Ejectment. It is safest for the owner of land to sue in case for an injury to the land, such as cutting down trees, &c., when the land is in the possession of a tenant at will.96 The fee of land over which a road passes, is presumed, prima facie, to belong to the adjoining proprietor;97 for, in the absence of proof, it is presumed it was taken from him. When the adjoining proprietor owns only to the centre of the road, he may maintain trespass, for an injury to his land, &c., over which the road passes, as cutting trees, &c.; but if his land extend only to the line of the highway, case is his only remedy.98 Case, and not trespass, is the remedy of one tenant in common against another, for an injury done to the real estate owned by them in common.99 1 As to what constitutes a trespass. Every unwarranted entry in the lands of another, whether it be enclosed or not, is a trespass. Thus, an entry on land, without any color or claim of title; or under a void license;3 or under a mere executory contract, unless a license to enter and improve, &c., can be fairly inferred from the custom and usage of the contry, the terms of the contract, or otherwise,5 will constitute a trespass. 4 So, continuing upon the land of another, after a request to leave;6 or even going upon the land of another, and taking away one's own property, is a trespass.7 SEC. X. EJECTMENT. The primary object of the action of ejectment, as it existed at common law, was the recovery of land, whereof a tenant for years had been unlawfully ejected; and in order to maintain the action, it was necessary, that the plaintiff should make out, on the trial, four points, viz: title, lease, entry and ouster. It was confined, in the first instance, therefore, to cases in which the plaintiff's title was derived from a lease. In order, however, to extend its benefits to other cases, and thus avoid the circuity and difficulty attendant upon the old proceedings in real actions, the right to the freehold came at length to be determined, indirectly, in this action. It was in form, the term which was to be recovered, and it was therefore necessary that a term should be created; and as the injury complained of in the writ, was the loss of the possession, it was also necessary, that the person to whom the term was given, should be ejected from the lands. (96) See 11 Mass. 519; 8 Pick. 235; 2 N. Hamp. 430; 15 Eng. C. L. Rep. 345; 9 Cowen 39; 1 Johns. 511; 3 Johns. 468; 3 Greenl. 8, Mr. Orr's arg.; 5 East. 485; 7 T. R. 431; 4 Eng. C. L. Rep. 219; 4 Yeates 218; 6 Rand. 8. 556; Wright 500. But see 8 Ohio Rep. 42, per HITCHCOCK J. (97) 12 Wend. 98; 9 Ohio Rep. 165. (98) 9 Ohio Rep. 165. 1 Burr. 143; 15 Johns. 417; 6 Pick. 59; 16 Mass. 35; 14 Id. 256; 6 Id. 456; 2 Id. 127; 1 Cowen, 238; 3 Rand. 563; 12 Wend. 98. (99) 8 T. R. 145; 15 Eng. C. L. Rep. 211. (5) 9 Johns. 35. 331; Wright, 362. 382; 3 Wend. 104. (6) 7 Cowen, 229. (7) 14 Johns. 406; 21 Eng. C. L. Rep. 265; 3 Blackf. 438; see Ib. note. Consequences of a mistake in the form of the action. In order to obtain the first of these requisites, namely, a term, the party claiming title, entered upon the disputed premises, accompanied by another person, to whom, whilst on the lands, he sealed and delivered a lease for years. The lessee, having thus acquired a right to the possession, remained upon the land, and the person who came next upon the freehold, was accounted an ejector. A writ of trespass and ejectment was then served upon him, which might be defended by the party interested in the lands, on application to the court, although the action proceeded in the name of the original ejector. But, as much trouble and formality were found to attend the actual making of the lease, entry and ouster, a new method of trying titles by ejectment, was invented by Lord Chief Justice ROLLE, who presided in the Court of Upper Bench, during the protectorate, by which all these forms were dispensed with; no lease was sealed-no entry or ouster really made-the plaintiff and defendant were merely fictitious names, and, in fact, all those preliminaries were only feigned, which the ancient practice required to be complied with. The suit is commenced by a declaration against the casual ejector, who is a mere nominal party, and notice is given to the tenant in possession, who is admitted to appear and defend, either by himself or his landlord, on entering into a consent rule, to confess lease, entry and ouster, thus, leaving the title the only question open to dispute upon the trial. Ejectment is the common remedy, resorted to in the State of Ohio, to recover the possession of real property, either in fee, for life or for years. This action has been somewhat modified by statutory regulation, and the decisions of our courts, as will be seen hereafter, but the same general principles prevail here as in England, and in several States of the Union. The general rule is, that ejectment will lie for any thing attached to the soil, of which the sheriff can deliver possession.8 It cannot be maintained where the thing to be recovered cannot be delivered in execution, and whereon an entry cannot be made. So, it will not lie for a water course, but it will for the ground over which the water passes.10 The owner of the soil may maintain this action for land which is part of the king's highway.11 Wherever a right of entry exists, and the interest is tangible, so that possession of it can be delivered, ejectment will lie.12 SEC. XI. CONSEQUENCES OF A MISTAKE IN THE FORM OF THE ACTION. When the objection to the form of the action is substantial, and appears upon the face of the declaration, without regard to extrinsic facts, it may be taken advantage of by demurrer. If the objection is not apparent on the face of the declaration, but may only be established by extrinsic facts, then the mode of ob (8) Adams, Eject. 16; 16 Johns. 184. (9) B. N. P. 99. (10) Yelv. 113. (11) Burr. 133. 145. (12) 9 Johns. 298; 1 Tyler, 355; 2 Yeates, 331. Ejectment and trespass-Waiving tort. jection may be on the trial, as a variance between the declaration and proof, upon motion for a nonsuit.13 By statute,14 it is provided, that no new trial shall be granted, or judgment be arrested, or writ of error allowed, after trial or judgment in the Court of Common Pleas, or Supreme Court, on account of any objection to the form of action in which the plaintiff may have declared; or on account of any technical objection to the declaration, or other parts of the pleadings, in case the facts are substantially alledged, which the party was bound to prove on the trial, in order to entitle him to a recovery. If a party fail in his action, on account of a mistake in its form, and not upon the merits, he may commence a fresh action,15 CHAPTER II. THE ELECTION OF ACTIONS. The action of trespass to real property may be supported against a stranger, by any person in the actual possession, though he have no title; whereas in ejectment the plaintiff must, in general, recover on the strength of his own legal title, unless indeed the defendant is a mere intruder, and the plaintiff can establish a prior actual uncontradicted possession. Hence, in some cases it is advisable to adopt the action of trespass. One whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrongdoer sell the goods and receive the money, waive the tort, affirm the sale, and have an action of money had and received for the proceeds.2 And, in general, when a person has been induced, by a fraud on the part of the defendant, to make a contract with a nominal party, of which the defendant has derived the whole benefit, the latter may be sued in assumpsit.3 (13) 1 Chit. Pl. 8 Am. ed. 197. (14) 42 Stat. 72, §2. (15) 1 Chit. Pl. 8 Am. ed. 198. (1) 3 Ohio Rep. 240, 338. (2) 5 Pick. 285; 3 Watts 277; 1 J. J. Marsh. 543; 3 Dana 552. It is held in New Hampshire that, if one take the goods of another without license, the latter may wave the tort, and sue in as sumpsit, as for goods sold and delivered. See also 10 Mass. 433; 435, 6, per Jackson, J.; 1 Hill (N. Y.) 234; 13 Wend. 153, 154; 3 Hill S. C. 248; 12 Pick. 120; 4 Pick. 452; 5 Greenl. 381, 319; 9 Johns. 201; 20 Maine 332; 3 Hill (N. Y.) 282; 1 N. Hamp. 151; Chit. on Con. 5 Am. ed. 607; and cases there cited. (3) 2 B. & P. 550; 2 Phil. Ev. 110, 111; and cases there cited, Ex contractu and ex delicto-Statutory remedies. Inasmuch as a bare possession of goods is sufficient to maintain an action of trover or trespass against a wrongdoer, it may be advisable, on this account, not to sue in assumpsit in some cases where the tort may be waived. The consequences of an omission or mistake in parties are so different in actions ex contractu and ex delicto, that the latter form of action is, on this account, often preferred. In all cases for injuries to the person, personal property,or rights of another, or his servant, child or wife, for which an action of trespass can be brought, still it may be safest to bring case, as case will, under the statute, lie, in all such cases. Replevin is preferable to trover when it is important to obtain the goods themselves. Assumpsit, case or trover, lies against a bailee who converts the goods hailed.5 If a party has a right of action at common law, and a new remedy is given in the affirmative by statute, without a negative, express or implied, of the action at common law, he may avail himself of either. But where a new right is created by statute which did not exist at common law, and a specific remedy is prescribed by statute, that remedy can alone be pursued.7 (4) 42 Stat. 72, §4. (5) 1 Cowen 322; see ante p. 18, 19. 390; 5 Greenl. 38; 16 Johns. 220. (7) 2 Burr. 799; 1 Saund. Rep. 135 n. (4); 250, (6) 3 Hill (N. Y.) 38; 5 Johns. 175; 10 Johns. e. n. (3); 1 Blackf. 39; 3 Hill (N. Y.) 38. CHAPTER III. OF THE JOINDER AND SPLITTING OF ACTIONS. SECTION I. OF THE JOINDER. II. 1. In what cases distinct causes of action should be joined. SPLITTING OF ACTIONS. 1. In what cases distinct causes of action should be joined. A joint action must be brought against the makers and indorsers of a promissory note, duebill, or bill of exchange, otherwise the plaintiff can recover costs in but one action;1 and unless a bank or banker sues the drawers and indorsers, jointly, for money due, and secured by indorsement on the bill, note or obligation for the same, no costs whatever can be recovered.2 It may be proper to advert here to the general rule, that all actions between the same parties, brought at the same time, when the causes of action might be comprised in the same declaration, will, on motion, be consolidated;3 and the court will order the plaintiff to pay the costs of the application, unless a satisfactory reason is shown for bringing two suits. 2. When different actions of the same nature may be joined. In personal actions the general rule is, that causes of action of the same nature, that is, being all ex contractu, or all ex delicto, may be joined in the same action; provided, however, the same plea may be pleaded, and the same judgment may be given on all the counts in the declaration.5 But the converse of this rule is not always true; for, debt on specialty, or debt on judgment, may be joined with debt on simple contract, although they require different pleas;5 and (1) 42 Stat. 72, §1. (2) Stat. 149, §51. (3) 18 Eng. C. L. Rep. 210; 1 Cowen 189; 3 Wend. 441; see 1 Chit. Pl. 8 Am. ed. 199, n. (r); 9 Johns. 261; 5 Halst. 241; Stat. 671, §96. 8 Am. ed. 199, n. (r); 18 Eng. C. L. Rep. 210. (4) 9 Wend. 451; 2 T. R. 639; see 1 Chit. Pl. one. 13 Johns. 462. |