#### DEN ex dem. WILLIAM JOHNSON AND WIFE vs. BAILEY SWAIN.

A plaintiff in ejectment, who pending the action takes possession of the premises, cannot further maintain it; hut such fact must be alleged in some proper form, as by plea to that effect, “ since the last continuance.”

A tenant in common can bring ejectment, when there is an actual ouster.

This was-an action in ejectment, tried at Fall Term, 1852, of Washington Superior Court. The plaintiff showed title in right of the feme lessor, (she having intermarried with the other lessor,) to one undivided moiety of the premises, as tenant in common with the defendant. The defendant offered to show, that the lessors of the plaintiff, since the last term of the Court, had entered upon, claiming one moiety of the premises, taken possession of, and had remained until the trial on a portion of the lands sued for, but less than one half, and were excluded from the remainder by the possession of the defendant. His Honor, Judge Manly, rejected the evidence, for the reason that there was no plea on which it could be offered.

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 ivas refused. Judgment upon the verdict, and the defendant appeal- ■ ed to the Supreme Court.

Heath, for the defendant,

W. N. H. Smith and H. A. Gilliam, for the plaintiff.

PeaRSon, J.

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 allega*336tion pat in issue, for there was a part of the premises of which the defendant retained possession, and from which he “ excluded the plaintiffconsequently 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.