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PLAINTIFFS

should

RULE 111.

Rule 111.—All the claimants, or plaintiffs, in All

whom the title is alleged to be, should join in bringwhom title ing an action of ejectment. join.

All persons claiming to have a title giving them a right of entry, and on which therefore they can maintain ejectment, may and should join in the action, and a verdict will be given in favour of the claimant or claimants entitled to recover (r). If, therefore, A., B., and C. sue X. in ejectment for the possession of a house and lands, there are various verdicts that may be given. A verdict may be given in favour of all of them or against all of them, or in favour of some of them, e. g., A. and B., and against others; or a verdict may be given that either all or some of the claimants are entitled to some part only of the property claimed, e.g., to the house but not to the land. The general rule as to co-owners, seems to be that they may either sue jointly and recover the whole of the property to which they are jointly entitled, or that one or more of them may sue without joining the rest, and recover his or their share or proportion of the whole

property (8). Partners Thus, in the case of partners, an action for ejectment and executors.

for the recovery of real property belonging to the firm, ought to be brought in the name of all those persons in whom the legal estate is vested; and if one partner alone has the legal estate he should bring the action in his own name (t), and his title will not be affected by the circumstance of rent having been paid to the firm, and receipts

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(r) The Common Law Procedure Act, 1852, enacts “that the question at the trial shall . . . 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." Sect. 180. (8) See Cole, Ejectment, 285—286 ; C. L. P. Act, 1852, 9. 180 ; and

) Day, C. L. P. Acts, 3rd ed., 148.

(1) Doe v. Baker, 2 B. Moore, 189.

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having been given by all the partners. So if one partner PLAINTIFFS only has made a lease of the partnership property, as his title cannot be disputed by the lessee, ejectment may be maintained by him alone (u). Executors stand in a peculiar position; they are for some purposes joint tenants, and for others tenants in common, and it seems that as the whole term and estate is vested in each executor, any one or more of them may (without the others) recover in ejectment the whole of the property (v). But in all cases of doubt it is best to join every one who may be supposed to have a title, otherwise the defendant may succeed in the action, by setting up against the plaintiffs the better title of some person who has not joined. In actions of this description, persons can join who could not be joined in an ordinary action. Thus, if the legal estate is vested in trustees, but the action is brought by the cestui que trust, he should, if possible, first obtain their authority or consent to their names being used as plaintiffs ; but if they unreasonably refuse, he should offer to indemnify them against the costs of the action, including the defendant's costs, and afterwards without their consent use their names together with his own as claimants. The trustees would not be able to discontinue or defeat such action without the leave of the court or a judge (r). Such a joinder would, in the case of an ordinary action, be, it is conceived, a fatal error (y).

Ejectment by one co-owner against another.-If land is Eje-tment owned by several persons jointly, or in common, e. g., as by.com joint tenants, tenants in common, &c., each is entitled to against

another. enter upon and occupy it (z), and such occupation is no infringement upon the rights of his co-owners. Further, one co-owner of land who merely occupies the whole is not

owner

(u) See Lindley, Partnership, 2nd ed., 482—483.

(v) Doc d. Stace v. Wheeler, 15 M. & W. 623 ; Heath v. Chilton, 12 M. & W. 632 ; Cole, Ejectment, 534.

(c) Cole, Ejectment, 75.
(y) See p. 504, post.
(z) Coke, Litt., 199 b; 1 Lindley, Partnership, 2nd ed., 70.

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DEFEND-
ANTS.

liable at law (or in equity) to pay any rent to the other owners (a); but if one co-owner is actually excluded, or to use the technical term, “ousted” by the others, he can bring ejectment for his undivided share (b); and, having recovered in ejectment, he can sue in trespass for mesne profits (c).

B.-DEFENDANTS.

RULE 112.

in posses

Rule 112.- The persons to be made defendants All tenants in an action of ejectment, i. e., to be named in the sion to be writ, are all the tenants in possession of the land, &c.,

sought to be recovered.

named in writ.

The object of the plaintiff in ejectment being to turn out of possession the persons in actual possession of the land, whether they claim to possess by virtue of their own title or under the title of another, it is against them that he directly proceeds. They are the persons named in the writ, and upon them it must be served (d). Suppose, for example, that A. claims land in the actual possession of X., who holds it as tenant for years of Y. It is against X. and not against Y. that A. directly proceeds, i.e., X. is the person mentioned by name in the writ. So, again, if A.'has let his land to Y., who has underlet it to X., and A. needs to recover possession, the person against whom he proceeds is the under-tenant X., and not Y. under whom X. holds.

The persons to be named in the writ are, therefore, all the tenants in possession, i. e., every person who occu

(a) Wheeler v. Horne, Willes, 208; McMahon v. Burchell, 2 Phill. 127 ; 1 Lindley, Partnership, 2nd ed., 70.

(6) Coke, Litt., 199 b, 200 a.

(c) Goodtitle v. Toombs, 3 Willes, 118 ; 1 Lindley, Partnership, 2nd ed., 70; Doe d. Fellings v. Bird, 11 East, 49 ; Doe v. Horn, 5 M. & W. 564. Compare, as to right of one co-owner to bring trover, pp. 385, 386, ante.

(d) C. L. P. Act, 1852, s. 170, provides a course of proceeding where the possession is vacant.

DEFEND

ANTS.

pies, as tenant or undertenant (or as owner) (e), any part of the property (f). Even a lodger who has the exclusive use of certain rooms may, though it is not necessary or usual to do so, be joined as a defendant. On the other hand, mere friends and visitors of the tenant in posses-, sion, his wife, children, and servants, do not occupy as tenants, and therefore should not be included in the writ as defendants, i. e., they are not in possession ; for the occupation, e.g., of a servant, is, in contemplation of law, the possession of his master (g), though a servant may so act as to render himself personally liable to be sued in ejeçtment (h).

have a

defend who are named in writ or

Rule 113.—The persons who have a right to Rule 113. defend in an action of ejectment are any persons All persons named in the writ, and any person who is in pos- right to session by himself or his tenant. The object of the plaintiff in ejectment is to obtain, are in pos

session. not damages, but possession of the land. He brings his action against the persons actually in possession, and if he succeeds, e.g., through their letting judgment go by default, he turns them out and himself obtains possession. This may cause damage to a person, who owns but does not himself actually occupy the land, and is therefore not made a party to the action. A., for example, brings an action of ejectment against X. and Y., who are in the occupation of land as tenants of Z. from

(e) The word tenant as used here may possibly cause some misunderstanding. Suppose that X., who claims to be the owner of the fee, also occupies his own land. He must be sued as being the tenant in possession.

(f) Cole, Ejectment, 75; Doe d. Smith v. Rowe, 5 Dowl. 254 ; Doc d. Williamson v. Rowe, 10 Moore, 493 ; Doe d. Darlington v. Cock, 4 B. & C. 259; Doe d. Turner v. Gee, 9 D. P. C. 612.

(g) Berlie v. Beaumont, 16 East, 33; Mayhew v. Suttle, 4 E. & B. 347. Compare pp. 335, 336, 358, ante.

(h) Doc d. James v. Staunton, 1 Chit. 113 ; Doe d. Atkins v. Rowe, 2 Chit. 179 ; Cole, Ejectment, 76.

DEFEND-
ANTS.

week to week; 2. is not made a party to the action, the tenants let judgment go by default, and A. obtains possession. This is obviously an injury to Z., for he must, in order to regain possession, either enter and turn A. out, or, in his turn, bring an action of ejectment against A. But the injury may extend far beyond this, and Z. may be deprived of his property, for A. may have no title, and, therefore, Z. may be able if sued to resist his claim. But Z.'s own title may be defective, and if, therefore, he is once put out of possession by A., he may be unable to maintain successfully an action of ejectment against A., or in any way to recover possession of the land. In a case in which it was settled that a landlord has an absolute right to defend an action brought against his tenant, the importance of the right was thus pointed out by Martin, B. “But it was said, this is a matter of little importance, and the only consequence of not allowing the landlord to defend) would be that a person abroad might be turned out of possession, and he might maintain an action of ejectment himself and recover possession. I apprehend a more mistaken view of the law could not possibly be submitted to the court. I apprehend that, probably, one half of the titles of persons in this kingdom depend on their being in possession. By the rule of law, the burden is cast upon the lessor of the plaintiff in ejectment of making out his title. And how many persons are there whose titles are perfectly unassailable ? No person can meddle with or turn them out, because they would be utterly unable to do it by reason of defective evidence, and a variety of other matters that may impede the establishment of all rights; and so far from the circumstance of a person being turned out of possession being a matter of little importance, it is of the utmost importance to the security of landed property that persons should not be turned out of possession, unless some clear proof is given against them, upon which the person so claiming succeeds” (k).

(k) Butler v. Meredith, 24 L. J. 246, Ex., judgment of Martin, B.

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