title to the premises, the plaintiff cannot recover, though his only object is to get into the possession of the rents and profits. It must appear that the title accrued by the mortgagor's default before the day of the demise laid in the declaration ". and admi 10.—By an executor or administrator.] When ejectment is Executors brought by an executor or administrator, he must prove the nistrators. testator's death, produce the probate of the will or letters of administration, or the book of the ecclesiastical court wherein they are entered, or a copy of the entry in such book, or a certificate of administration granted by such court. In addition to the proof of the title of the deceased, the executor may recover on a demise laid after the death of the testator, but before probate, for the term vests in him from the death of the testator; and the same rule applies to an administrator, for the administration relates back to the intestate's death e. 11.-By assignees.] When ejectment is brought by the as- Assignees signees of a bankrupt, they must prove the title of the bank- of bankrupts and rupt to the premises, and their own right to sue as assignees, if insolvents. it be not admitted by the pleadings f. The assignees of an insolvent debtor, after proving the title of the insolvent, need only produce a copy of the record of the conveyance and assignment to themselves, as filed in the insolvent court; but such copy must be written on parchment, and have the certificate of the provisional assignee of the court indorsed thereon, and be sealed with the seal of the court. The assignee under the compulsory clause in the lords' act, need only to produce the assignment by the prisoner, without producing the previous notices; at all events, it is sufficient if the rule for the prisoner's discharge be also produced h. b When ejectment is brought by a guardian for the lands of an' Guardians. Doe v. Wharton, 8 T. R. 2. 2 Stark. Ev. 307. B. N. P. 246. liams, 13 East, 232. dell, 8 East, 187. Davis v. Wil- 4 Com. Dig. Adm. B. 10. R. v. Stone, 6 T. R. 295. e Id. f Adams, 306. See ante, 304. 6 G. IV. c. 16. s. 90-92. В 7 G. IV. c. 57. s. 19. 1 W. IV. c. 38. s. 1. h Doe d. Milbourn v. Edgar, 2 Bing. N. C. 391. 1 Hodges, 431. infant; if by a guardian in socage, he must prove the seisin of the ancestor and the heirship of the ward, and that the ward was under the age of fourteen years at the time of the demise laid in the declaration, and that among the relations to whom the inheritance cannot descend, he himself is the next of blood to such ward. A guardian by will under 12 Car. II. c. 24. s. 8. must prove his appointment under a deed or the will, the title of the infant, and his minority at the time of the demise. 12. By a parson.] In ejectment by a rector, for the parsonage-house, glebe, or tithes, proof of his admission, institution, and induction will be sufficient without shewing a title in the patron. If the presentation be by parol, it may be proved by a person who heard it, if by a letter to the bishop, the letter itself should be produced d. It is not necessary for the plaintiff to shew, until the contrary is proved, that he has subscribed to the thirty-nine articles. The induction may be proved by some person who witnessed the ceremony, or by the indorsement on the mandate of the ordinary to induct, or by the return to the mandate, if any has been made. The letters of institution reciting the cession of his predecessor, followed by induction, are sufficient evidence of the cession 5. 13.-Ejectment for copyhold lands.] When the lord of the manor brings ejectment for a forfeiture, he must prove the act of forfeiture, that he was lord at the time of the forfeiture committed, and that the tenant had been admitted on the rolls. When the action is brought by the surrenderee of copyhold lands, he must prove the surrender to his use, and his subsequent admittance, for his title is not complete before admittance; but after admittance, his title relates back to the time of 3 2 Stark. Ev. 297. See ante, 843. b Id. Adams, 305. B. N. P. 165. Snow d. Crawley r. Phillips, 1 Sid. 220. R. v. Eriswell, 3 T. R. 723. Co. Litt. 120. a. Powell v. Milburn, 3 Wils. 355. 2 Bl. 851. Williams v. East India Company, 3 East, 199. f Chapman v. Beard, 3 Anstr. 942. 8 Doe d. Kirby v. Carter, R. & M. 237. h B. N. P. 108. Adams, 308. the surrender; and provided he be admitted before the trial, it will be sufficient, though the demise be laid on a previous day a. A devisee in remainder need only prove the admittance of the tenant for life, for that operates as the admittance of him in the remainder b. A person to whom an original grant of copyhold is made, is tenant before admittance; so is the grantee of a copyhold in reversion. The lord may admit a copyhold tenant, not only out of the court but out of the manor, but the steward cannot admit out of the manore. The surrender and admittance may be proved by the original entries on the court rolls of the manor, or by copies thereof properly stamped, with evidence of the identity of the parties admitted; or, if there be no entry on the rolls, by collateral evidence, as by the draft of the surrender from the muniments of the court, and the testimony of the foreman of the homage jury who made the presentment . 14.—Who may be witnesses.] The tenant in possession is not a competent witness to support his landlord's title, for he is interested in the event of the suit; as he may be liable for the mesne profits, and also to be turned out of possession in case of a verdict against the landlord h; nor is he competent to prove that he and not the defendant is really the tenant, for he might be ejected from his lands in case of a verdict against such defendant i. Where a witness stated that the claimant had formerly assigned to him the premises for a particular purpose, but that he had given up the deed, and did not believe that he had any beneficial interest in them, he was held to be incompetent. But the acts of occupiers during their occupation are, even after it had ceased, evidence against the parties under whom they came into possession. So are the declarations of deceased tenants admissible for the purpose of proving that any particular lands formed part of the estate they occupied, and also to negative adverse possession. The mother of the defendant in ejectment, who claimed as heir to his father, is a competent witness for him, though the effect of her testimony be to prove a seisin in law in her husband, which would give her a claim to dower c. An heir apparent may be a witness concerning the title of the land, because his heirship is a mere contingency; but a remainder-man cannot, for he hath a present estate in the land; and this rule extends to the remainder-man in tail a. An executor who takes a pecuniary interest under the will is a competent witness to support it, for the verdict will only have the effect of establishing the will as to the real property. SECTION XV. OF THE TRIAL, JUDGMENT, AND EXECUTION. If the defendant does not appear at the trial and confess lease, entry, &c., the plaintiff must be nonsuited, unless the action be at the suit of the landlord against the tenant, in which case the plaintiff may proceed with the trial, produce the consent rule, and prove that the tenant or his attorney has been served with due notice of the trial; after which he may go into evidence of his right to the premises, and recover the amount of mesne profits accruing from the day of the determination of the tenant's interest to the time of the verdicts. So he may proceed for the mesne profits, in case of the appearance of the tenant at the trial; but this privilege is confined to cases where the relation of landlord and tenant exists h. When the plaintiff is nonsuited in consequence of the defendant's refusal to appear and confess, &c., the cause of the nonsuit should be specially indorsed on the postea in order to entitle the plaintiff to have his costs taxed, and allowed on the consent rule; and also to enable him to have judgment entered against the casual ejector, if necessary a. The 11 Geo. IV. & 1 W. IV. c. 70. s. 38. enacts, "that in When a diately issued. writ of posall cases of trials of ejectment at Nisi Prius, when a verdict session may shall be given for the plaintiff, or the plaintiff shall be non- be immesuited for want of the defendant's appearance to confess lease, entry, or ouster, it shall be lawful for the judge before whom the cause shall be tried, to certify his opinion on the back of the record, that a writ of possession ought to issue immediately, and upon such certificate a writ of possession may be issued forthwith; and the costs may be and executed at the usual time as if no such writ had issued; provided that such writ, instead of reciting a recovery by judgment in the common form, shall recite shortly that the cause came on for trial at Nisi Prius, at such a time and place, and before such a judge, (naming, &c.); and thereupon the said judge certified his opinion that a writ of possession ought to issue immediately." taxed, and judgment signed It has been held under this statute that the judge has no discretion as to the time at which the plaintiff shall have possession; he must grant a certificate to enable him to get immediate possession, or let the case take its regular course b. But if the plaintiff be nonsuited on account of the non-appearance of the defendant, the judge will not grant a certificate without an affidavit of the circumstances. And where it was intimated to the judge that a new trial would be moved for, he refused to certify d. Where, in ejectment on two demises, in separate counts, a verdict was taken for the plaintiff on one, and for the defendant on another, with leave to move to enter it for the plaintiff on a point of law, and speedy execution was given to the plaintiff; it was held, that his having accordingly issued * Turner v. Barnaby, Salk. 259. b Doe d. Williamson v. Dawson, 4 C. & P. 589. Doe d. Packer v. Hilliard, 5 C. & P. 132. Doe v. Dawson, supra. d Doe d. Cook v. Barrett, Tidd, N. Prac. 628. |