SQ'2 E J EC T 
and ouder. Fird, he mud fhew a good title in his leffor, 
which brings the matter of right entirely before the court; 
then, that the lefiTbr, being feifed or podefied by virtue 
ot fuch title, did make him the leafe for' the prefent 
term ; thirdly, that he, the lelfee, or plaintiff, did enter 
or take pofieflion in confequence of fuclt leafe ; and, lad- 
ly, that the defendant ouded or ejeCted him. Where¬ 
upon lie {hall have judgment to recover his term and da¬ 
mages ; and {hall in confequence have a writ of polfedion, 
which the lheriff-is to execute, by delivering him the un- 
didurbed and peaceable poffeflion of his term. 
This is the regular method of bringing an aCtion of 
ejeCtment, in which the title of the leffor comes collate¬ 
rally and incidentally before the court, in order to fliew 
the injury done to theleffee by this oufler. This method 
mufl be {fill continued in due form and driCtnefs, (fave 
only as to the notice to the tenant,) whenever the polfef- 
fion is vacant, or there is no actual occupant of the pre- 
mifes ; and alfo in fome other cafes. But, as much trou¬ 
ble and formality were found to attend the actual making 
of the leafe, entry, and oufter, a new and more eafy me. 
tliod- of trying titles by writ of ejectment, where there is 
any actual tenant or occupier of the premifes in dilpute, 
was invented by the lord chief juftice Rolle. StyI. PraB. 
Reg. 10S. This new method entirely depends upon a 
firing of legal fictions-; no aCtual leafe is made, no actual 
entry by the plaintiff, no aiftual oufter by the defendant, 
but all are merely ideal, for the foie purpofe of trying 
the title. To this end, in the proceedings, a leafe for a 
term of years is fluted to have been made, by him who 
claims title, to the plaintiff who brings the aCtion ; as, 
by John Rogers to Richard Smith, which plaintiff ought 
to be fome real perfon, and not merely an ideal fictitious 
one who hath no exiftence, as is frequently, though un¬ 
warrantably, praCtifed. 6 Mod. 309. It is alfo dated that 
Smith the leffee entered ; and that the defendant, Wil¬ 
liam Stiles, who is called the cafual ejeCtor, ouded him ; 
for which ouder he brings this aCtion. As foon as this 
aCtion is brought, and the complaint fully dated in the 
declaration, Stiles, the cafual ejeCtor, or defendant, fends 
a written notice to the tenant in poffedion of the lands, 
e.g. George Saunders, informing him of the aCtion brought 
by Smith, and tranfmitting him a copy of the declara¬ 
tion ; withal alluring him that he, Stiles, the defendant, 
lias no title at all to the premifes, and (hall make no de¬ 
fence ; and therefore aclvidng the tenant to appear in 
court and defend his own title; otherwife he, the cafual 
ejeCtor, will fuffer judgment to be had againft him ; and 
thereby the a filial tenant, Saunders,* will inevitably be 
turned out of poffeflion. On receipt of this caution, if 
the tenant in pofl'eflion does not within a limited time 
apply to the court to be admitted a defendant in the dead 
of Stiles, he is fiippofed to have no right at all ; and,, 
upon judgment being had againd Stiles, the cafual ejec¬ 
tor, Saunders, the real tenant, will be turned out of pof¬ 
fedion by the fherid'. 
But, if the tenant in poffedion applies to be made a de¬ 
fendant, it is allowed him upon this condition, that he 
enter into a rule of court to confefs, at the trial of the 
c.iufe, three of tlie four requidtes for the maintenance of 
the plaintiff’s action ; viz. the leafe of Rogers the leffor, 
the entry of.Smith the plaintiff, and his oufter by Saun¬ 
ders himfelf, now made the defendant indead of Sides ; 
which requidtes being wholly fictitious, fhould the de¬ 
fendant put the plaintiff to prove them, he mud of courfe 
be non-fuited for want of evidence ; but, by Inch dipu- 
lated confedion of leafe, entry, and oufter, the trial will 
now dand upon the merits of the title only. This done, 
the declaration is altered by inferting the name of George 
Saunders (the tenant) indead of William Stiles ; and the 
caufe goes down to trial under the name of Smith, (the 
■plaintiff,) on the demife of Rogers (the leli'or) againd 
Saunders the now defendant. And herein ^he leffor of 
the plaintiff is bound to make out a clear title, otherwife 
his fictitious leffee cannot obtain judgment to have pof- 
TV1 E -N T. 
fedion of the land fpr the term fiippofed to be granted 
But, if the leffor makes out his title in a Satisfactory man. 
ner, then judgment and a writ of poffedion (hall go for 
Smith, the nominal plaintiff', who, by this trial, has proved 
the right of Rogers, his fuppofed leffor. 
Yet, to prevent fraudulent recoveries of the poffeflion, 
by collufion with the tenant of the land, all tenants are 
obliged by 11 Geo. II. c. 19. on pain of forfeiting three 
years rent, to give notice to their landlords, when they 
are ferved with any declaration in ejeCtment : and any 
landlord may, by leave of the court, be made a co-de¬ 
fendant to the action, in cafe the tenant himfelf appears 
to it, or, if he makes default, though judgment mud be 
then figned againd the cafual ejector, yet execution diall 
be dayed, in cafe the landlord applies to be made a de¬ 
fendant, and enters into the common rule ; a right which, 
indeed tire landlord had, long before the provifion of tiiis 
datute. (Salk. 257. Burr. 1301.) in like manner as (pre¬ 
vious, to the datute of Wedminder, 2. c. 3.) if in a real- 
aCtron the tenant of the freehold made default, tire re¬ 
mainder-man, or reverfioner, had a right to come in and 
defend the poffeflion, led, if judgment were had againd- 
the tenant, the edate of thofe behind drould be turned 
to a naked riglrt. BraEt. lib. 5. c. 10. Bin a tenant to a 
mortgagor who does not give him notice of an ejeCtmenk 
brought by the mortgagee to enforce an attornment, is 
not li ib 1 e to the penalties of 1 s. Geo. PI. 
In ejectment for a chapel, the parfon can only defend- 
for a right to enter and perform divine fervice. Str. 914.. 
Notwithdanding 1 Salk. 250, no-man is to be admitted te¬ 
nant or defendant in ejeCtment by the common rule, un- 
lefs he hath been in poffedion or received rent, and not a 
mere dranger. Comb. 209. He who claims'title, ihall be 
joined as a defendant though the plaintiff oppofes it. 
1 Salk. 256. And therefore even the wife of the leffor. 
257. The v court permitted an heir who had never been- 
in poffeflion, to come in and defend the ejeCtment. The 
father under whom he claimed, died juft after having firft 
obtained a flmilar rule. 4 Tim Rep. 122. So a mort¬ 
gagee. Comberb. 399. 
But if the new defendants, whether landlord, or tenant, 
or both, after entering into the common rule, fail to ap¬ 
pear at the trial, and to confefs leafe, entry, and oufter, 
tile plaintiff Smith muft indeed be there nonfuited;.for 
want of proving thofe requidtes; but judgment will in 
the end be entered againft the cafual ejector Stiles ; for 
the condition on which Saunders, the tenant, or his land¬ 
lord, was admitted a defendant, is broken, and therefore 
the plaintiff is put again in the fame dtuation as if he ne¬ 
ver had appeared at all, the confequence of which would 
have been that judgment would have been entered for 
the plaintiff, and the fheriff, by virtue of a writ for that 
purpofe, would have turned out the tenant Saunders, and 
delivered poffeflion to Smith the plaintiff. The fame 
procefs therefore as would have been had, provided no 
conditional rule had ever been made, mutt now be pur¬ 
ified as foon as the condition is broken. 
The damages recovered in thefe actions, though for¬ 
merly their only intent, are now ufually (fince the title 
lias been confidered as the principal queftion) merely no¬ 
minal, as one Jhilling. In order therefore to complete the 
remedy, when the poffeflion has been long detained from 
him that had the right to it, an aCtion of trefpafs alfo lies, 
after a recovery in ejeCtment, to recover the mefne piofits 
which the tenant in poffeflion has wrongfully received. 
Which action may be brought in the name of either the 
nominal plaintiff in the ejeCtment, or his teffor, againft: 
the tenant in poffeflion : whether he be made party to the 
ejeCtment, or fuffers judgment to go by default. In this 
cafe the judgment in ejectment is conclufive evidence 
againft the defendant, for all profits which have accrued 
fince the date of the demife dated in the former declara¬ 
tion of the plaintiff; but if the plaintiff files for any an¬ 
tecedent profits, the defendant may make a new defence. 
4 Burr. 668, 
Such 
