CLEMENT WOODWARD, PLAINTIFF IN ERROR,

v.

JAMES BROWN, AND SARAH JANE, HIS WIFE, DEFENDANTS IN ERROR

Mr. Justice M’Lean delivered the opinion of the Court. After stating the cáse :—

The counsel for the plaintiffs contend, that the ruling of .the Court was erroneous, and that the declaration is essentially defective.

It appears from the bill of exceptions, that the plaintiffs not only proved title,-but also that the defendant entered into the possession of the premises under their title, as tenant. These facts being proved, the Court very properly refused to instruct the jury, as stated in the first bill of exceptions, that the plaintiffs were not entitled to recover. And there is no doubt that the Court-properly excluded the evidence stated, in the second bill of exceptions.

The writ of possession, which is admitted to have been issued in pursuance of the judgment, did not call for the east half of the lot, of.which the defendant was in possession, and the marshal had no right to change his possession of this lot. And the attornment to the agent of the bank was voluntary, and without authority. The well established principle, therefore, that a tenant shall not be permitted to dispute his landlord’s title, excludes the defendant from setting up the title of the bank.

The objection as to the sufficiency of the notice to the defendant cannot be sustained. He had disclaimed his landlord’s title and attorned to the bank, -Under such circumstances he was not entitled to. notice. 3 Peters’, 48. 1 Wheat. Selwyn, 585. "But if notice to quit had been necessary, it was given; and, as appears from the bill of exceptions, all.objection to its “sufficiency and legality” waB waived by the defendant..

The declaration,, it is insisted, is defective in several particulars. That thé demises are inconsistent, and'that the ouster is alleged two years before the last demise.

On the part of the plaintiff it is intimated, that as the case is brought up on bills of exceptions, the defects in the declaration áre not before the Court for consideration. The . assignment of errors is not limited to the bills of exceptions, but may embrace any errors which appear on the face of the record.

The last demise is stated to have been made in eighteen hundred and thirty-six, and the oustér alleged, “ by virtue of which said several demises, the said Richard entered into all and singular the premises aforesaid, with the appurtenances thereunto belonging, and was thereof possessed; and the said Richard being so thereof possessed, the said John Doe afterwards, to wit, on the twenty-fourth day of November, in the year of our Lord one thousand eight hundred and thirty-four, with force and arms,” &c.

The day -of the ouster need not be alleged, and it is sufficient if laid after the demise. 2 Chitt. 881. 1 Wheaton’s Selwyn, 590.

In this declaration it is averred, that the plaintiff entered under the said several demises, and being in possession, .the said John Doe afterwards, to wit; ón, &c. The specific date under a videlicet was unnecessary, and may be rejected as surplusage; it sufficiently appearing on the face of the declaration, that the ouster was after the entry under the several demises.'

There is no repugnancy in the several demises laid: one, in the name of Jane Stinger, was before the marriage, and the last demise being subsequent to the marriage, it is well laid in the names of the husband and wife. The rule, is well established, that where the right of entry is by virtue of the title of the wife, the demise may be laid in the name of the husband, or in the names of both husband and wife. 2 Chitt. 878.

It is not perceived how the demises as laid in this declaration, can prejudice the rights of the defendant in an action for the mesne profits. They will enable the lessor of the plaintiff .to recover the profits from the time the defendant refused to pay the rent, and this he is entitled to. Upon the whole, we think there is no error in the proceedings of the Circuit Court, and the judgment is therefore affirmed with costs.