the verdict on the first demise, and possession taken under it. (Doe v. Chambers, 4 Adolph. & Ell. R. 410.) But the court has ordered the proceedings in a second ejectment to be stayed until the cost of an action for mesne profits (upon which the lessor in the second ejectment, who had been the defendant in the first, had brought a writ of error) as well as the costs of the first ejectment, were paid. (Doe v. Roe, 4 East's R. 585.)

The courts will not stay the proceedings in the second ejectment where the party against whom the application is made is already in custody under an attachment for non-payment of the costs of the first action. (Doe v. Barclay, 15 East's R. 833. Eaton v. Wyckoff, 4 Wend. R. 203.) Neither will the court stay the proceedings in the second ejectment, if it clearly appear that the verdict in the first action was obtained by fraud and perjury. (Doe v. Thomas, 2 Barn. & Cres. R. 622.) And it has also been held that the court has no power to stay the proceedings in a writ of right, till the costs of a prior ejectment are paid; it is a totally different thing. It is declared that the rule often operates with hardship in ejectment, and it would be more liable to do so in a writ of right, by preventing a party who was poor from asserting his title. (Chatfield v. Stouters, 3 Bing. R. 167.)

CHAPTER XXXV.

THE

THE ACTION TO RECOVER REAL PROPERTY IN GREAT BRITAINPRACTICE UNDER THE COMMON LAW PROCEDURE ACT OF THAT KINGDOM.

MUCH of the preceding discussion has been limited to the action of ejectment as prosecuted at common law, although a large proportion of what has been said has a general application, and all of the principles enunciated have a more or less important bearing upon the action to recover real property in all civilized countries at the present day. But it is proposed now to consider, as briefly as may be, the practice which prevails at the present time in respect to the action to recover real property in the several states. It may not be amiss, however, before entering upon the subject in

respect to the American states, to consider. the same question as it is now regulated by the practice in the kingdom of Great Britain. The old action of ejectment, with all its harmless, curious and amusing fictions, was invented by the English judges centuries ago, and was retained, with little or no substantial change, in England until the year 1852, when the British parliament, giving way to the spirit of modern improvement or innovation, adopted an act to amend the process, practice and mode of pleading in the superior courts of common law at Westminster, and in the superior courts of the counties palatine of Lancaster and Durham, by which all the fictions of the action of ejectment are entirely abolished, and the action in other respects greatly modified and improved.

In respect to the action to recover real property in England, it is now provided, that, instead of the late proceeding by ejectment, a writ shall be issued, directed to the persons in possession by name, and to all persons entitled to defend the possession of the property claimed, which property must be described in the writ with reasonable certainty. The writ must state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed to appear, within sixteen days after service thereof, in the court from which it issued, to defend the possession of the property sued for, or such part thereof as they may think fit; and it must contain a notice, that in default of appearance they will be turned out of possession. The writ is required to bear teste of the day on which it was issued, and it will continue in force for the space of three months from the time it was issued. The writ is required to be in the form prescribed in the act, or to the like effect, and which varies according to the fact whether the defendant resides within the jurisdiction of the court in which the action is brought, or, being a British subject, resides out of the jurisdiction of the court, or, not being a British subject, resides out of the jurisdiction of the court from which the writ issues; and is to be in the form prescribed for writs in other actions prosecuted in the common law courts. The act requires that the name and abode of the attorney issuing the writ, or, if no attorney, the name and residence of the party, shall be indorsed thereon, in like manner as is enacted with reference to the indorsements on a writ of summons in a personal action; and it is provided, that the same proceedings may be had to ascertain whether the writ was issued by the authority of the attorney whose name

was indorsed thereon, and who and what the claimants are, and their abode, and as to staying the proceedings upon writs issued without authority, as in the case of writs in personal actions.

The writ in the action must be served in the same manner as an ejectment was served at common law, or in such manner as the court or judge shall order, and in case of vacant possession, by posting a copy thereof upon the door of the dwelling-house or other conspicuous part of the property. The action is still christened an action of ejectment. The persons named as defendants in the writ, or either of them, will be allowed to appear in the action within the time appointed; and any other person not named in the writ may, by leave of the court or a judge, be allowed to appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or his tenant.

Any person appearing to defend the action as landlord in respect of property, whereof he is in possession only by his tenant, is required to state in his appearance that he appears as landlord; and such person is at liberty to set up any defense which a landlord appearing in an action of ejectment at common law is allowed to set up, and no other.

Any person appearing to a writ of ejectment is at liberty to limit his defense to a part only of the property mentioned in the writ, describing that part with reasonable certainty in a notice entitled in the court and cause, and signed by the party appearing or his attorney. This notice must be served within four days after appearance upon the attorney whose name is indorsed on the writ, if any, and if none, then it must be filed in the master's office; and an appearance without such notice, confining the defense to part, will be deemed an appearance to defend for the whole.

It is declared by the act that want of "reasonable certainty" in the description of the property, or part of it, in the writ or notice, shall not nullify them, but shall only be ground for an application to a judge for better particulars of the land claimed or defended, which a judge shall have power to give in all cases. The court or a judge has the power by the act to strike out or confine appearances and defenses set up by persons not in possession by themselves or their tenants.

In case no appearance shall be entered into within the time appointed, or if an appearance be entered, but the defense be limited to part only, the plaintiffs are at liberty to sign a judg

ment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defense does not apply; which judgment, if for all, may be in the form prescribed by the act or to the like effect, and if for part, may be in the form also prescribed by the act, or to the like effect. In case an appearance is entered, an issue may at once be made up, without any pleadings, by the claimants or their attorney, setting forth the writ, and stating the fact of the appearance, with its date, and the notice limiting the defense, if any, of each of the persons appearing, so that it may appear for what defense is made, and directing the sheriff to summon a jury; and the issue, in case defense is made for the whole, may be in the form contained in schedule A to the act annexed, marked number sixteen, or to the like effect, viz.:

Cumberland, to wit:

A. D. 18

}

On the day and year above written, a writ of our Lady the Queen issued forth of this court, in these words,

that is to say,

Victoria, by the Grace of God (here copy the writ); and C. D. has on the

day of

appeared by

his attorney (or in person), to the said writ, and defended for the whole of the land therein mentioned: Therefore, let a jury come," etc.

If the defense is made for a part only, the issue may be in the form contained in the schedule, marked number fifteen, or to the like effect, viz. :

Cumberland, to wit: On the day and year above written, a writ of our Lady the Queen issued forth of this court in these words, that is to say,

day of

Victoria, by the Grace of God (here copy the writ); and C. D. has on the appeared by his attorney (or in person), to the said writ, and has defended for a part of the land in the writ mentioned; that is to say (here state the part), and no appearance has been entered or defense made to the said writ, except as to the said part: Therefore, it is considered that

the said A. B. (the claimant) do recover possession of the land in the said writ mentioned, except the said part, with the appurtenances, and that he have execution thereof forthwith; and as to the rest, let a jury come," etc.

By consent of the parties, and by leave of a judge, a special case may be stated according to the practice in vogue at the time of the passage of the act. But the claimants may, if no special case be agreed upon, proceed to trial upon the issue, in the same manner as in other actions; and the particulars of the claim and defense, if any, or copies thereof, must be annexed to the record by the claimants; and the question at the trial, except in certain specified cases, will be, whether the statement in the writ of the title of the claimants is true or false, and, if true, then which of the claimants is entitled, and whether to the whole or part, and if to part, then to which part of the property in question; and the entry of the verdict may be made in the form contained in schedule A, to the act annexed, marked number seventeen, or to the like effect, with such modifications as may be necessary to meet the facts, that is to say, the verdict may be in this form:

day of

A. D.

before

"Afterward on the and Justices of our Lady the Queen assigned to take the assizes in and for the within county, comes the parties within mentioned; and a jury of the said county being sworn to try the matters in question between the said parties, upon their oath say, that A. B. (the claimant) within mentioned, on the

day of

A. D. was, and still is, entitled to the possession of the land within mentioned, as in the writ alleged: Therefore," etc.

In case the title of the claimant shall appear to have existed, as alleged in the writ, and at the time of service thereof, but it shall also appear to have expired before the time of trial, the claimant may, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the writ, and to a judgment for his cost of suit. The court or a judge may, on the application of either party, order that the trial shall take place in any county or place other than that in which the venue is laid; and such order being suggested in the record, the trial may be had accordingly.