If all the proclamations have not been completed, the fine will only enure as a fine at common law, and no entry will be necessary to avoid it.(p) When, also, a tenant for life does not levy, but merely accepts a fine, although such acceptance will create a forfeiture of his estate, (q) yet, as the person who levied the fine had not any estate or interest in the lands, at the time of levying the fine, it neither alters the estate of the tenant for life, nor divests the remainder or reversion, and, consequently, no entry, is necessary to avoid it.(r)

The entry must be made by the party who claims the land, or by some one appointed for him ;(s) although if the entry be made by a

[ *97 ] stranger, in the name of the person who has the right without any previous command from him, and he afterwards assent to the entry, within five years after the fine is levied, such entry will be sufficient.(t) If, however, the assent be not given within the five years, any subsequent assent will not avail; for the statute of fines being made for the purpose of repose and tranquility, is always taken strictly.(u)

But a guardian by nurture, or in socage, may enter in the name of his ward, without any command or assent, and such entry shall save his right. So, also, the remainder-inan, or reversioner, or lord of a copyhold, may enter in the name of the tenant for life, years, or copyholder; or these particular tenants in the name of the reversioner, or remainderman; or the lord, without any command or assent, on account of the privity between these persons. (v) So, likewise, an entry by a cestui que trust will be sufficient.(w)

When one joint tenant, tenant in common, or parcener, enters generally into lands, it will be sufficient to avoid the effect of a fine as to his companion, from the principle before mentioned, that the possession of

(p) Doe, d. Duckett, v. IVatis, 9 East, 17, sed vide Tupner, d. Peckham, v. Merlott, Willes. 177.

(q) Co. Litt. 252.(a).

(r) Podgar's case, 9 Co. 106.(b). Green v. Proude, 1 Mod. 117. S. C. 1 Vent. 257,[8. (8) Co. Litt. 253,(a).

(t) Co. Litt 245, (a), Fitchet, v. Adams, Stran. 1128.

(u) Pollard, v. Luttrell, Pop. 108. S. C. Moore, 450. Audley's case, Moore, 457. Podger's case, 9 Co. 106. (a). Audley v. Pollard, Cro Eliz. 561.

(v) Podger's case, 9 Co. 106, (a).
(u) Gree v. Rolle, 1 Ld. Raym. 716.

whole, such fine does not require an actual entry by the other tenant in common to avoid it. Doe ex dem. Truscott vs. Elliot, 1 Barn. & Ald. Rep. 85.

one joint tenant, in common, or parcener, is the possession of his companion also.(x)]1]

With respect to the mode of making the entry, it must be [ *98] upon the lands comprised in the fine; for an entry into other lands, claiming those comprised in the fine, will not be sufficient. (y) Thus, where a fine having been levied, the lessor of the plaintiff proved that, at the gate of the house in question, he said to the tenant, that he was heir to the house and land, and forbad him to pay more rent to the defendant, but did not enter into the house when he made the demand, it was agreed that the claim at the gate was not sufficient; but, as it appeared, that there was a court before the house which belonged to it, and that, though the claim was at the gate, yet that it was on the land, and not in the street the claim was holden good. (2) But if a person be prevented by force, or violence, from entering on the lands whereof a fine has been levied, he must then make his claim as near the land as he can; which, in that case, will be as effectual, as if he had made an actual entry. (a)

When all the lands lie in one county, the party may enter into any part of them, making a declaration in the name of the whole; but if the lands lie in different counties, there must be separate entries for the several counties. (b) The entry must also be made animo [ *99] clamandi, with an intention of claiming the freehold [1] against

(x) Brook. Ab. Entre Con. 37. 1 Roll. Abr. 740. Doe, d. Gill, v. Pearson, 6 East, 173.

(y) Focus v. Salisbury, Hard. 400.

(z) Anon. Skin. 412.

(a) Litt. s. 419. Co. Litt. 253,(b):
(b) Litt. s. 417.

[1] The legal entry of one co-heir, or tenant in common, enures to the benefit of their co-heirs and co-tenants, not only so far as concerns themselves, but strangers. Carothers & Al. vs. The Lessee of Dunning & Al.,

3 Serg. & R. Rep. 373.

[1] Where an entry was made on land by a party, it is not error in the judge, to leave it to the jury to decide, with what intent the entry was made. Carothers & Al. vs. The Lessee of Dunning & Al., 3 Serg. & R. Rep. 373.

Entering on Land and making a survey, if done animo clamandi, may amount to entry and claim: But if the intent be doubtful; the question whether it is an entry and claim, is for the jury. Miller & Al. vs. Shaw, 7 Serg. & R. Rep, 129.

the fine; (c) and, therefore, when, upon a special verdict in ejectment, it was found that a fine had been levied of the premises, and that the lessor of the plaintiff entered upon the premises, with intent to make the demise in the declaration mentioned, but not for the purpose of avoiding the fine, it was held that such entry was not sufficient. (d)

By the statute 4 Anne, c. 16. s. 16. it is enacted, that no claim or entry, to be made upon any lands, &c. shall be of any force to avoid a fine levied with proclamations according to the statute, or a sufficient entry within the statute of limitations; unless upon such entry or claim, an action be commenced within one year after the making of such entry or claim, and prosecuted with effect; and, therefore, if the claimant fail in the ejectment brought in consequence of the entry, and have not time to commence a second ejectment within twelve months after the making of the entry, a second entry must be made. But if the actual entry be once made, and the claimant proceed to execution, in an ejectment brought thereon, it seems clear that the fine is totally avoided, and that no second entry will be necessary, if he be afterwards turned [*100] out of posses-*sion, by the wrong-doer who levied the fine; for the fine being once avoided, shall be void for ever.(e)

It has been questioned, whether an actual entry is not necessary to prevent the operation of the statute of limitations ;(f) but it seems quite clear, from the whole current of authorities, that no entry is necessary, if the action be commenced within the twenty years. If, however, the twenty years be near expiring before an ejectment is brought, it will be prudent to make an actual entry; for it seems, that if an actual entry be made before the expiration of the twenty years, an ejectment may be brought at any time within twelve months after the entry, although the twenty years should in the mean while have expired; and, also, that if the lessor of the plaintiff fail in his first ejectment, whether brought within the twenty years or after, he may, from the provisions of the statute of Anne before mentioned, bring a second, provided this second ejectment be likewise brought within a year after the entry is made; whereas, if an ejectment be brought without an actual entry, and the claimant fail in it, and, before another ejectment can be brought the

(c) Clarke v. Phillips 1 Vent 42.

(d) Berrington, d. Dormer, v. Parkhurst, And. 125. S. C. Stran. 1086. S. C. Willes, 327. S. C. 13 East, 489.

(e) Stowell v. Zouch, Plowd. 353. 366.

(f) Goodright, d. Hare v. Cater, Doug. 477.485, (n. 1.)

twenty years expire, he will be entirely barred of this remedy; because the entry which is confessed by the defendant in the first ejectment being only a fictitious entry, and the second ejectment being a new action, and not a continuance of the first, it amounts to the same thing as if no entry had been confessed, or no ejectment had been brought until after the expiration of the twenty years. [1]

[1] An entry to avoid a Statute of Limitations, must be an entry for the purpose of taking possession. Jackson ex dem. Hardenburgh vs. Schoonmaker, 4 Johns. Rep. 390.

The plaintiff having discontinued a former ejectment, and having lain by, while valuable improvements were made one the land, are circumstances from which the jury may infer an abandonment of his claim. But if the delay be short and no improvements be made, it is of little moment. Cluggage & Al. vs. Duncan's Lessee, 1 Serg. & R. Rep. 111.

Abandonment of claim is not in all cases a matter of fact; it may be a conclusion of law from facts. If a man make a settlement, and leave it for a great length of time, it will not avail him to say, that he keeps up his claim. Such verbal claims have no effect against the act of relinquishing possession, and in such case it is the right of the judge to declare the conclusion of law. Ibid.

19

101

CHAPTER V.

OF THE ACTION OF EJECTMENT AS BETWEEN LANDLORD AND TENANT.

THE modern action of ejectment is not confined in its beneficial effects solely to the trial of disputed titles. It is also the common remedy for landlords, on the determination of tenancies, to recover the possession of their lands from refractory tenants; and it, therefore, properly belongs to this treatise, to inquire into the several relations of landlord and tenant, with regard to this remedy; and to point out the different ways by which the tenant's title to the possession may be determined, and the right of entry in the landlord accrue.

A tenancy may be determined in three several ways; first, by the ef fluxion of time, or the happening of a particular event; secondly, by a notice, from the landlord to the tenant, to deliver up the possession, or vice versa; and, thirdly, by a breach, on the part of the tenant, of any condition of his tenancy, as, by the non-payment of rent, or the nonperformance of a covenant.

No comments are necessary upon the first of these divisions: it is sufficient to say generally, that, when the time expires, or the particular event happens, the tenancy is at once determined; and that the [*102] landlord may imme-*diately maintain an ejectment to recover his possession, without giving any previous notice to the ten

ant.(g) [1]

(g) Roe, d. Jordan v Ward, 1 H. Blk. 97.

[1] Where a lease is to expire at a time certain, a notice to quit is not necessary, in order to recover in ejectment. Bedford vs. M'Elherron, 2 Serg. & R. Rep. 49.

Where A., by his attorney, executed a lease to B. for three years, and after the expiration of the term, B. applied to the attorney, to know if he was authorised by A. to enter into a new agreement, and the attorney replied that he was not, but said that B might continue in possession of the premises, until he heard from A.; Held, that B. was after the expiration of the term, a mere tenant at sufferance, and not entitled to notice to quit pre