiff, or by some person on his behalf, previous to the day of the demise laid in the declaration. This entry Poph. 108. must appear to have been made by the com 59 Rep. 106, a. • Fitchet 2 Stra. v. Adams, mand of the lessor of the plaintiff; or at least assented to by him afterwards; though it is said that the bringing of the action is itself sufficient evidence of such assent.' (n) The entry 1128. 11 Williams's Saunders, 319, a. must (n) A guardian may enter for his ward without command or assent; and, if a remainder-man, or lord enter in the name of a tenant for life, or copyholder, or the tenant for life, or copyholder, in the name of the remainder-man, or lord, it is also sufficient Hard. 400. liams's 319. c. also Ld. Grey, Ford v. must be made on some part of the lands com- Ch.IX. f.1. prised in the fine, in the name of the whole;' Entry. and it should also appear, that the person en-Focus v. tering declared that the entry was made for the Salisbury, purpose of avoiding all fines. In cases where See Wilan entry could not be made without personal Saunders, danger, (a case which, in the present improved state of society, can hardly ever happen,) it will be sufficient to prove that a claim was made in the like form, as near the estate as the 421. person making it could come; and, in either case, unless it appear on the record that the action was commenced within a year afterwards, this fact should also be proved in evidence. 3 4 A fine levied by a bare tenant for years, without having previously obtained a tortious fee, by feoffment, or otherwise, does not operate at all against strangers. In such case, therefore, no entry is necessary; neither is it to avoid a fine at common law without proclamations; and if one tenant in common, being in receipt of the whole rents, levy a fine of the whole land, this will not affect the estate of his co-tenant, so as to render it necessary to make an entry, unless there be some further evidence of an actual ouster before the fine was levied. What will amount to evidence of sufficient without command or assent, on account of the privity between those persons; and the like rule holds in respect of tenants in common, joint tenants, and co-partners. Podger's Case, 9 Co. 106, a. 6 Mod. 44. 3 Lit. S. Part II. an actual ouster we shall have occasion to menStatute of tion hereafter. Limitations. Vide Berry, Salk. 421. The Stat. 21 Jac. I. c. 16, enacts, that none shall make any entry into lands but within twenty years next after his title shall first descend or accrue, and from what was said in the commencement of the present Chapter, that the plaintiff must shew a right of entry in his lessor, it follows that no ejectment can be maintained after that time. Therefore it is always necessary for the plaintiff to prove possession in himself, his ancestor, or a tenant who has paid him rent, within twenty years, or account for the want of it, under one of the exceptions allowed by the Statute; for an adverse possession during that time is not merely a bar to the action or remedy, but takes away the right of possession. For this reason it is that the defendant need not plead the Statute of Limitations, as in other cases; and on the same principle, in one Stokes v. case, where A. being lessor of the plaintiff, proved that he had been in uninterruptèd póssession for twenty years, and that the defendant entered on the land, it was holden that this possession of 1. was a sufficient title to enable him to maintain the action, for that by it the entry of the defendant was tolled, and consequently illegal. But to prevent the plaintiff from recovering, it must appear that the possession was adverse ; the possession of a tenant during his term was before |