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tract contained in the lease for years, was anciently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior (h) to that of the lessor, or by a grantee of the reversion (who might at any time by a common recovery have destroyed the term), (i) though the lessee might still maintain an action of covenant against the lessor, for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firma, for the trespass committed in ejecting him from his farm. (k) But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice; and, in the prosecution of a writ of ejectment, introduced a species of remedy not warranted by the [*201] original writ nor prayed by the declaration (which are calculated for damages merely, and are silent as to any restitution), viz.: a judgment to recover the term, and a writ of possession thereupon. () This method seems to have been settled as early as the reign of Edward IV; (m) though it hath been said (n) to have first begun under Henry VII, because it probably was then first applied to its present principal use, that of trying the title to the land. (2)

The better to apprehend the contrivance, whereby this end is effected, we must recollect that the remedy by ejectment is, in its original, an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offence, called in our law maintenance (of which in the next book), to convey a title to another, when the grantor is not in possession of the land; and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance. (o) When, therefore, a person, who hath right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as by the law he may) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee: and, having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land, till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him; or till some other person (either by accident or by [*202] agreement beforehand) comes upon the land, and turns him *out or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or his casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought

(h)F. N. B. 145.

(1) See book II, ch. 9.

(k) P. 6. Ric. II. Ejectione firma n'est que un action de trespass en son nature, et le plaintiff ne recovera son terme que est a venir, nient plus que en trespass home recovera damages pur trespass nient fait, mes a feser; mes il convient a suer par action de covenant al comen law a recoverer son terme : quod tota curia concessit. Et per Belknap, la comen ley est, lou home est ouste de son terme par estranger, il avera ejectione firmæ versus cesty que luy ouste; et sil soit ouste par son lessor, briefe de covenant; et si par lessee ou grantee de reversion briefe de covenant versus son lessor, et countera especial count, &c. (Fitz. Abr. t. eject. firm. 2.) See Bract. 1. 4, tr. 1, c. 36.

(1) See Append. No. II. S prope fin.

(m) 7 Edw. IV, 6. Per Fairfax; si home port ejectione firma, le plaintiff recovera son terme qui est arere, si bien come in quare ejecit infra ferminum; et, si nul soit arrere, donques tout in damages. (Bro. Abr. t. quare ejecit infra terminum, 6.) (n) F. N. B. 220.

(0) 1 Ch. Rep. Append. 39.

(2) See on this subject the note to Doe d. Poole v. Errington, 1 A and E. 750.

against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in possession (if any there be), and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defence, make out four points before the court; viz., title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court, then, that the lessor, being seized and possessed by virtue of such title, did make him the lease for the present term; thirdly, that he, the lessee or plaintiff, did enter or take possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term.

This is the regular method of bringing an action of ejectment, in which the title of the lessor comes collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cases. But, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the lord chief justice Rolle, (p) who then sat in the court of upper bench; so called during the exile of King Charles the *Second. This new method entirely depends upon a string of legal [*203] fictions; no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title. To this end, in the proceedings (9) a lease for a term of years is stated to have been made, by him who claims title, to the plaintiff who brings the action, as by John Rogers to Richard Smith, which plaintiff ought to be some real person, and not merely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practised; (r) it is also stated that Smith, the lessee, entered; and that the defendant William Stiles, who is called the casual ejector, ousted him; for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration, (s) Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration; withal assuring him that he, Stiles the defendant, has no title at all to the premises, and shall make no defence; and therefore advising the tenant to appear in court and defend his own title: otherwise he, the casual ejector, will suffer judgment to be had against him; and thereby the actual tenant, Saunders, will inevitably be turned out of possession. (t) On receipt of this friendly caution, if the tenant in possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all; and upon judgment being had against Stiles the casual ejector, Saunders the real tenant will be turned out of possession by the sheriff.

But, if the tenant in possession applies to be made a defendant, it is allowed him upon this condition; that he enter into a rule of court (u) to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action; viz.: the lease of Rogers, the lessor, the entry of Smith, (p) Styl. Pract. Reg. 108 (edit. 1657.) (3) Append. No. II, § 2.

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(t) Ibid.

(q) See Append. No. II, §§ 1, 2.
(u) Ibid. § 3.

(r) 6 Mod. 809,

113

*the plaintiff, and his ouster by Saunders himself, now made the [*204] defendant instead of Stiles: which requisites being wholly fictitious should the defendant put the plaintiff to prove them, he must of course be nonsuited for want of evidence; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only. This done, the declaration is altered by inserting the name of George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith, (the plaintiff), on the demise of Rogers, (the lessor), against Saunders, the new defendant. And therein the lessor of the plaintiff is bound to make out a clear title, otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted. But, if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go for Richard Smith, the nominal plaintiff, who by this trial has proved the right of John Rogers, his supposed lessor. Yet, to prevent fraudulent recoveries of the possession, by collusion with the tenant of the land, all tenants are obliged by statute 11 Geo. II, c. 19, on pain of forfeiting three years' rent, to give notice to their landlords, when served with any declaration in ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant himself appears to it; or, if he makes default, though judgment must be then signed against the casual ejector, yet execution shall be stayed, in case the landlord applies to be made a defendant, and enters into the common rule; a right, which indeed the landlord had long before the provision of this statute; (v) in like manner as (previous to the statute of Westm. 2, c. 3) if in a real action the tenant of the freehold made default, the remainder-man or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant, the estate of those behind should be turned to a naked right. (w) But, if the new defendants, whether landlord, or tenant, or both, after entering into the common rule, fail to appear on the trial, and to confess lease, entry, and ouster, the plaintiff, Smith, must indeed be there nonsuited, for want of proving those requisites; but judgment will in the end be entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant is broken, and, therefore, the plaintiff is put again in the *same [*205] situation as if he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process, therefore, as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken. (3)

The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) (v) Styl. Prac. Reg. 108, 111, 265. 7 Mod. 70. Salk, 257. Burr. 1301. (w) Bracton, l. 5. tr. 4. c. 10, § 14.

(3) The proceedings for the recovery of land are now in England as simple as in any other case.

In the United States ejectment is now generally commenced by filing declaration or complaint against the party in possession, setting forth, in general terms, that the plaintiff is entitled to the possession of the premises, describing the same, and that he claims the same in fee-simple (or otherwise, as the case may be), and that the defendant unlawfully withholds the same. A copy of this declaration or complaint is served on the defendant, and unless he pleads or answers to it within the time prescribed by statute or rule of court, judgment may pass against him by default. In some states parties not in possession, but who claim rights in the premises, are allowed to be made co-defendants, and in others, ejectment may be brought to try conflicting rights when the premises are not occupied at all. In generai, means are prescribed by which the defeated party in the action can have a second trial as of right. If the plaintiff succeeds, he is allowed to have damages assessed by a proceeding in the same suit.

And in many of the states statutes will be found allowing the defendant, who has been in possession claiming title, to recover of the successful plaintiff the value of his improvements or betterments" in certain classes of cases.

very small and inadequate; amounting commonly to one shilling, or some other trivial sum. In order, therefore, to complete the remedy, when the possession has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lessor, against the tenant in possession: whether he be made party to the ejectment, or suffers judgment to go by default. (x) In this case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff; but if the plaintiff sues for any antecedent profits, the defendant may make a new defense.

Such is the modern way of obliquely bringing in question the title to lands and tenements, in order to try it in this collateral manner; a method which is now universally adopted in almost every case. It is founded on the same principle as the ancient writs of assize, being calculated to try the mere possessory title to an estate; and hath succeeded to those real actions, as being infinitely more convenient for attaining the end of justice; because the form of the proceeding being entirely fictitious, it is wholly in the power of the court to direct the application of that fiction, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the *judges) (y) are "judicially to be considered as the fictitious form of an action, really brought [*206] by the lessor of the plaintiff against the tenant in possession: invented, under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being entangled in the nicety of pleadings on either side."

But a writ of ejectment is not an adequate means to try the title of all estates; for on those things whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament: (z) except for tithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII, c. 7, which doctrine hath since been extended by analogy to tithes in the hands of the clergy: (a) nor will it lie in such cases, where the entry of him that hath right is taken away by descent, discontinuance, twenty years' dispossession, or otherwise.

This action of ejectment is, however, rendered a very easy and expeditious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II, c. 28, which enacts that every landlord, who hath by his lease a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards.

2. The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrongdoer or ejector is not himself in *possession of the lands, but another who claims under him. As where a man leaseth lands to an[*207] other for years, and, after, the lessor or reversioner entereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectione firma or ejectment against the feoffee: because he did not eject him, but the reversioner; neither can he have any such action to recover his term against the reversioner, who did oust him; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2, c. 24, as in a case where no adequate

(z) Burr. 668.

(y) Mich. 32, Geo. IL Burr. 668. Cro. Car. 801. 2 Lord Raym. 789.

(z) Brownl. 129. Cro. Car. 492. Stra. 54.

remedy was already provided. (b) And the action is brought against the feoffee for deforcing, or keeping out, the original lessee, during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains; and also shall have actual damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession (by what means soever he acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse. (4)

CHAPTER XII.

OF TREPASS.

In the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species, therefore, of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses; for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense; for which we have already seen (a) that whenever the act itself is directly and immediately injurious to the person or property of another *and therefore necessarily accompanied with some force, an action of [*209] trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil; every entry therefore thereon, without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury; "qui alienum fundum ingreditur, potest a domino, si is præviderit, prohiberi ne ingrediatur." (b) But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid the entry, has carried the point much farther, and has treated every entry upon another's lands (unless by the owner's leave, or in some very particular (b) F. N. B. 198. (b) Inst. 2, 1, 18.

(a) See page 123.

(4) It was abolished by statute 3 and 4 Wm. IV, c. 27, s. 86.

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