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a right of entry, accruing in or after Hilary or Trinity terms respectively, the declaration should be entitled the day next after the day of the demise therein, whether such day be in the term or in the vacation.a

*2.-The Venue.] The venue in ejectment is local, and *S80 therefore must be laid in the county in which the premises The venue sought to be recovered are situated. But the venue in the is local. margin is immaterial, if the venue in the body of the declaration be correct.b

be consist

3.-How the demise should be laid in respect of title.] The deThough the demise laid in the declaration is fictitious, still it mise must must be consistent with the title of the lessor; that is, it must ent with be such as, if actually made, would have transferred the right the title of of possession to the lessee.(1) If there be several lessors, the the plaindemise stated in the declaration must be such, as their title will tiff. warrant. If the declaration states a joint demise, it must be shown that each lessor had such a legal title as would enable any one of them to demise the whole of the premises; for if any one of them had not a legal interest in the whole, he cannot in law be said to demise them. As where A. was tenant for life, and B. had the remainder in fee, and they made a lease to C., and declared upon the lease as a joint demise; it was held bad; because, during A.'s life, it was the lease of A. and the confirmation of B., and after the death of A., it was the lease of B. and the confirmation of A., but not a joint demise.

* 11 G. IV, 1 W. IV, c. 70, s. 36. This statute applies only to issuable terms. Doe v. Roe, 2 C. & J. 123. Where the right of entry accrued the day after the essoign day of Trinity Term, it was held, that the lessor was not entitled to serve a declaration in ejectment as of that term. Doe v. Roe, 1 Dowl. 79. So where the tenancy expired the day after the first day of Trinity Term, it was held not to be within the statute. Doe d. Summerville v. Roe, 4 M. & Scott, 747. (30 Eng. C. L. 364.) The statute does not apply to ejectments brought in Middlesex, only where the cause is to be tried at the assizes. Doe d. Norris v. Roe, 1 Dowl. 547. The waiver of the tenant, however, will enable the landlord to proceed with this action according to the provisions of the statute, in cases to which it does not strictly apply. Doe d. Antrobus . Jepson, 3 B. & Ad. 402. (23 Eng. C. L. 104.) Doe d. Ranklin v. Bindley, 4 B. & Ad. 84. (24 Eng. C. L. 28.) Tidd N. P. 625.

t.

The rule of M. T. 3 W. IV, reg. 15, by which every declaration is entitled of the proper court, and on the day of the month and year on which it is filed and delivered, does not apply to actions of ejectment. Doe d. Evans v. Roe, 2 Add. & Ell. 11. (29 Eng. C. L. 13.) Doe d. Gillett v. Roe, 1 C. M. & R. 19; nor does the rule H. T. 4 W. IV, which requires pleadings subsequent to the declaration to be delivered between the parties, apply to this action. Doe d. Williams v. Williams, 4 N. & M. 259. It was formerly usual for the declaration in ejectment, by original, to repeat the whole of the original writ; but now by rule H. T. 2 W. IV, reg. 4, it will be sufficient to state the nature of the action, thus, "A. B. was attached to answer C. D. in a plea of trespass, or in a plea of trespass and ejectment, or as the case may be; and any further statement shall not be allowed in costs."

> Doe d. Goodwin v. Roe, 3 Dowl. 323. B. N. P. 107.

a Treport's Case, 6 Co. 75, b.

(1) (As to the demise see Doe v. Butler, 3 Wend. 149. Siglar v. Van Riper, 10 Wend. 414. Magruder v. Peters, 4 Gill & Johns. 323. Lessee of Binney v. The Chesapeake and Ohio Canal Co. 8 Peters, 214.)

*881 When te

nants in common

sue.

Husband

Joint tenants, or parceners, being seised per my et per tout, have a sufficient interest in the premises to entitle them to make a joint demise; therefore, they may allege a joint demise in the declaration. It is not, however, compulsory upon them, for one joint tenant or parcener may bring ejectment, without joining his companion in the demise, and he may recover his separate moiety; for a severance of the tenancy is thereby created; and if they all join in the action, and declare upon several demises by each, they may recover the whole premises.b *But, as tenants in common have several and distinct titles, they cannot maintain ejectment on a joint lease of the whole premises; a separate demise must be laid for each; or they may join in a lease to a third person, and the declaration may state a demise by such lessee. A count in ejectment laying a joint demise by two, is not supported by proving the two to be entitled as tenants in common. When the declaration alleges a separate demise by each, it may be alleged generally to be of the whole premises demanded; for under a demise of the whole an undivided moiety may be recovered.

When any doubt exists as to the party in whom the legal title is vested, it is usual to declare upon several distinct demises, by several persons concerned in interest; and the claimant will be allowed to insert at the trial any demise included in the declaration; and it is always adviseable, where trustees are lessors, to lay separate demises, by the trustees and cestui que trust, unless the effect of the statute of uses on the trust be very clear. But if demises be inserted in the name of parties without their permission, the court will, on motion, order such demises to be struck out, or it will set aside the proceedings after verdict.s

If the right of entry be in husband and wife, in right of the and wife. wife, the demise may be alleged to be by husband and wife, or by the husband alone." When a pauper has been left in pos

• Boner v. Juner, Lord Raym. 726. Worthington v. Weston, 2 Wils. 232.

Morris v. Barry, 1 Wils. 1. Heatherly d.

Doe d. Lulham v. Fenn, 3 Camp. 190. Doe d. Marsack v. Read, 12 East, 57. Doe d. Raper v. Lonsdale, id. 39. Where, by an underlease, power was reserved, on non-payment of rent, "to the lessors and the original lessor" to enter; held, that the demise was properly laid to be by the lessors alone, and that it need not be a joint demise by the lessors and the original lessor. Doe d. Bedford v. White, 4 Bing. 276. (13 Eng. C. L. 432.)

с

Heatherly d. Worthington v. Weston, 2 Wils. 232. Mantle v. Wollington, Cro.

Jac. 166.

Doe d. Poole v. Errington, 1 Ad. & Ell. 750. (28 Eng. C. L. 197.) 3 N. & M. 646.

Doe d. Briant v. Wippel, 1 Esp. 330. Denn d. Burgess v. Purvis, 1 Burr. 326. 'Adams, 211.

Doe d. Shepherd v. Rose, 2 Chitty, 171. (18 Eng. C. L. 289.) Doe d. Hammock v. Fellis, id. 170. (18 Eng C. L. 288.) But the court refused, at the instance of the defendant, to interfere against a plaintiff who laid a demise by the assignees of a bankrupt without their permission; they having given up the property to the bankrupt, and the plaintiff claiming under him. Doe d. Vine v. Figgins, 3 Taunt. 440. Gardiner v. Norman, Cro. Jac. 617.

session of premises by the overseers of a parish, the demise should be laid by the overseers for the time being, when the ejectment is brought, if the pauper has done any act recognising *a holding under them; otherwise by the overseers who let *882 him into possession, or the last set whom he has acknowledged. Where a declaration in ejectment by the churchwardens and overseers contained two sets of counts, one describing them by their office, without their names, and the other by their names without their office; it was held, that the objection, if any, was cured after verdict."

should be

4.-How the demise should be laid in respect to time.] The deThe day upon which the demise is laid in the declaration, must mise, be subsequent to the time when the lessor's right of entry ac- laid after crues; for if the lessor has not a right to enter, he cannot have the plaina right to demise the lands; therefore, if the demise be laid be- tiff's title fore the right of entry has accrued, the plaintiff must be non- has acsuited. It is usual, however, to lay the day as far back as crued. possible, with a view to the recovery of the mesne profits. A demise by an heir, on the day of the death of his ancestor, is good; for the ancestor might die at five o'clock, the heir enter at six, and make a lease at seven. In ejectment, at the suit of the assignees of a bankrupt, the demise must be laid after the execution of bargain and sale by the commissioners to the assignees.f

The conveyance of an insolvent's property by the clerk of the peace, does not vest the estate in the creditor by relation either to the date of the order or the conveyance, but only from the actual execution of such conveyance by the clerk of the peace: therefore such creditor cannot recover in ejectment upon a demise laid before the execution, though after the estate was out of the insolvent, and the order was made to convey the same to the lessor of the plaintiff.5

An executrix may lay a demise in ejectment before probate granted. And so may an administrator, before administration, *provided it be after the death of the intestate.i In the case of *883

a copyhold, the demise may be laid against all persons but the lord, on a day between the surrender and admittance. When an ejectment is brought against a tenant at will, the demise must be laid subsequently to the time when the possession is demanded, that is to say, subquently to the determination of

Doe d. Grundy v. Clarke, 14 East, 488. 3 Camp. 447.

Doe d. Orleton v. Harpur, 2 D. & R. 708. (16 Eng. C. L. 116.)
Goodtitle d. Galloway v. Herbert, 4 T. R. 680. Adams, 612. Run. 239.
Id. B. N. P. 87.

• Roe d. Wrangham v. Hersey, 3 Wils. 274:
Doe d. Esdaile v. Mitchell, 2 M. & S. 446.
Doe d. Whately v. Telling, 2 East, 257.

Roe d. Bendall v. Summersett, 2 Black. 694. iS. N. P. 708.

Doe d. Bennington v. Hall, 16 East, 208.

Where a fine has been le

vied.

the will. Therefore where possession was demanded on the 5th of October, and the demise was laid on the 1st; it was held bad, the tenancy not having been determined until after the day of the demise laid in the declaration."

Where a fine has been levied with proclamations, and an actual entry is necessary to avoid it, the demise must be laid after such entry. But where the plaintiff's lessor entered, and afterwards levied a fine, and then an ejectment was brought, and the demise laid before the fine, it was held well enough.

с

In ejectment for a forfeiture on a lease, containing the usual clause of re-entry, and a covenant generally to repair, with a further covenant within three months after notice, to repair the defects pointed out in a notice, the demise may be laid before the expiration of the three months.d

Where a sequestration of glebe land was published after the expiration of a notice to quit, a demise by the rector laid on a day subsequent to the expiration of the notice and preceding the publication was held to be good, though the bishop had previously indorsed the writ, "let sequestration issue."e

Where an ejectment is founded on 4 Geo. II, c. 28, s. 2, the day of the demise must be subsequently to the last day on which the rent is payable, to save the forfeiture, and prior to the day on which the declaration is delivered.

It is not necessary to lay any day certain upon which the plaintiff entered; it is sufficient to lay the demise after the *884 title accrued, and then say in general that he entered.5 Nor is it necessary to state any particular day of ouster in the declaration, provided it appears to be subsequent to the commencement of the term and before the action was brought. But it is usual and more advisable to mention a particular day.'

tiff de

clares.

Term upThe number of years that the premises are alleged in the on which declaration to have been demised is immaterial; it is usual to the plain- insert seven years, if the demise be recent; a sufficient number of years, however, should be inserted so as to extend beyond the time when final judgment may be obtained, and admit of the lessor's recovering possession before their expiration. The courts, however, are very liberal in allowing lessors to amend in this respect. The length of the term is, however, wholly unconnected with the title of the claimant and may be

Goodtitle d. Galloway v. Herbert, supra, 882.
R. v. Walker, 7 T. R. 433.

Musgrave d. Hilton v. Shelley, 1 Wils. 214.

Roe d. Goatley v. Paine, 2 Camp. 520. Ellenborough. And see Horsfall v. Testar, 1 Moore, 89. 7 Taunt. 385. (2 Eng. C. L. 146.)

Doe d. Morgan v. Bluck, 3 Camp. 447. Ellenborough.

Doe d. Lawrence v. Shawcross, 3 B. & C. 752. (10 Eng. C. L. 223.)

2 Roll. 466. 2 Ch. Pl. 626.

' Adams, 224.

Merrell v. Smith, Cro. Jac. 311.

Adams, 215. 2 Ch. Pl. 626. Run. 264. S. N. P. 709.

of longer duration than his interest in the land for the plaintiff shall recover according to what his title really is. Hence, a tenant from year to year may declare on a demise for seven years.a

5.-Of the locality of the premises.] It is not necessary to state in the declaration, that the premises are situated in a parish, hamlet, &c.; it is sufficient to mention the name of the place in which they are situate without also describing it by the name of its ecclesiastical or civil division. And in one case, where even the name of the place was omitted when describing the premises, but such name could be collected from other parts of the declaration, the court held the description to be sufficiently certain. If, however, the premises be described as lying in a parish or hamlet, the description must be correct. An uncertain or improper description will be fatal." When the *premises lie in different parishes, it has been usual to enume- *885 rate the whole as lying in one parish, and to repeat the descrip- Variance tion of them as lying in the other parish; but it seems sufficient in the deto enumerate them once only, describing them as lying in the scription of the preparishes of A. and B., or in A. and B. respectively. But it is mises. not necessary to aver the premises to be in a parish; if they are described as being in the parish of A. and B. the court will construe it to mean part in the parish of A. and part in B.; B. being the name of a parish. Where the premises were described as in the parish of Westbury, and it was proved that there were two parishes of Westbury, viz. Westbury-on-Trym, and Westbury-on-Severn; held, that this was not a variance.s So where the premises were stated to be in Farnham, and proved to be in Farnham Royal; held not to be a fatal variance unless it were shown that there were two Farnhams. So where the premises were stated to be in the parish of Saint Luke, in the county of Middlesex, there being two parishes of Saint Luke in that county, the one Saint Luke, Chelsea, and the other Saint Luke, Old Street, or more commonly called, Saint Luke, Middlesex; it was held not to be a fatal variance.

But where the premises were described as being in the united parishes of Saint George's the Martyr, and Saint George's Bloomsbury, and were proved to be situated in Saint George's

Doe d. Shore v. Porter, 3 T. R. 13. Bedford d. Carruther v. Dendien, B. N. P. 106.

▸ Adams, 218.

Id. Goodright d. Smallwood v. Strother, 2 Black. 706.

Goodright . Fawson, 7 Mod. 457. But where, in ejectment, the parish was misstated, the judge at the trial allowed it to be amended. Doe d. Marriott v. Edwards, 6 C. & P. 208. (25 Eng. C. L. 359.) 1 M. & Rob. 219.

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2 Ch. Pl. 626. Adams, 220.

'Goodtitle d. Brembridge v. Walter, 4 Taunt. 671.

Doe d. James v. Harris, 5 M. & S. 326.

Doe d. Tollett v. Salter, 13 East, 9.

iDoe d. Boys v. Carter, 1 Y. & I. 492.

VOL. II.-10

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