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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 (7). 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 (8): 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 (9); 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 remainderman 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) (10). But, if the new defendants, whether landlord or tenant, or both, aster entering into the common rule, fail to appear at 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 defen

dant is broken, and therefore the plaintiff is put again in the [*205) *same situation as if he never had appeared at all; the conse

quence 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 (11).

(x) Bracton, l. 5. c. 10, $ 14.

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(v) Styl. Pract. Reg. 108. 111. 265. 7 Mod. 70. Salk. 257. Burr. 1301.

(7) Before the following rules, it was ne- to prosecute his suit against the said defend. cessary for lessor of plaintiff to prove on the ani, then no costs shall be allowed for nol furtrial the defendant's possession of the premi. ther prosecuting the same, but the said deses in question, although the defendant had fendant shall pay costs to the plaintiff, in that entered into the general consent rule, to con- case to be taxed. In the following year, the fess lease, entry, and ouster. 7 T.R. 327. 1 same rule was adopted by the court of comB. & P. 573. But by rule K. B., M. T. 1820, mon pleas. See 2 Brod. & Bing. 470. it was ordered that in every action of eject- (8) 1 R. S. 748, 27. ment, the defendant shall specify in the con- (9) 2 R. S. 342, 17. See also id. 339, sent rule, for what premises he intends to de- $1, &c. fend, and shall consent in such rule to confess (10) A devisee, although he has never been upon the trial, that the defendant (if he de. in possession, has been permitied to defend as fends as tenant, or in case he defends as land- a landlord under this statute. 11 Geo. II. c. lord, that his tenant) was at the time of the 19. 4 T. R. 122. service of the declaration, in the possession (11) Where an ejectment is defended mereof such premises ; and that if uport the trial ly to continue the possession of the premises, the defendant shall not confess such posses.. and no defence is made at the trial, the pracsion, as well as lease, entry, and ouster, tice is for the crier of the court, first, to call whereby the plaintiff shall not be able further the defendant to confess lease, entry, and ous.

The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) 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 (12). 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 defence (13), (14).

(5) 4 Burr. 668.

ter, and then the plaintiff, as in other cases of nonsuited for default of the defendant's apnonsuits, to come forth or he will lose his writ pearance, or of confession of lease, entry, of risi prius. Though in this case the judg. and ouster ; but the production of the consent ment is given against the casual ejector, yet rule and undertaking of the defendant, shall the costs are taxed as in other cases, and if in all such cases be sufficient evidence of the real defendant refuses to pay them, the lease, entry, and ouster; and the judge before court will grant an altachment against him. whom such cause shall come on to be tried Salk. 259. In like manner, if there be a ver- shall, whether the defendant shall appear upon dict for the defendant, or the nominal plaintiff such trial or not, permit the plaintiff on ihe be nonsuited without the default of the de. trial, after proof of his right to recover posfendant, the defendant must tax his costs and session of the whole or of any part of the sue out a writ of execution against the nomi- premises mentioned in the declaration, to go nal plaintiff; and if, upon serving the lessor into evidence of the mense profits thereof, of the plaintiff with his writ and a copy of which shall or might have accrued from the the rule to confess lease, entry, and ouster, day of the expiration or determination of the the lessor of the plaintiff does not pay the tenant's interest in the same, down to the time costs, the court will grant an attachment of the verdict given in the cause, or to some against him. 2 Cromp. Pract. 214. In eject. preceding day, to be specially mentioned ment the unsuccessful party may re-try the therein; and the jury on the trial finding for same question as often as he pleases without the plaintiff, shall in such case give their verthe leave of the court;t for by making a dict upon the whole matter, both as to the refresh demise to another nominal character, it covery of the whole or any part of the premibecomes the action of a new plaintiff upon ses, and also as to the amount of the damaanother right, and the courts of law cannot ges to be paid for such mesne profits. The any farther prevent this repetition of the ac- said act not to bar landlord from bringing tion, than by ordering the proceedings in one trespass for the mesne profits to accrue from ejectment to be stayed till the costs of a for the verdict or the day so specified therein mer ejectment, though brought in another down to the day of the delivery of possession court, be discharged. 2 Bla. Rep. 1158. Barnes, of the premises recovered in the ejectment.” 133. But a court of equity, in some instances (13) Contra now in New-York, by 2 R. S. where there has been several trials in eject. 311, 0 48. ment for the same premises, though the title (14) The defendant may plead the statute was entirely legal, has granted a perpetual in- of limitations, and by that means protect himjunction. í P. W. 672.

self from the payment of all mesne profits, (12) But with reference to mesne profits except those which have accrued within the accrued up to the day of the verdict, and in last six years. Bull. N. P. 88.5 cases where the tenancy existed under lease The common remedy by ejeciment is geneor agreement, resort to this separate action is rally treated as a mixed action, the party insuperseded by sect. 2 of stat. 1 Geo. IV. c. 87, terested thereby recovering his estate, and which enacts, "Wherever thereafter it shall damages for the ouster; but as those damages appear on the trial of any ejectment, at the are nominal, and the claimant musi, in order suit of a landlord against a tenant, that such to recover the intermediate profits, resort to an tenant or his attorney hath been served with action of trespass, such action of ejectment is due notice of trial, the plaintiff shall not be in substance merely for the recovery of the + See p. 194, note 15, ante, contra. improvements : the plaintiff recovers nothing

In New-York the statute expressly limits for the use of the improvements. (2 R. S. the recovery to six years' rent and profits, 311, 9 49, &c.) and the defendant may set off the value of his


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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 assise, 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 [*206] the judges) (y) are "judicially to be considered as the fictitious


(y) Mich. 32 Geo. II. 4 Burr. 668. estate. But in one instance, in favour of land- tute (1 Geo. IV. c. 87.) 5 B. & A. 770. But lords, a remedy by ejectment is given nearly an agreement in writing, for apartments for resembling the ancient mixed action ; for it is three months certain, comes within the mean. enacted by I Geo. IV. c. 87. that upon refusal ing of the words of the act, where the party by a late tenant to deliver up possession upon holds for any term, or number of years certain, the expiration of his tenancy by lease or writ- or from year to year. 5 B. & A. 766. 1 Dow. len agreement, and after lawful demand in & Ry. 433. A tenant being in possession, unwriting, the landlord, on bringing an ejectment, der an agreement that the landlord should may address a notice at the foot of the declara- grant a lease for eight years, and that the letion to the tenant requiring him to appear in nant should pay 40s. for every day he held court on the first day of the next term;

or if in over, continued to hold the whole time, though Wales, or the counties palatine of Chester, the lease was never granted ; and upon his Lancaster, or Durham, on the first day of the bolding over, notice to quit and demand of assizes, or appearance day, there to be made possession, with notice of ejectment, was redefendant, and to find bail; or in case of his gularly served. It was held that the tenant non-appearance, upon production of the lease, was not to be treated as a tenant from year to agreement, &c. and the proper affidavits by year, and that the demand of possession was the landlord, &c. the court may grant a rule, sufficient notice within the statute, so as to calling on the tenant to show cause why he entitle the plaintiff to the benefit of the undershould not, upon being admitted defendant, taking, and security required by that slatute. beside entering into the common rule, under: 2 Dow. and Ryl. 565. take, in case a verdict should pass against him, The rule nisi, calling on a tenant to enter to give the plaintiff a judgment, to be entered into a recognizance under this statute, need up against the real defendant of the term next not specify all the particulars thereby required, preceding the trial; and also, why he should as the court may mould the rule according to not enter into a recognizance by himself and its requisites, upon shewing cause. 5 B. & two sufficient sureties in a reasonable sum (to A. 766. i Dowl. & Ry. 433. The time within be named), conditioned to pay the costs and which the undertaking and security required damages which shall be recovered by the plain. by the statute shall be given, is to be fixed by tiff in the action. Upon the rule being made the court at the time the rule is granted. 2 absolute, if the tenant do not conform, judg. Dowl. & Ry. 688. After a rule granted in a ment to be for the plaintiff. The act further cause, entitled Doe, &c. v. Roe, to which the provides, that whether the defendant appear or tenant in possession appeared, judgment was not at the trial, the plaintiff may go into proof, entered up, and execution taken out against and the jury give damages for mense profits the tenant by name, and it was held not to be down to the verdict or a day specified therein. irregular. 3 Dow. & Ryl. 230. See I Dow. & Ryl. 433. But when the re- The court, on making a rule absolute, un. quired undertaking is given, it is provided, der this act (no cause being shewn), for the that if it appear to the judge that the finding tenant's undertaking to give the plaintiff judgof the jury was contrary to the evidence, he ment, to be entered up against the real de. may order a stay of execution till the fifth day fendant, and to enter into a recognizance in a of the next term; and he is bound to make reasonable sum, conditioned to pay the costs this order if the defendant desire it, upon his and damages which should be recovered by undertaking to give security not to commit the plaintiff in the action; ordered the tenant any kind of waste, or sell the crops, &c. And to appear in the next succeeding term, to find if the result of the trial under this act be such bail as was specified in the former rule ; against the landlord, the tenant shall have and on no cause being shewn to that order, judgment with double costs.

they directed the rule for entering up judg. The statute 1 Geo. IV.c. 87. does not extend ment for the plaintiff to be made absolute. to the case of a lessee, holding over after notico The court can only give a reasonable som for to quit, given by himself, where his tenancy has the costs of the action, and not for the mesne not expired by the efflux of time. I Dow. & profits, the amount of which must be ascertain. Ry. 540. And where a tenant holds from year ed by the prothonotary. 6 Moore, 54. See to year, without a lease or agreement in wri- further, as to the proceedings on this statute, ting, it is not within the first section of the sta- Tidd, 8 ed. 541, &c.



form of an action, really brought 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 par. ties 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 (2): 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 (15), (16).

2. The writ of quare ejecit infra terminum^3lieth, by the ancient law, where the wrongdoer or ejector is not himself in possession [*207] of the lands, but another who claims under him. As where a man leaseth lands to another for years, and, aster, 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 firmae or eject(2) Brownl. 129. Cro. Car. 192. Stra. 54.

(a) Cro. Car. 301. 2 Lord Raym. 789. (15) 2 R. S. 505, 30, &c.

In such case, after fourteen days' notice, the (16) Where there is a sufficient distress up- justices may put the landlord in possession; on the premises, the landlord cannot maintain and the 57 Geo. III. c. 52. extends the regulaan ejectment, upon his right of re-entry, for tion to such tenants as are half a year in arrear. non-payment of rent, under this statute : nor As to the proceeding of the justices under can he maintain an action of cjectment for a these acts, and how far the record of such proforfeiture at common law, unless he has de. ceedings will be conclusive in their behall, manded the rent on the last of the specified see 3 Bar. & Cres. 649. days for the payment thereof, just before sun. Difficulties having frequently arisen, and ket. As where the proviso in a lease is, "that considerable expenses having been incurred if the rent shall be behind, and unpaid by the by reason of the refusal of persons, who had space of thirty, or any other number of days been permitted to occupy, or who had intruded after the days of payment, it shall be lawful themselves into parish houses, to deliver up for the lessor to re-enter.” A demand must possession of such houses, by stat. 59 Geo. III. be made of the precise rent in arrear, on the c. 12. 8. 24. two justices are empowered in thirtieth or other last day, a convenient time such cases to cause possession to be delivered jast before and until sunset upon the land, or to church wardens and overseers. The mode at the dwelling-house, or the most notorious of proceeding is prescribed by this statute. place. 1 Saund. 287. n. 16. 7 T. R. 117. The visitors and seoffees of a free grammar

The 11 Geo. II. c. 19. s. 16. gives the land school, who have dismissed the school master lord a summary remedy hy application to two for misconduct, cannot maintain ejectment for justices of the peace, where a tenant at rack- the school house till they have determined the rent, or at full three-fourths of the yearly value, master's interest therein, upon sumroons in being in arrear a year's rent, deserts the pre- the ordinary manner, when he might be heard mises and leaves the same uncultivated or to answer the charges forming the ground of unoccupied, and no sufficient distress thereon. dismissal. 1 Bing. 357. 8 T. R. 109.

(43) See Hov, n. (43) at the end of the Vol. B. III.


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ment 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 remedy was already provided (6). 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 (17).

(6) F. N. B. 198. (17) In New-York the Revised Statutes can only plead the general issue or demur. have 'essentially altered the action of eject. The verdict specifies minutely which of the ment; all the old fictions are abolished. The plaintiffs is entitled to recover, and against plaintiff is the person actually claiming title, which of the defendants; also, whether he is and the defendant must be an actual occupant to recover the whole or an undivided share, of the lands, or, if there be no occupant, he the fee, or a smaller specified estate. must be a person claiming title. The action is This action may be brought as well where commenced by serving a copy of the declara- a writ of right or dower before lay, as in tion on the defendant, and also a notice sub- the cases formerly allowed for the action of joined in writing, stating that the declaration ejectment: but cannot be brought by a mortwill be filed on some specified day in the same gagee, or his assigns or representatives. term, if it be term time, or else in the next As to the conclusiveness of the judgment, see term; and that a rule will then be entered re- ante, note 15. p. 194. quiring him to appear and plead in 20 days, Instead of the action for mense profits, the or judgment will be entered against him and plaintiff, in one year after judgment, enters on he be deprived of the premises. The decla. the record a suggestion of his claim, which is ration must be served on the defendant person in the same form as the declaration for use ally, or on some person of suitable age at his and occupation; but is served in the same residence: but if it be not served personally, way as the declaration in ejectment. The the rule to plead cannot be entered without rule to plead and other proceedings are then the special order of the court.

as in ordinary personal actions. But the deThe declaration states that the plaintiff was fendant cannot controvert the matters that possessed of the premises on some specified might have been controverted in the ejectment day after his title accrued, and that the de- suit : be may, however, show in mitigation of fendant, on some subsequent specified day, damages a subsequent recovery by himself or entered and withholds them unlawfully from another of the same premises, or of a part there. the plaintiff to his damage any nominal sum. of: he may also show the actual time at which

The premises must be described with such he entered. If the action be for dower, comcertainty that possession of them can be de- missioners are appointed to make admeasurelivered. The plaintiff must also state whe- ment of dower. (2 R. S. 303-312.) ther he claims the whole or an undivided share, By the 2 R. S. 312, &c., a person being and what that share is; whether he claims in three years in possession of lands or tenefee, for his own life or the life of another, or ments, and claiming the fee, may compel any for a term of years; and must specify such claimant to come into the Supreme Court and lives and the duration of the term. If the ac- controvert the plaintiff's title, or be forever tion be to recover dower, the widow states barred. But if the claimant be under any of that she was possessed of an undivided third the usual disabilities, the plaintiff cannot propart of the premises as her reasonable dower ceed in this way. See ante, p. 178, note (t). as widow of her husband, naming him.

Summary proceedings are also allowed (2 In any case (except of dower) there may be R. S. 512, &c.) against a tenant who holds several counts, and several parties may be over after the expiration of his term, or after named as plaintiffs, jointly in one count and taking the benefit of any insolvent act, or act separately in others.

for the relief of his person from imprison. The consent rule, and the confession of ment, or after a sale under an execution lease, entry, and ouster, being thus made un- against him, and the title under such sale be. necessary, are abolished.

coming perfected, or after default in payment The defendant may by rule of court or or- of rent, while in this last case no goods are der of a judge, compel the attorney for the on the premises sufficient to satisfy the rent plaintiff to produce his authority to sue : the by distress : or if the tenant leaves the premiproceedings then are as in ordinary actions ses unoccupied and uncultivated, and there until the verdict, except that the defendant are not sufficient goods to satisfy such distress.

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