CHAP. XLV. What. stat. 3 & 4 W. IV. c. 27. Of the ACTION of EJECTMENT. THE action of ejectment is, in point of form, a personal action of tres pass; but, in effect, it is a mixed action, by which a lessee for years, Excepted out of when ousted of his possession, may recover his term, and damages a. An ejectment being excepted out of the statute 3 & 4 W. IV. c. 27. § 36. may still be brought for the recovery of the possession of lands, &c. : And as it is not affected by the uniformity of process act, it may be commenced, as before that act, either by original writ, in the King's Bench or Common Pleas, or by bill in the King's Bench, or Exchequer of Pleas c. Not affected by uniformity of process act. Within what time it must be brought. Proviso in favour of infants, femes covert, and persons non compos This action, being founded on a right of entry, must be brought, by the statute 21 Jac. I. c. 16. § 1. within twenty years after the right or title of entry accrued; or, in case of an adverse possession, it may be barred by that statute: And as it is an action relating to real property, it will be governed by the statute 3 & 4 W. IV. c. 27 d; by which it is enacted, that "after the 31st day of December 1833, no "person shall bring an action to recover any land, but within twenty years next after the time at which the right to bring such action "shall have first accrued, to 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 bring such action shall have first accrued to the person bringing the same.” 66 66 In the former of these statutes there is a proviso, that "if any person or persons that hath or shall have such right or title of entry, be, or "shall be at the time of the said right or title first descended, accrued, come, or fallen, within the age of one and twenty years, feme coverts, non compos mentis, imprisoned, or beyond the seas, that then such per66 son and persons, and his and their heir and heirs, shall or may, not"withstanding the said twenty years be expired, make his entry, as he might have done before that act, so as such person and persons, or "his or their heir and heirs, shall, within ten years next after his and their "full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue "for the same, and at no time after the said ten years." And it is provided by the statute 3 & 4 W. IV. c. 27. a that "if at the time at which "the right of any person to make an entry, or bring an action, to recover any land shall have first accrued, such person shall have "been under any of the disabilities thereinafter mentioned, that is "to say, infancy, coverture, idiotcy, lunacy, unsoundness of mind, or "absence beyond seas, then such person, or the person claiming 66 66 through him, may, notwithstanding the period of twenty years "thereinbefore limited shall have expired, make an entry, or bring "an action, to recover such land, at any time within ten years next "after the time at which the person to whom such right shall first "have accrued, shall have ceased to be under any such disability, or "shall have died, which shall have first happened." mentis, imprisoned, or beyond the seas. In the present Chapter, it may be proper to notice several import- Alterations in. ant alterations which have been recently made in the action of ejectment, under the following heads: 1. The proceedings by landlord against tenant, when the tenancy expires, or right of entry accrues, in or after Hilary or Trinity terms: 2. The title and commencement of the declaration : 3. The service thereof: 4. The certificate of the judge who tried the cause, for an immediate writ of possession: 5. The mode of suing it out: and lastly, the recognizance of bail in error. By the late act for the more effectual administration of justice in England and Wales, reciting that whereas landlords, to whom a right of entry into or upon any lands or hereditaments may accrue, during or immediately after Hilary and Trinity terms respectively, were unable to prosecute ejectments against their tenants, so as to try the same at the assizes immediately ensuing, whereby much delay was occasioned in the recovery of the possession of lands and tenements, wrongfully withheld by tenants against their landlords; it is enacted, that "in all actions of ejectment thereafter to be "brought in any of his Majesty's courts at Westminster, by any a 16. 11 Geo. IV. & 1 W. IV. c. 70. § 36. Proceedings in, by landlord against tenant, on administration of justice act, when tenancy expires, or right of entry accrues, in or after Hilary or Trinity terms. Construction of statute, and de 66 66 66 "landlord against his tenant, or against any person claiming through 66 66 as aforesaid, to serve a declaration in ejectment, entitled of the day "next after the day of the demise in such declaration, whether the same shall be in term or in vacation, with a notice b thereunto subscribed, requiring the tenant or tenants in possession to appear and plead thereto within ten days, in the court in which such action "may be brought; and proceedings shall be had on such declaration, "and rules to plead entered and given, in such and the same manner, 66 66 as nearly as may be, as if such declaration had been duly served "before the preceding term: Provided always, that no judgment "shall be signed against the casual ejector, until default of appear"ance and plea within such ten days; and that at least six clear days' notice of trial shall be given to the defendant, before the "commission day of the assizes at which such ejectment is intended "to be tried: Provided also, that any defendant in such action may, at any time before the trial thereof, apply to a judge of either of "his Majesty's superior courts at Westminster, by summons, in the "usual manner, for time to plead, or for staying or setting aside the "proceedings, or for postponing the trial until the next assizes; " and that it shall be lawful for the judge, in his discretion, to make "such order in the said cause, as to him shall seem expedient." And that, "in making up the record of the proceedings on any such de"claration in ejectment, it shall be lawful to entitle such declaration "specially, of the day next after the day of the demise therein, whe"ther such day shall be in term or vacation; and no judgment thereupon shall be avoided or reversed, by reason only of such special "title." 66 с This statute applies only to issuable terms: and under it, when a cisions thereon. landlord's right of entry accrued on the day after the essoin day of a Append. to Tidd Sup. 1833, p. 328. and see Append. to Tidd Sup. 1830, p. 216. b Id. 216; and for the form of an affidavit of service of declaration and notice, on this statute, see Append. to Tidd Sup. 1833, p. 329. Stat. 11 Geo. IV. & 1 W. IV. c. 70. § 37. And for the mode of making up the record on this statute, see Append. to Tidd Sup. 1833, p. 329, 30. and Append. to Tidd Sup. 1830; P. 216. d Doe v. Roe, 2 Cromp. & J. 123. 1 Dowl. Rep. 304, S. C. 1 Trinity term, it was holden that he was not entitled to serve a declaration in ejectment as of that terma. So, where the tenancy under an agreement expired the day before the first day of Trinity term, it was holden not to be a case within the statute . And the statute does not it seems apply to cases where the ejectment is brought in Middlesex, for the recovery of premises situate in that county; but only where the cause is to be tried at the assizes. The waiver of a tenant in possession, however, will enable a landlord to proceed in ejectment, according to the provisions of the above statute, in cases to which it does not in strictness apply. And it is no ground for setting aside a verdict for the plaintiff, that he did not give six clear days' notice of trial, as required by the statute; the defendant having appeared, and made his defence: nor is it a defence at nisi prius, that the declaration was irregularly served; as where it was served after the term, in a case not within the statute f mencement of declaration. The declaration in ejectment should regularly be entitled of the Title and comterm in which it is delivered; or if, as is usual, it be delivered in vacation, of the preceding term; and though the demise be laid after the first day of that term, yet the defendant, being a nominal person merely, cannot take advantage of the objection; and if the tenant appear, and apply to be admitted defendant instead of the casual ejector, he is then bound, by the consent rule, to accept a declaration, entitled of a subsequent term, which obviates the objections. So, if the declaration be not entitled of any term, the omission is immaterial and no advantage can be taken of its being entitled by mistake of a wrong term, provided the tenant has sufficient notice given him to appear. When the ejectment is brought by a landlord a Doe v. Roe, 1 Dowl. Rep. 79. 2 Leg. Obs. 367. S. C. b Doe d. Summerville v. Roe, 4 Moore & S. 747. Doe d. Norris v. Roe, 1 Dowl. Rep. 547. 5 Leg. Obs. 431. S. C. per Parke, J. d Doe v. Roe, 7 Leg. Obs. 140. per Littledale, J. Doe d. Antrobus v. Jepson, 3 Barn. & Ad. 402. f Doe d. Rankin v. Brindley, 1 Nev. & M. 1. 4 Barn, & Ad, 84. S. C. & Run. Eject. 2 Ed. 239, 40. Ad. Eject. 3 Ed. 207, 8. Goodtitle d. Price v. Badtitle, H. 58 Geo. III. K. B. Ad. Eject. 3 Ed. 207. i Goodtitle d. Ranger v. Roe, 2 Chit. R. 172. Doe v. Graves, id. ib. Anon. id. 172, 3. Anon. 1 Dowl. Rep. 4. 1 Leg. Obs. 46. S. C. per Littledale, J. Doe v. Roe, 2 Dowl. Rep. 186. 6 Leg. Obs. 235. S. C. per Taunton, J. Doe d. Fry v. Roe, 3 Moore & S. 370. Doed. Ashman v. Roe, 1 Bing. N. R. 253. 1 Scott, 166. S. C. Doe d. Smithers v. Roe, 4 Dowl. Rep. 374. 11 Leg. Obs. 486. S. C. and see Ad. Eject. 3 Ed. 207, 8. Tidd Prac. 9 Ed. 1204; but see Roe d. Stephenson v. Doe, Barnes, 186. Doe d. Gowland v. Roe, 5 Dowl. Rep. 273. SS Recital of original writ unnecessary. Declaration may be served before day of 18 C on the administration of justice act, where the tenancy expires, or The declaration in ejectment must formerly have been delivered first day of term. before the essoin day of the term, in which the notice was given to appear; otherwise the plaintiff could not have had judgment till the next term h: And where the service of the declaration was before the essoin day, but the explanation of it to the tenant in possession did not take place till after, the court held that the lessor of the plaintiff was not entitled to judgment. But now, by a general rule of all the courts, "declarations in ejectment may be served before the first day |