king's bench held the direction of the learned judge at nisi prius to be right. (Doe v. Salter, 13 East's R. 21.) The question in respect to a variance between the declaration and the proof in the action of ejectment is disposed of upon the same principles as the same would be in other cases, and the courts are very much more liberal in allowing amendments, or in overlooking and disregarding variances which are not calculated to mislead or tend to the prejudice of the party than formerly. And although the plaintiff must prove the locality of the premises claimed substantially as described in the complaint or declaration, still, after the plaintiff has established his title to a verdict, the court will not try the extent of his claim, as defined by particular metes and bounds (Doe v. Wilson, 3 Stark. R. 477. And vide Rex v. Glossop, 4 Barn. & Ald. R. 619. Doe v. Harris, 5 Maule & Selw. R. 326. Kirt land v. Pownsett, 1 Taunt. R. 570.)

In an action of ejectment, the true location of the lands in dispute is a question for the jury to determine from the evidence adduced, and it is their duty to find the location where they are of opinion the lines were originally run, allowing for the variation of the needle, and the rate of such variation, unless they find that the party is prevented by some agreement, by adverse possession, or by some other legal bar, from availing himself of the original location. (Shields v. Miller, 4 Harris & Johnson's R. 1. Howard v. Cromwell, 1 ib. 115. Helms v. Howard, 2 Harris & McHenry's R. 57.)

But the construction of written evidence is exclusively with the court, and where the evidence is undisputed the construction of the description of the premises is for the court and not for the jury. (Levi v. Gadsby, 3 Cranch's R. 180. St. John v. Bumpstead, 17 Barb. R. 100.) No principle is more clearly settled than this, as a general rule, and the doctrine is peculiarly applicable in the action of ejectment, where the question relates to an alleged variance between the declaration and the proof, although the subject of boundary would seem to be a question for the jury, under proper instructions from the court, and whether a particular piece of land is included within the description mentioned, if the boundaries are in dispute, is held to be a question for the jury. (Pettingill v. Porter, 3 Allen's R. 349.) What are the boundaries of a given piece of land conveyed by a deed, is a question for the court; but where these boundaries are is a question for the jury.

(Abbott v. Abbott, 51 Maine R. 581. And vide Opdyke v. Stephens, 4 Dutch. R. 90.)

In an action of ejectment in the supreme court of the United States, the declaration described the property for which the action was instituted as "lying between Water street and the river Monongahela, with the appurtenances, situate and being in the city of Pittsburgh;" the jury found a general verdict for the plaintiff; the court held the verdict to be sufficiently specific, and decided that the question of boundary is always a matter of fact for the determination of the jury. (Barclay v. Howell's Lessee, 6 Peters' R. 498.)

The title proved must not be inconsistent with the demise laid in the declaration. If the lease is a joint-lease from several persons, they must be proved to have had such an interest as would enable them to join in a demise of all the premises in question. Thus, where the plaintiff declared on a lease made by two, and it appeared on the trial that one of the lessors was tenant for life, and the other had the remainder in fee, so that they could not join in a present demise, the plaintiff failed. (Treport's Case, 5 Coke's R. 14.) But it has been held, that the plaintiff in ejectment, under the several demises of two, may, after notice to quit, recover the possession of premises held by the defendant as tenant from year to year, upon evidence that the common agent of the two had received rent from the tenant which was stated in the receipts to be due to the two lessors; even assuming such receipts to be evidence of a joint-tenancy; for a several demise severs a jointtenancy; and supposing the contract with the tenant to have been entire, no objection lies on that account to the plaintiff's recovery in such case, as he would have the whole title in himself. (Doe v. Read, 12 East's R. 57.) And it has been held, in several other cases, that the plaintiff may declare on the several demises of joint-tenants, and recover on proof of such several demise, for the reason that the letting severs the joint-tenancy. (Doe v. Fenn, 3 Camp. R. 190.)

In ejectment brought upon the joint-demise of several trustees of a charity, it has been held not enough for the defendant who had paid one entire rent to the common clerk of the trustees, to show that the trustees were appointed at different times, as evidence that they were tenants in common; for, as against their tenant, his payment of the entire rent to the common agent of all

is, at all events, sufficient to support the joint-demise, without making it necessary for them to show their title more precisely. (Doe v. Grant, 12 East's R. 221.)

By the fictitious proceedings in the action of ejectment under the common law practice, the defendant, the party in possession, was admitted to defend, on condition of his entering into a rule to confess, at the trial of the cause, the lease of the supposed lessor of the plaintiff, the plaintiff's entry, and ouster. These were the usual terms on which he was admitted to defend.. But under the common law practice, and the practice usually recognized in the action at the present day, if the defendant is tenant in common, or joint tenant, or partner, with the lessor of the plaintiff, or the plaintiff himself, in which cases, since the possession of the defendant is prima facie the possession of all the co-tenants, an actual ouster must be proved. And this ouster must be proved by other means than the consent rule; as by showing that the defendant held adversely, or that he denied the title of the other co-tenants, or claimed the whole of the premises for himself, or denied possession to the others; or had the sole and undisturbed possession for a long course of years without payment of rent, and without any claim of any part of the profits by the other co-tenants during the whole of the time. (Vide Frederick v. Gray, 10 Serg. & Rawle's R. 182. Lodge v. Patterson, 3 Watts' R. 77. McHaffy v. Dobbs, 9 ib. 363. Bolton v. Hamilton, 2 Watts and Serg. R. 294. Lord v. Patterson, 1 ib. 191. Doe v. Prosser, Cowp. R. 217.) But the receipt of the whole rent is equivocal; and a refusal to account is not, of itself, sufficient evidence of an ouster, without denying the title. This was the doctrine laid down by Lord Mansfield in the case of Doe v. Prosser, supra, in which the exclusive possession was for a period of thirty-six years, and the jury presumed an actual ouster in favor of the defendant. And in one case it was held that the receipt of rent for the period of twenty-six years did not prove an ouster, and the question in the case was not even submitted to the jury. Of course, the possession was not adverse, because if it had been, the English statute of limitations would have run, and the defendant would have succeeded in the case on that plea. (Fairclaim v. Shackleton, 5 Burr. R. 2604, 2608.)

One tenant in common in possession, claiming the whole, is beyond the mere act of receiving the whole rent, which is equivocal; and therefore where the tenant in possession claims the whole

interest exclusive of his co-tenant in common, it is an ouster. And a demand of possession by one tenant in common, and the refusal by the other in possession, is evidence of an actual ouster of his companion. (Doe v. Bird, 11 East's R. 49. Sigler v. Van Riper, 10 Wend. R. 415.) And it has been held that in an action for the recovery of land, brought against a co-tenant in common, the denial in the answer of all right, title and interest of the plaintiff in the land is a confession of ouster. This was under the New York practice, where the rule may be considered as somewhat peculiar. It was decided, however, that in such an action it is sufficient for the plaintiff, at the outset, to show that the defendant's entering into possession was under a claim hostile to the rights of the plaintiff, as, where the entry was under an expired lease. (Clason v. Rankin, 1 Duer's R. 337.) This question is often regulated by statute. The doctrine, however, is well settled, that at common law, one tenant in common cannot maintain ejectment against his co-tenant, without proving that the defendant actually ousted him, or did some other act amounting to a total denial of his right as co-tenant; and the denial must amount to a disseisin, or suffice to establish an adverse possession. This rule is not usually varied or modified by statute. In one case in the state of New York, the defendant, who was a tenant in common with the plaintiff of the title, "admitted himself to be in possession, claiming the premises in question as owner in fee thereof under a quit-claim deed" from a grantor who had owned an undivided share, and which deed purported to remise, lease, and forever quitclaim unto the defendant, his heirs and assigns forever, the same premises, describing them by metes and bounds; and the court of appeals held, that the defendant was not guilty of any ouster or denial of his co-tenant's right, so as to subject him to an action of ejectment. By claiming title under such a deed merely, the defendant, it seems, only asserted his right to the share which his grantor had, and not to the whole premises. (Edwards v. Bishop, 4 N. Y. R. 61.) But in another case decided by the old supreme court of the state of New York, the defendant held under a title derived from five of the heirs of one Fish. The defendant claimed the whole premises as his own, had offered to sell them, and being told that all the heirs had not signed his deed, he said they had received their share of the consideration, and he thought equity would compel them to sign it. This was held to

amount to a denial of the right of the plaintiffs, who, as heirs of Fish, were entitled to four-ninths of the property. (Valentine v. Northrop, 12 Wend. R. 494.) And in the state of Connecticut, it has been held that where one tenant in common is in possession of the estate, claiming to hold it by a deed covering the whole of it, it is sufficient evidence of ouster to support ejectment by a co-tenant. (Clark v. Vaughan, 3 Conn. R. 191.) And in the state of North Carolina, the refusal of a tenant in common to admit the right of his co-tenant subsequent to the demise laid, is held to be a sufficient ouster, or adverse possession, to infer an ouster at the time of the demise. (Hargrave v. Powell, 2 Dev. & Batt. R. 97.)

The law presumes, till the contrary is shown, that a man in possession without title intends to hold for the true owner; in other words, that he intends to hold honestly, so far as he can consistently, with holding at all. So, if he have a title as tenant in common, he is presumed to hold for himself and his co-tenants, and if it is alleged that his possession is adverse or exclusive, the plaintiff must show it by actual proof, or show that it is admitted by his adversary in pleading. Although a man who may hold possession rightfully as a tenant in common, presumptively refers himself to that right; yet the contrary may be shown; and if his conduct be such as to satisfy the mind that he means to hold out his co-tenants, and actually exclude them, this is an ouster. (Hubert v. Trinity Church, 24 Wend. R. 587.)

Where there had been a dead silence in the co-tenants out of actual possession for nearly forty years, without any other evidence of an exclusive claim by the tenant in possession, the fact was submitted to the jury as ground of presuming an ouster, and a verdict founded on the presumption was sustained. (Doe v. Prosser, 1 Cowp. R. 217.) But possession of twenty-seven years by one tenant in common, although during all that time the right of the co-tenant had not been recognized, was held by the old supreme court of the state of New York not to be sufficient to authorize a jury to presume an ouster, where, before twenty-five years had elapsed, the co-tenant had made an actual entry upon the land, and was forcibly expelled. The case was considered to come entirely short of the protracted and exclusive possession of Doe v. Prosser, with the unbroken silence appearing in that case. The lapse of time was there considered very great, and the silence entirely