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turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz. by assise of novel dis
seisin (a).40 But this depends upon the several statutes, which [*199] *create these respective interests (b), and which expressly provide and allow this remedy in case of dispossession. Upon which account it is that sir Edward Coke observes (c), that these tenants are said to hold their estates ut liberum tenementum, until their debts are paid: because by the statutes they shall have an assise, as tenants of the freehold shall have; and in that respect they have the similitude of a freehold (d). II. As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseisin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remediesa, ccording to the circumstances and situation of the wrongdoer: the writ of ejectione firmae; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum;41which lies not against the wrongdoer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.
1. A writ then of ejectione firmae, or action of trespass in ejectment (2), tieth where lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term (e). In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him (f). And by this writ the plaintiff shall recover back his term, or the remainder of it, with damages.
*Since the disuse of real actions, this mixed proceeding is become the common 42method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minute
(a) F. N. B. 178.
(b) Stat. Westm. 2. 13 Edw. I. c. 18. Stat. de mercatoribus, 27 Ed. III. c. 9. Stat. 23 Hen. VIII. c. 6, § 9.
(2) See in general, Adams on Ejectment; Tidd Prac. 8 ed. 518, &c.; Runington on Ejectm. by Ballatine; Com. Dig. Ejectment; 1 Chitty on Pl. 4th ed. 172.
In general ejectment will lie to recover possession of any thing whereon an entry can be made, and whereof the sheriff can deliver possession. But an ejectment cannot be maintained for a close, 11 Rep. 55. Godb. 53; a manor, without describing the quantity of land therein, Latch. 61. Lut. Rep. 301. Hetl. 146; a messuage and tenement, 1 East, 441. Stra. 834; but after verdict (even pending a rule to arrest the judgment on this ground) the court will give leave to enter the verdict according to the judge's notes for the messuage only, 8 East, 357; nor a messuage or tenement, 3 Wils. 23; nor a messuage situate in the parishes of A. and B. or one of them, 7 Mod. 457; nor for things that lie merely in
(40) See Hov. n. (40) at the end of Vol. B. III.
(c) 1 Inst. 43.
(d) See book II. ch. 10.
(e) F. N. B. 220.
(f) Seo Appendix, No. II. ◊ 1.
grant, not capable of being delivered in execution, as an advowson, common in gross, Cro. Jac. 146; a piscary, ib. Cro. Car. 492. 8 Mod. 277. 1 Brownl. 142. contra per Ashurst, J. 1 T. R. 361. And where the owner of the fee, by indenture, granted to A. free liberty to dig for tin, and all other metals, throughout certain lands therein described, and the use of all water, watercourses, and to make adits, &c. reserving to himself liberty to drive any new adit, and to carry any new watercourse over the premises granted, habendum for twenty-one years, with right of reentry for breach of covenants; this deed, it was held, did not amount to a lease, but contained a mere licence to dig, &c. and the grantee could not maintain ejectment for mines lying within the limits of the set, but not connected with the workings of the grantee. 2 B. & A. 724.
(41) Ib. (41) B. III. (42) Ib. (42) B. III.
ness, its history, the manner of its process, and the principles whereon it is grounded.
We have before seen (g), that the writ of covenant, for breach of the contract 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 firmae, 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 original writ nor prayed by the declaration (which are *calculated for damages merely, [*201] and are silent as to any restitution), viz. a judgment to recover the term, and a writ of possession thereupon (1). 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.
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 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
(g) See page 157.
(h) F. N. B. 145.
(i) See book II. ch. 9.
(k) P. 6. Ric. II. Ejectione firmae 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 firmae versus cesty que luy ouste; et sil soit ouste par son lessor, briefe de VOL. II.
covenant; et si par lessée 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. § 4. prope fin.
(m) 7 Edw. IV. 6. Per Fairfax; si home port ejectione firmae, le plaintiff recovera son terme qui est arere, si bien come in quare ejecit infra terminum; 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.
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 agree[*202] ment before-hand) 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 this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought 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 oust
First, he must shew a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seized or 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 shew 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 (3). 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 [*203] called during the exile of king Charles the *Second. This new
method entirely depends upon a string of legal 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 (4).
(p) Styl. Pract. Reg. 108. (edit. 1657.)
cases, provided for by the 4 Geo. II. c. 28, 11 Geo. II. c. 19, and 57 Geo. III. c. 52.
(3) When the remedy by ejectment is pursued in an inferior court, the fictions of the modern system are not applicable, for inferior (4) An actual entry is necessary to avoid a courts have not the power of framing rules for fine levied with proclamations, according to confessing lease, entry, and ouster, nor the the statute 4 Hen. VII. c. 24. see book 2. p. means, if such rules were entered into, of en- 352; and the demise laid in the ejectment forcing obedience to them. 1 Keb. 690. 795. must be subsequent to the entry; but that is Gilb. Eject. 38. Adams on Eject. 173. If the only case in which an actual entry is rethe rule requiring service of notice upon the quired, 2 Stra. 1086. Doug. 468. 1 T. R. tenant in possession cannot be observed, on 741. 4 Bro. P. C. 353. 3 Burr. 1895. 7 T. account of his having quitted, and his place R. 433. 1 Prest. Conv. 207. 9 East, 17; of residence is unknown, 2 Stra. 1064. 4 T. unless it is an ejectment brought to recover R. 461. the claimant must resort to the ancient on a vacant possession, and not by a landlord practice, Ad. Eject. 181. except in particular upon a right of re-entry under the 4 Geo. II.
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) (5); 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 *the plaintiff, and his ouster by Saunders [*204] himself, now made the 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 (6). This done, the declaration is altered by
(q) See Append. No. 11. § 1, 2. (r) 6 Mod. 309.
(s) Append. No. II. § 2.
c. 28; in which case the lessor or his attorney must actually seal a lease upon the premises to the plaintiff, who must be ejected by a real person. See the mode of proceeding, Adams on Eject. 173.
(5) The practice was reprobated, because it was considered that it provided no responsibility for costs in case the defendant succeeded. But this objection is now obviated, by its being always part of the consent rule, that in such case the lessor of the plaintiff will pay the costs, and an attachment will lie against him for disobedience of this, as of every other rule of courte Adams on Eject. 235. 298.
(6) It has been determined, that no ejectment can be maintained where the lessor of the plaintiff has not a legal right of entry; and the heir at law was barred from recovering in ejectment, where there was an unsatisfied term raised for the purpose of securing an annuity, though the heir claimed the estate subject to that charge. But a satisfied term
(u) Ibid. § 3.
may be presumed to be surrendered. 2 T. R.
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, after 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 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 (11).
(v) Styl. Pract. Reg. 108. 111. 265. 7 Mod. 70. Salk. 257. Burr. 1301.
(7) Before the following rules, it was necessary for lessor of plaintiff to prove on the trial the defendant's possession of the premises in question, although the defendant had entered into the general consent rule, to confess lease, entry, and ouster. 7 T. R. 327. B. & P. 573. But by rule K. B., M. T. 1820, it was ordered that in every action of ejectment, the defendant shall specify in the consent rule, for what premises he intends to defend, and shall consent in such rule to confess upon the trial, that the defendant (if he defends as tenant, or in case he defends as landlord, that his tenant) was at the time of the service of the declaration, in the possession of such premises; and that if upon the trial the defendant shall not confess such possession, as well as lease, entry, and ouster, whereby the plaintiff shall not be able further
(w) Bracton, l. 5. c. 10, 14.
to prosecute his suit against the said defend-
(9) 2 R. S. 342, § 17. See also id. 339, § 1, &c.
(10) A devisee, although he has never been in possession, has been permitted to defend as a landlord under this statute. 11 Geo. II. c. 19. 4 T. R. 122.
(11) Where an ejectment is defended merely to continue the possession of the premises, and no defence is made at the trial, the practice is for the crier of the court, first, to call the defendant to confess lease, entry, and ous