E J E C T M E N T. 393 
Sncli is the modern way of obliquely bringing in quef- 
tion the title to lands and tenements, in order to try it in 
this collateral manner; a method which is now univer- 
fally adopted inalmoft every cafe. It is founded on the 
lame principles as the ancient writs of affize, being cal¬ 
culated to try the mere poffeffory title to an eftate ; and 
hath fucceeded to thofe real actions, as being infinitely 
more convenient for attaining the ends of juftice, becaufe 
the form of the proceeding being entirely fidtitious, it is 
wholly in the power of the court to diredt the application 
of that fidtion, fo as to prevent fraud and chicane, and 
evifeerate the very truth of the title. The writ of ejedt¬ 
ment and its nominal parties (as was refolved by all the 
judges) are judicially to be confidered as the fidtitioiis 
form of an action, really brought by the lelTor of the 
'.plaintiff againft the tenant in pofieflion, invented, under 
the controul and power of. the court, for the advance¬ 
ment of juftice in many refpedts, and to force the parties 
to go to trial on the merits, without being entangled in 
the nicety of pleadings on either fide. 
But a writ of ejedtment is not an adequate means to 
try the title of all eftates, for on thofe things, whereon 
an entry cannot in fadt be made, no entry (hall be fuppofed 
by any fiction of the parties. Therefore an ejedtment 
will not lie of an advowfon, a rent, a common, or other 
incorporeal hereditaments. Brownl. 129. Except for 
tithes in the hands of lay appropriators, by the exprefs 
purview of 32 Hen. VIII. c. 7. which dodtrine hath fince 
been extended by analogy to tithes in the hands of the 
clergy. 2 Ld. Raym. 789. Nor will it lie in fuch cafes, 
where the entry of him that hath right is taken away by 
defeent, difcontinuance, twenty years difpoffefiion, or 
otherwife. 
Ejedtment ought to be brought for a thing that is cer¬ 
tain ; and if it be of a manor, the manor of A. with the 
appurtenances; if of a redtory, the redtory of B. &c. And 
fo many inefl’uages, cottages, acres of arable land, mea¬ 
dow, with theappurtenances in the parifti of, See. Ejedt¬ 
ment lies of a church, as of an houfe called the parifti 
church of, &C. And a church is a meffuage, by which name 
it may be recovered ; and the declaration is to be ferved 
on the parfon who performs divine fervice. 11 Rep. 25. 
1 Salk. 256. It lies de uno mejfuagio five burgagio-, but not 
dc uno mejfuagio five tenemento, unlefs it have a zmat' A. &c. 
to make it good, becaufe of the uncertainty of the word 
tenement. 1 Sid. 295. But for a meffuage and tenement 
hath been allowed. 1 Term Rep. 11. So indeed for a mef¬ 
fuage or tenement. 3 Wilf. 23. It will lie for a moiety, 
or third part of a manor or meffuage, &e. And for a 
chamber or room of a houfe well fet forth. 3 Leon. 210. 
It lieth de domo, which hath convenient certainty for the 
fheriff to deliver poffeflion, &c. Cro. fac. 634. It lies of 
a cottage or curtilage ; of a coal mine, See. but’not of a 
common, pifeary, &c. Cro. Jac. 130. For underwood it 
lies, though a pracipe doth not. 2 Roll. Rep. 482. But for 
uno claufo, or una pecia terra , &c. without certainty of the 
acres, and their nature, it doth not lie. \M0d.1. It lieth 
of a clofe, containing three acres of pafture, Sec. Alfo 
of fo many acres of land covered with water ; though 
not de aqua curfu. 1 Brownl. 242. It lies for a prebendal 
ftall, after collation to it. 1 Wilf. 14. 
In this adtion the law requires, that the thing demanded 
be fo particularly fpecified, that the fherift' may certainly 
know what to give the poffefllon of, if the plaintiff fliould 
recover ; for the judgment is in order to execution ; and 
the judgment would be vain, if execution could not be 
had of the thing fpecifically demanded ; but in this ac¬ 
tion the judges did not confine themfelves to thofe rules 
which govern the pracipe , but allowed fome things to be 
recovered in this adtion, which could not be demanded 
in a pracipe ; becaufe, fince the eftablilhment of that real 
adtion, many things have been added and improved by 
art, and acquired new appellations that are perfectly un- 
derftood now by the law, which are not found in the an¬ 
cient law books; and as men began to contract by new 
Voh. VI. No. 358. 
names which were not known in the o]d law, - fo' it was 
reafonable toTufier the remedy to follow the nature of 
fuch contradts. 2 Ld. Raym. 1470. 1 Burr. 629. 
An ejedtment is a poffeffory remedy, and only compe¬ 
tent where the lelTor of the plaintiff may enter ; there¬ 
fore it is always neceffiry for the plaintiff to (ltew that 
his lelfor had a right to enter, by proving a poffeftlon 
within twenty years, or accounting for the want of it, 
under feme exceptions allowed by the ftatute ; twenty 
years’ adverfe polfefficn, is a pofitive title to the defend¬ 
ant ; it is not a bar to the adtion or remedy for the plain¬ 
tiff only, but takes away his right of poffeflion. 1 Burr. 
119. Every plaintiff mutt (ltew a right of pofteffion, as 
well as of property, and therefore the defendant needs 
not plead the ftatute, as in the cafe of-adt ions. 
A judgment in ejedtment is the recovery of the pof- 
feftion, (not o£-the feilin or freehold ;) without prejudice 
to the right, as it may afterwards appear between the 
parties. He who enters under it in truth and fubftance, 
can only be po lie fled according to right, prout lex pofulat. 
If the leffor have a freehold, he is in as a freeholder : if 
he has a chat tel intereft he is in as a termor ; and in re- 
fpedt of the freehold, his poffeflion enures according to 
right. If he has no title, he is in as a trefpaffer ; and, 
without any re-entry by the true owner, is liable to ac¬ 
count for the profits. 1 Burr. 114. 
This adtion of ejedtment is rendered a very eafy and 
expeditious remedy to landlords w/iq/e tenants arc inarrear, 
by4Ge0.II. c. 2S, which enadt.s that every landlord, 
who hath by his leafe a right of re-entry in cafe of non¬ 
payment of rent, when half a year’s rent is due, and no 
fufficient diftrefs is to be had, may ferve a declaration in 
ejedtment on his tenant, or fix the fame upon fome noto¬ 
rious part of the premiles, which will be valid, without 
any formal re-entry or previous demand of rent. And a 
recovery in fuch ejedtment (hall be final and conclufive, 
both in law and equity, unlefs the rent and all cofis be 
paid or tendered within fix calendar months afterwards. 
The true conftrudtion upon this adt is, to take off'-the 
landlord the inconvenience of his continuing always liable 
to an uncertainty of poffeflion ; (from its remaining in 
tire power of the tenant to offer him a compenfation at 
any time, in order to found an application for relief in 
equity;) and to limit and to confine the tenant to fix 
calendar months after execution granted, for his doing 
this ; orelfe that the landlord (hall from thenceforth hold 
the demited premifes difeharged from the leafe. 1 Burr. 
619. As to the provifion of 11 Geo. II. c. 19. in cafes 
of tenants at rack-rent being one year in arrear and de-^ 
ferting the premifes, two j 11 It ices of peace may in this 
cafe put the landlord in poffeflion. See the article Rent. 
Where an ejedtment is brought againft a tenant, for 
the purpofe of turning him out of'his houfe, farm, &c. 
and the tenant adtually holds the premifes .of the lelfor of 
the plaintiff, it is fometimes neceffary to give him notice 
to quit pofteffion, in order to maintain an ejedtment. 
Here we may obferve, that demifes, where no certain 
term is mentioned, are held to be tenancies from year to 
year, which neither party can determine, without reafon¬ 
able notice to the other. This notice is, in moll counties, 
fix months ; and it mult, in all fuch cafes, expire at that 
part of the year when the tenancy commenced ; and 
therefore it hath been holden, that half a year’s notice 
to quit poffeflion nnift be given to fuch tenant, before the 
end of which time>the landlord cannot maintain an ejedt¬ 
ment ; unlefs the tenant has attorned to fome other per- 
fon, or done fome adt difclaiming to hold as tenant; in 
which cafe no notice is neceffary. And the fame law will 
apply to the executor of fuch a tenant. 3 Wilf. 23. 1, 
Term Rep. 160. But after the expiration of a leafe for a 
certain term, the tenant continuing in poffeflion is deemed 
a trefpaffer ; and therefore an ejedtment which is an ac¬ 
tion of trefpafs may be brought without any notice to quit. 
Where there is a tenant in poffeflion, in order to, pro¬ 
ceed againft him, prepare a declaration, the copy of 
5II whicii^ 
J 
