CHAP. II.

THE next to be handled, is, In what Cases this Action lies, and in what not; whereby the Reader may be so well informed, as not to hazard his Client's Cause, and his own Reputation.

Note, If the Heir bring an Ejectment, and the Ancestor dies subsequent to the A∣ction, he shall not recover, because every one shall recover only according to the Right which he hath at the time of the bringing his Action, in Wedywood and Bayley's Case, Raym. 463.

Page  14 It has been laid down for a constant Rule in our Books,* That upon a Possession in Law, a Man shall never maintain an Ejectione Firme, but he ought to have actual Posses∣sion at the time of the Ouster, as if Tenant for years makes a Lease at will, and the Tenant at will is ejected; the Question was in Stone and Grubham's Case, 1 Rolls Rep. 3. if the Tenant for years for this Ejectment of his Lessee at will shall have an Ejectione Fir∣me, and it was resolved that he should not. So if Lessee for years be the Remainder for years, the Lessee for years is ousted, his Term expires, he in Remainder for years cannot have an Ejectione Firme, because he had no actual Possession at the time of the Eject∣ment. So if a Lease for years be made, and before the Lessee enters, a Stranger enters, he shall not have this Action. And upon this Reason of Law it is, that by the new Rule of Practice, the Defendant shall con∣fess Entry and Ouster; but it has been re∣solved, That if Inquisition upon Elegit be found, the Party before Entry hath the Pos∣session, and a Fine with Nonclaim shall bar his Right; for before actual Entry he may have Ejectione Firme or Trespass, and it is not like to an Interesse Termini.

In Smith and Rawlin's Case no Entry was proved to be by Dean and Chapter since 1631. yet in regard Rent had been actual∣ly paid, there the Lessee may bring Ejectment (without any Lease actually sealed on the ground.) 2 Keb. 127. Smith and Rawlins.

Page  15 Possession of the Lessor of the Plaintiff must appear to be within Twenty years, though the special Verdict be on another Point; so Keb. 364. but 32 H. 8. c. 2. ex∣tends not to Common; but the Reversion in the King will priviledge the Lessor of the Plaintiff being but a Lessee for ninety nine years against such want of Possession, 3 Keb. 681. M. 28 Car. 2. B. R. Piggot and the Lord Salisbury.

Lessee for years shall only have this Acti∣on, N. B. 120. F.

He whose Entry is not congeable by Law,* cannot have Ejectione Firme, as in case of a Formedon in Remainder and Discontinu∣ance.

Lessor grants the Reversion to A. Lessee Attorns, A. ousts him, Lessee shall have Eje∣ctione Firme, N. B. 221. a. 1 H. 5. 3. pl. 3.

The Action of Ejectment is maintainable, if it appear by special Verdict, that any for∣mer Lease made by the Lessor que &c. be in force, 1 Rep. 153. Rector of Chedington's Case.

How Copyholder or his Lessee shall bring an Ejectment,* there have been uncertain O∣pinions in our Books; but the Law therein stands thus.

Lessee of a Copyholder for one year shall maintain Ejectione Firme, in as much as his Term is warranted by the Law, by force of the general Custom of the Realm; and it's but Reason, if he be ejected, that he shall have an Ejectione Firme; and it's a speedy course for a Copyholder to have Possession of the Land against a Stranger; but in the Guar∣dian Page  16 of the Monastery of Otlery's Case ci∣ted, it was objected, That if Ejectment be maintainable by Lessee of a Copyholder (as it was adjudged in B.* C.) then if the Plain∣tiff recover, he should have an Habere fac' possessionem, and then Copyholds should be ordered by the Common Law, 4 Rep. 26. Cr. Eliz. 676, 717. Erithe's Case. Moor, 709. Stoner and Gibson. Leon. p. 118.

The Lessor for years of a Copyhold which is made without Licence of the Lord,* may maintain an Ejectione Firme, because he is Les∣see against all but the Lord; and the Lease is good between the Lessor and Lessee, and against all Strangers, but not against the Lord; and so in Hardres's Rep. p. 330. The Lease of a Guardian or Copyholder, will maintain the Declaration in Ejectment, though void, against the Lord and Infant. And therefore Jackson and Neale's Case in Cro. El. 394. seems not to be Law, which was; The Licence to a Copyholder was to lett for twenty one years from Michaelmas last past, he makes a Lease for twenty one years to begin at Christmas following, to the Plaintiff, who entred, and being ousted by the Defendant, brings an Ejectione Firme; the Court was of Opinion, That the Lease not being warranted by this Licence, no Ejecti∣one Firme lies upon it.

But in Petty and Evans's Case, in Eje∣ctione Firme brought by the Lessee of a Copyholder,* it is sufficient that a Count be general without mention of the Licence; and if the Defendant plead Not guilty, then the Defendant ought to shew the Li∣cence Page  17 in Evidence; but if the Defendant plead specially (as in those times it was usual) then the Plaintiff ought to plead the Licence certainly in the Replication, and the Time and Place when and where it was made. 2 Brownl. 40. Petty and E∣vans.

In Ewer and Astwick's Case it was doubt∣ed by the Court (and so in several other Cases in former times) Whether the Plain∣tiff in his Declaration ought to set forth the Custom of the Manor that the Copy∣holder may Lease,* &c. and then to shew that the Lease is warranted by the Custom. But now it's fully agreed, That the Plain∣tiff ought not to shew that the Lease is war∣ranted by the Custom; but that shall come on the other side, and so is the Practice not to declare on the Custom, Rumney and Eve's Case. 1 Leon. p. 100.

It has likewise been a Question,* Whether one ought to be admitted before he can maintain this Action; but it is resolved in Rumney and Eve's Case, if customary Lands do descend to the younger Son by Custom, and he enters, and leaseth it to another, who takes the Profits, and after is ejected, that he shall have an Ejectione Firme, without any Admittance of the Lessor, or without any Presentment that he is Heir, 1 Leon. p. 101. Rumney and Eves, Pop. 38 Bullock and Dib∣ler.

But a Copyholder Mortgagee must be ad∣mitted before he bring this Action,* and he may bring his Bill against the Lord to be Page  18 admitted to inable him to try the Custom; 2 Keb. 357. Towell and Cornish.

Ejectione Firme may be brought by* Exe∣cutors of Land let to their Testator for years upon ouster of the Testator for years per Stat. 4. Ed. 4. c. 6. which gives an Action for Goods taken out of the Possession of the Testator; the Reason is, because it is to re∣cover the Term it self, 7 H. 4. 6. b. 2 Ventr. p. 30.

If a Man ousts the Executors of his Lessee for years of their Term, they may have a special Action on the Case, or they may have Ejectione Firme or Trespass, 4 Rep. 95. a. Reg. 97. N. B. 92.

In Ejectment the Plaintiff was an Infant at the time of the Bill purchased,* and sued by Attorney where he could not make an Attorney, but ought to have sued by Guar∣dian per Cur', it's erroneous, and Error en fait, Cro. Jac. p. 5. Rew and Long.

Deprivation in the Spiritual Court for Symony,* disables from bringing Ejectment, because he can make no Lease, per H. Wind∣ham Buck's Lent Assises, 1668. Dr. Crawley's Case.

In Jefferson and Dawson's Case Council pray'd,* That delivery of Possession might be awarded on Elegit, but the Court denied it, the Party having no day to interplead; and the Sheriff ought only to deliver Sei∣sure to enable the Plaintiff to maintain E∣jectment, and the Tenant may plead on the Ejectment, or else the Tenant may be turn∣ed out unheard, and so be remediless, and per. Cur' actual Possession ought not to be Page  19 delivered; but if it be, it's remediless; and yet before Entry the Plaintiff for whom the Inquisition is found,* has Possession, and be∣fore actual Entry he may have Ejectione Firme, and is not like to an Interesse Ter∣mini, M. 25 Car. 2. B. R.

In some Cases Remedy against an undue Extent may be by Ejectment;* as, The In∣quest by Practice of the Sheriff on Elegit, find the Defendant had Lands in A. where he had nothing, and so extended all his Lands in B. as a Moiety, this is avoidable by Ejectment, as to a Moiety, and the E∣vidence may be, That the Defendant had nothing in A. or to file the Writ of Elegit, and in Ejectment thereon (which else can∣not be brought) to plead the same;* or in case of holding over, Ejectment lies against Tenant by Elegit, if he be satisfied at the extended Value, contra of a Judgment which is uncertain for Costs and Damages, 1 Keb. 891. Dakin and Hulme. 1 Keb. 858. Lord Stamford and Hubbard.

Intruder on the King's Possession,* cannot make a Lease whereupon the Lessee may maintain an Ejectione Firme, tho' he may have an Action of Trespass against a Stranger;* but a Judgment in Information of Intru∣sion pro Rege binds not a Stranger, but that he may enter and bring Ejectment; if it were otherwise this would be a Trap for any Man's Possession by lawful Title; and the Judgment on Intrusion is not in the na∣ture of Seisin or Possession,* but only quod pars committatur & capiatur pro fine, and an En∣try may be made by the King's Patentee, Page  20 Hardress, p. 460. Friend and the Duke of Richmond.

If a Stranger entreth upon the King's Fermor, by such Entry he hath gained the Estate for years; and if he doth make a Lease to another, his Lessee may maintain Ejectione Ferme. A Lessee may have Ejectione Firme, tho' the Reversion be in the King. So that it seems the Ejector by his Entry hath gained the Land, 2 H. 6. 6. Dyer 116. b. 3 Leon. p. 206.

The Lessee of the King may bring Ejecti∣one Firme,* tho' the King be not put out of the Freehold by the Words, He entred and expulsed him, Cr. El. 331. Lee and Morris.

It's said in Leonard, 1 part 212. Lessee of Tenant in Common of one Moiety,* with∣out actual Ouster, cannot maintain Ejectione Firme against the Lessee of his Compa∣nion.

J.* M. covenants to stand seised to the use of himself for life, and after to the use of his Daughters, until every one of them successive shall or may have levied 500 l. Remainder to his eldest Son. He had four Daughters at the time of his Dea•• and the Land was worth 100 l. per Annum; the Father died in 30 El. the eldest Son im∣mediately entred, the eldest Daughter en∣tred in 42 Eliz. and made the Lease to the Plaintiff; Per Cur', she hath overpast her time, and cannot enter; for then she should prejudice her other Sisters, so as they should never levy their Portions, Cr. El. 809. Blackbourn and Lassells.

Page  21 A Person outlawed may bring Ejectione Firme:* For tho' a Person outlawed cannot after an Extent, prevent or avoid the King's Title by Alienation, yet the Outlawry gives no Priviledge to the Possession of a Disseisor, but that the Disseisee may enter and bring the Ejectment; for by the Out∣lary the King hath only a Title to the Pro∣fits, and no Interest in the Land, Hadr. 156. Hammond's Case vide.

If a Man ousts the Executors of his Les∣see for years of their Term,* they may have a special Action on the Case, or they may have an Ejectione Firme or Trespass, 4. Rep. 95. a. Reg. 97. N. B. 92.

One seised of Lands in Fee-Simple,* be∣comes Bail in an Action of Debt in B. R. and after Issue joyned, let the Land to B. the Plaintiff; Judgment is afterwards given against the Principal, and an Extent taken upon the said leased Lands, B. the Plaintiff being thereupon ousted, brings this Action of Ejectione Firme, Crok. Jac. 449. Kervile and Brokest.

Tenant for life,* Remainder to his Issue in Tail; Tenant for life enters into a Stat' and dies, Conisee sues a Scire fac' against his Heir, who was Issue in Tail, and the Sheriff retorns Scire feci; and upon this, Execution without any Plea pleaded by the Heir, and the Heir being ousted by the Execution, brought Ejectione; Per Cur', the Heir shall be bound by this Execution, and he has no Remedy, neither by Ejectment, Writ of Error, nor by Aud' Querela, nor by any other way, but against the Sheriff, Page  22 if he have made a faux Retorn of the Scire fac', Siderfin, p. 55. Day and Guilford.

Rent granted with a Proviso,* that if it be Arrear the Grantee may enter and retain until he be satisfied. This Proviso shall enure to grant a certain Estate to the Grantee when he enters for Non-payment. And tho' the Grantee by such Entry can∣not gain a Freehold, yet he had such an Interest as he may make a Lease of it, and his Lessee may have an Ejectment; for the Law does not give an Interest to any, but it also gives a Remedy for it; and if he have Remedy to hold such Possession, he ought to have this Action, which is the lowest Degree of gaining Possession. So in the Countess of Cumberland's Case, Anno 1659. of Copyholds, there was a Custom, That if such Tenant who claims Tenant Right, does not pay his Fine, the Lord may enter and retain the Land until he be satisfied, and adjudged that his Lessee upon such Entry for Non-payment, may maintain Ejectione Firme, Siderfin, p. 223. Jemot and Cowley. 1 Roll. 784. 2 Keb. 20. mesme Case. Cro. Jac. 511. Havergell and Hare.

Hill. 13 Jac. B. C. Rot. 868. Brown and Hagger cited in Price and Vaughan's Case, is full in the Point; and Trin. 14 Car. 2. Roll. 2511. Eyer and Malin. Ejectment upon a Lease of the Lord Byron, special Verdict found, Sir J. Byren seised in Fee by Inden∣ture, grants a Rent Charge for life, to com∣mence after the Death of the Grantor; and if the Rent be Arrear, that the Gran∣tee Page  23 may euter and take the Profits without Account, till the Rent and Arrears shall be paid. The Rent was Arrear, and the Grantee enters and makes a Lease to the Plaintiff; and Bridgman and the rest (praeter Browne) agreed for the Plaintiff.

It was said in the Case of Holmes and Bayly,* That Tenant at Will may make a Lease for years to try a Title of Land, and so may a Copyholder, Stiles Rep. 380.

Ejectment is brought by Cesty que Trust.* Now if the Trustee of the Lease be Lessor in Ejectment, he may disclaim in pays (if he have not accepted the Trust) which will avoid the Plaintiff's Title at the Tryal; 2 Keb, 794. Cheek and Lisle.

Vendee of the Commissioners on the Statute of Bankrupts of Lands by Deed In∣dented,* cannot maintain by his Lessee an Ejectione Firme, before Inrollment of the Deed, altho' it be inrolled after the Action brought: And the Difference between this and the case of a common Bargain and Sale per Stat. 27 H. 8. c. 10. of Uses, is, For there the Estate passeth by the Contract, and the Use is executed by the Statute; then comes the Act of Inrolments of the same year, and enacts, That no Estate shall pass without Inrolment, and this within Six Months. But the Commissioners here have not any Estate, but only a Power which ought to be executed by the Means pre∣scribed by the Statute, with the Circum∣stances there directed, which is not only by Deed indented, but inrolled also; Sir Tho. Jones, p. 196. Perry and Bowers.

Page  24 Note, Lessor of Tenant in Possession hath no Priviledge in Ejectment, tho' he be a Lord of Parliament, unless he be Tenant in Possession himself, 1 Keb. 329.