Pollock v. . Kittrell

¶1The questions submitted to this Court are, Whether a tenant at will can maintain an ejectment, and, Whether a new trial ought to be granted, on the facts stated, and, if granted, Whether upon permission to the plaintiff to add new counts. I think it may properly influence the court to impose terms on the defendant, when a new trial is granted, that the plaintiff's title, on the score of possession, was not objected to at *423 the trial; but when a statement of facts is set forth in the record, from which the conclusion of law is that the plaintiff has no title, we are bound so to adjudge, by granting a new trial. Now, although a tenant at will may maintain an ejectment, yet no person can be such tenant without entering upon the land, his sole right to which consists in enjoying the land by consent of the owner. For many purposes the lease is considered as fictitious; but it is always essential that it should appear that the lessor of the plaintiff had a right in him when the lease was made, for this is the very question to be tried in the ejectment. There ought, therefore, to be a new trial; but, considering the manner in which the objection is made, the plaintiff must have leave to add any other counts to the declaration which he thinks fit.