Ejectment upon clause

When the ejectment is brought upon a clause of of re-entry. re-entry for nonpayment of rent, if the proceedings are at common law, the lessor must prove the lease or counterpart,(g) and that the rent has been demanded with all the formalities. (h) If the case falls within the provisions of the statute 4 G. II., c. 28, instead of proving a demand of rent, he must show that six months' rent is in arrear, and that there is not a sufficient distress upon the premises.() It is not necessary that the amount of rent proved to be due should correspond with the amount stated in the particulars of breaches delivered by the plaintiff.(j) When the ejectment is for the breach of any other covenant, the lessor must show the covenant broken by the same evidence as in an action of covenant; and if he has been ordered by the court to give to the tenant particulars of the breaches upon which he means to rely, he will be precluded from giving in evidence different breaches from those contained in the particulars.

Ejectment, when right

When there is a right of entry given for an assignof entry for ing or underletting, if a person is found in the

(g) Roe d. West v. Davis, 7 East, 363.

(h) First, a demand of the rent must be made either in person or by an agent properly authorised.-Roe d. West v. Davis, 7 East, 363. Secondly, the demand must be of the precise rent due, (that is, of the pre cise rent due, by the non-payment whereof the forfeiture will be incurred, as a quarter's rent, if the rent be payable quarterly; half a year's rent, if payable half yearly, and so forth; and if there be any previous arrears of rent, and the rent demanded include such arrears, it will not be sufficient to work a forfeiture.-Doe d. Wheeldon v. Paul, 3 C. & P. 613) Thirdly, it must be made precisely on the day when the rent is due and payable by the lease, to save the forfeiture; as, when the proviso is, "That if the rent shall be behind and unpaid by the space of thirty or any other number of days after the day of payment, it shall be lawful for the lessor to re-enter;" a demand must be made on the 30th or other last day. Fourthly, it must be made a convenient time before sunset, (according to the case of Doe d. Wheeldon v. Paul, 3 C. & P. 613, the demand ought to be made at the last hour of the day, at sunset). Fifthly, it must be made upon the land, and at the most notorious place of it; therefore, if there be a dwelling house upon the land, the demand must be at the front or fore door, though it is not necessary to enter into the house, notwithstanding the door be open; but if the tenant meet the lessor either on or off the land at any time of the last day of payment, and tender the rent, it is sufficient to save a forfeiture, for the law leans against forfeiture. Sixthly, unless a place is appointed when the rent is payable, in which case the demand must be made at such place. Seventhly, a demand of the rent must be made, in fact, although there should be no person on the land ready to pay it.-1 Saund. 287, n. 16.

(i) See p. 363.

(J) Tenny d. Gibbs v. Moody, 3 Bing. 3.

&c.

premises appearing as the tenant, it is prima facie assigning, evidence of an underletting sufficient to call upon the defendant to show in what character such person was in possession, as tenant or servant to the lessee; and that the declarations of such person were admissable evidence against the lessee.(k) But it is not sufficient to prove the defendant a stranger in possession of the demised premises, and his declaration that they were demised to him by another stranger.(1)

ant is as

When a claimant is the assignee of the reversion, When claimafter proving the forfeiture, evidence must be given signee of a that he was entitled to the reversion at the time reversion. the forfeiture was committed, and if possible of the mesne assignments from the original lessor. These mesne assignments, however, will be presumed, if the original lease be for a long term, and the possession of the assignee has continued for a considerable time. (m)

the part of the defend

As to the evidence on the part of the defendant, Evidence on it is sufficient to observe generally, that the evidence on his part entirely depends on the nature of the ant. proofs advanced by the plaintiff's lessor, and need in no case be extended beyond the rebuttal of them. The principle that a claimant in ejectment must recover on the strength of his own title is now so clearly established, that little can be said respecting the evidence necessary on the part of the defendant. The lessor of the plaintiff must always in the first instance make out a clear and substantial possessory title to the premises in question, and the defendant's evidence is altogether confined to falsifying his adversary's proofs, or rebutting the presumption that may arise out of it.(n) He needs not show that he has himself any claim whatever to the premises, nor even give evidence of a title in a third person: : it is sufficient if he make it appear to the

(k) Doe d. Hindley v. Rickerby, 5 Esp. 4. (1) Doe v. Payne, 1 Stark. 86.

And such evidence would not be sutfi

cient, even if the tenant had covenanted to part with the possession.

(m) Earl d. Goodwin v. Baxter, Blk. 1228.

(n) See Ad. on Ej., chap. 10.

jury, that a legal and possessory title does not subsist in the plaintiff's lessor.(0)

Title.

General rule as to the admission of evidence

MISCELLANEOUS OBSERVATIONS AND CASES ON THE

ACTION OF EJECTMENT GENERALLY.(p)

IN ejectment, the person having the legal title must prevail. (9) Even in the case of an ejectment

(0) Either party, after plea pleaded, and a reasonable time before trial, may give notice to the other, either in town or country, in the form given, or to the like effect, of his intention to adduce in evidence certain written or printed documents; and unless the adverse party shall consent by inprior to trial. dorsement on such notice, within forty-eight hours, to make the admission specified, the party requiring such admission may call on the party required by summons to show cause before a judge why he should not consent to such admission, or, in case of refusal, be subject to pay the costs of proof; and unless the party required shall expressly consent to make such admission, the judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice, which shall be proved at the trial to the satisfaction of the judge or other presiding officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause. -Reg. Gen., K. B., C. P., and Exch. Hil. T., 4 W. IV.

3 & 4 W. c. 27.

IV.,

Limitation

act.

(p) By 3 and 4 W. IV., c. 27, s. 2, it is enacted, "That after the 31st day of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have accrued, or some person through whom he claims; or if such right shall not have accrued, to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same."

Section 16. And it is by section 16 provided and further enacted, “ That if, at the Disabilities. time at which the right of any person to make an entry or distress, or bring an action to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned, (that is to say,) infancy, coverture, idiotcy, lanacy, unsoundness of mind, or absence beyond seas, then such person, or the person claiming through him, may, notwithstanding the period of such twenty years hereinbefore limited shall have expired, make an entry or distress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid, shall have ceased to be under any such disability, or shall have died (which shall have first happened)."

Section 17.

But no action after

And it is by section 17 provided, nevertheless, and further enacted, "That no entry, distress, or action, shall be made or brought by any person who, at the time at which his right to make an entry or distress, or to bring an action to recover any land or rent, shall have first accrued, shall forty years. be under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such forty years, or although the term of ten years from the time at which he shall have ceased to be under any such disability, or have died, shall not have expired."

(y) Doe d. Da Costa v. Wharton, 8 T. R. 2. S P. Goodtitle d. Jones v. Jones, 7 T. R 47. Doe d. Hodson v. Strple, 2 T. R. 684; and see Roe d. Eberall v. Lowe, 1 H. Black. 447.

session.

brought by a trustee against his cestui que trust.(r) The trustee of a term to satisfy creditors, not having notice of an agreement for a lease before the grant of the term, may maintain an ejectment against the tenant in possession under the agreement. (s) Prior possession, however short, is a sufficient Prior pos prima facie title in ejectment against a wrong doer.(t) Possession for many years, under a deed declaratory of a beneficial interest, in which a covenant to convey the legal estate is inserted, will not raise a presumption that such estate has been conveyed to the possessors, nor entitle them to bring an ejectment.(u) There can be no defence by claiming under an estate which makes part of the title of the lessor of the plaintiff. (v) The nominal plaintiff in ejectment cannot recover upon a joint demise by persons who, upon the evidence, appear to be tenants in common.(w) The usual entry in cases of vacant possession will, in certain cases, bel dispensed with. (a) Where a rent charge is granted with power to the grantee, in case the rent should be in arrear for a certain space of time, to enter and enjoy the lands charged, and to receive and take the rents, issues, and profits, for his own use and benefit, until satisfaction of the arrears of rent with all costs:-the grantee may, upon the rent becoming in arrear, maintain ejectment against the tertenant without proof, or previous demand of the rent.(y) In ejectment, evidence that the lessor of the plaintiff received rent for the premises from A., who formerly occupied them, and also from the parish officers, is admissible, although the defendant

(r) Roe d. Read v. Reade, 8 T. R. 122. Weakley d. Yea v. Rogers, 5 East, 138, n.

(s) Goodtitle d. Estwick v. Way, 1 T. R. 735.

(t) Doe d. Hughes v. Dyeball, M. & M. 346. 3 C. & P. 610. If, in an ejectment, it be proved that the lessor of the plaintiff let the locus in quo to a tenant who held peaceable possession for about a year, this is sufficient evidence of title; as, against a party who came in the night, and forcibly turned such tenant out of possession.-Id.

(u) Goodright v. Swymmer, 1 Ld. Ken. 385.

(v) Hart v. Knott, Cowp. 46.

(w) Doe d. Pool v. Errington, 3 Nev. & M. 646. 1 Adol. & Ellis, 750. (x) Doe d. Frith v. Roe, 2 Dowl. P. C. 431.

(y) Doe d. Brass v. Horsley, 3 Nev. & M. 567.

Mortgagor.

does not claim under A., or the parish officers.() In ejectment, on the several demises of a mortgagor and mortgagee, the defendant offered to prove that seven or eight years back, and after the execution of the mortgage, he brought ejectment against the mortgagor (at that time in possession) that the cause was referred to arbitration, and that the award was in favour of the now defendant, who thereupon entered under a writ of possession, and had occupied the premises ever since; it was held that these proceedings were not admissible evidence of the defendant against the mortgagee, although he was present at one meeting before the arbitrator, it not appearing that he took any part in the proceedings. (a) If a lessor, who has only an equitable title, grants a lease, he has, as against his lessee, a good title by estoppel; but if after the lease, the lessor, by a mortgage deed, grant all his interest in law and in equity to a mortgagee, the lessee may give in evidence this deed, and thus prevent the lessor from recovering in ejectment on a forfeiture of the lease.(b) A consent rule in an ejectment for lands and mines, by which the party appeared to defend for "a certain tin-bound (setting out its abuttals) containing a certain mine," &c., was held insufficient, on the ground that ejectment will not lie for a tin-bound.(c)

The statute 59 G. III., c. 12, s. 17, empowers churchwardens and overseers to take lands and hereditaments in the nature of a body corporate, and declares, that in all actions brought in respect thereof, it shall be sufficient to name the churchwardens and overseers for the time being, describing them as the churchwardens and overseers of the poor of the parish for which they shall act, and naming such parish; where a declaration in eject

(z) Doe d. Lichfield (Earl) v. Stacey, 6 C. & P. 139. See note to p. 624, as to general evidence.

(a) Doe d. Smith v. Webber, 1 Adol. & Ellis, 119.

(b) Doe d. Marriott v. Edwards, 6 C. & P. 208.

(c) The defence should be for the mine which the defendant was working under the tin-bound.--Falmouth (Earl) v. Alderson, 1 Mees. & Wels. 210. 4 Dowl. P. C. 701.