The jury returned a verdict for the plaintiff; whereupon the defendant's counsel moved for a new trial, upon the ground that there was error in the directions to the jury, and in refusing to admit the testimony offered by the defendant; which motion was refused. Judgment upon the verdict, and the defendant appealed to the Supreme Court. Admitting it to be true, that a plaintiff in ejectment, who pending the action takes possession of the premises, cannot further maintain it, we fully concur with his Honor that the court can take notice of no fact unless it be alleged in some proper form, so that issue may be taken on it. Here there was no plea, and of course no issue to which the evidence offered was relevant.
But suppose there had been a plea "since the last continuance," the evidence offered would not have supported the allegation put in issue, for there was a part of the premises of which the defendant retained possession, and from which he "excluded the plaintiff," (336) consequently, as to that part the plaintiff still had a right to maintain his action. A tenant in common can bring ejectment, when there is an actual ouster.
PER CURIAM. Judgment affirmed. *Page 314
Cited: Moore v. Fuller,