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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).

(x) 4 Burr. 668.

ter, and then the plaintiff, as in other cases of nonsuits, to come forth or he will lose his writ of nisi prius. Though in this case the judgment is given against the casual ejector, yet the costs are taxed as in other cases, and if the real defendant refuses to pay them, the court will grant an attachment against him. Salk. 259. In like manner, if there be a verdict for the defendant, or the nominal plaintiff be nonsuited without the default of the defendant, the defendant must tax his costs and sue out a writ of execution against the nominal plaintiff; and if, upon serving the lessor of the plaintiff with his writ and a copy of the rule to confess lease, entry, and ouster, the lessor of the plaintiff does not pay the costs, the court will grant an attachment against him. 2 Cromp. Pract. 214. In eject ment the unsuccessful party may re-try the same question as often as he pleases without the leave of the court;t for by making a fresh demise to another nominal character, it becomes the action of a new plaintiff upon another right, and the courts of law cannot any farther prevent this repetition of the action, than by ordering the proceedings in one ejectment to be stayed till the costs of a former ejectment, though brought in another court, be discharged. 2 Bla. Rep. 1158. Barnes, 133. But a court of equity, in some instances where there has been several trials in ejectment for the same premises, though the title was entirely legal, has granted a perpetual injunction. 1 P. W. 672.

(12) But with reference to mesne profits accrued up to the day of the verdict, and in cases where the tenancy existed under lease or agreement, resort to this separate action is superseded by sect. 2 of stat. 1 Geo. IV. c. 87, which enacts, "Wherever thereafter it shall appear on the trial of any ejectment, at the suit of a landlord against a tenant, that such tenant or his attorney hath been served with due notice of trial, the plaintiff shall not be

† See p. 194, note 15, ante, contra.

In New-York the statute expressly limits the recovery to six years' rent and profits, and the defendant may set off the value of his

nonsuited for default of the defendant's appearance, or of confession of lease, entry, and ouster; but the production of the consent rule and undertaking of the defendant, shall in all such cases be sufficient evidence of lease, entry, and ouster; and the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the plaintiff on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, to go into evidence of the mense profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same, down to the time of the verdict given in the cause, or to some preceding day, to be specially mentioned therein; and the jury on the trial finding for the plaintiff, shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits. The said act not to bar landlord from bringing trespass for the mesne profits to accrue from the verdict or the day so specified therein down to the day of the delivery of possession of the premises recovered in the ejectment." (13) Contra now in New-York, by 2 R. S. 311, § 48.

(14) The defendant may plead the statute of limitations, and by that means protect himself from the payment of all mesne profits, except those which have accrued within the last six years. Bull. N. P. 88.‡

The common remedy by ejectment is generally treated as a mixed action, the party interested thereby recovering his estate, and damages for the ouster; but as those damages are nominal, and the claimant must, in order to recover the intermediate profits, resort to an action of trespass, such action of ejectment is in substance merely for the recovery of the improvements: the plaintiff recovers nothing for the use of the improvements. (2 R. S. 311, § 49, &c.)

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 landlords, a remedy by ejectment is given nearly resembling the ancient mixed action; for it is enacted by 1 Geo. IV. c. 87. that upon refusal by a late tenant to deliver up possession upon the expiration of his tenancy by lease or written agreement, and after lawful demand in writing, the landlord, on bringing an ejectment, may address a notice at the foot of the declaration to the tenant requiring him to appear in court on the first day of the next term; or if in Wales, or the counties palatine of Chester, Lancaster, or Durham, on the first day of the assizes, or appearance day, there to be made defendant, and to find bail; or in case of his non-appearance, upon production of the lease, agreement, &c. and the proper affidavits by the landlord, &c. the court may grant a rule, calling on the tenant to shew cause why he should not, upon being admitted defendant, beside entering into the common rule, undertake, in case a verdict should pass against him, to give the plaintiff a judgment, to be entered up against the real defendant of the term next preceding the trial; and also, why he should not enter into a recognizance by himself and two sufficient sureties in a reasonable sum (to be named), conditioned to pay the costs and damages which shall be recovered by the plaintiff in the action. Upon the rule being made absolute, if the tenant do not conform, judgment to be for the plaintiff. The act further provides, that whether the defendant appear or not at the trial, the plaintiff may go into proof, and the jury give damages for mense profits down to the verdict or a day specified therein. See 1 Dow. & Ryl. 433. But when the required undertaking is given, it is provided, that if it appear to the judge that the finding of the jury was contrary to the evidence, he may order a stay of execution till the fifth day of the next term; and he is bound to make this order if the defendant desire it, upon his undertaking to give security not to commit any kind of waste, or sell the crops, &c. And if the result of the trial under this act be against the landlord, the tenant shall have judgment with double costs.

The statute 1 Geo. IV. c. 87. does not extend to the case of a lessee, holding over after notice to quit, given by himself, where his tenancy has not expired by the efflux of time. 1 Dow. & Ry. 540. And where a tenant holds from year to year, without a lease or agreement in writing, it is not within the first section of the sta

tute (1 Geo. IV. c. 87.) 5 B. & A. 770. But an agreement in writing, for apartments for three months certain, comes within the meaning of the words of the act, where the party holds for any term, or number of years certain, or from year to year. 5 B. & A. 766. 1 Dow. & Ry. 433. A tenant being in possession, under an agreement that the landlord should grant a lease for eight years, and that the tenant should pay 40s. for every day he held over, continued to hold the whole time, though the lease was never granted; and upon his holding over, notice to quit and demand of possession, with notice of ejectment, was regularly served. It was held that the tenant was not to be treated as a tenant from year to year, and that the demand of possession was sufficient notice within the statute, so as to entitle the plaintiff to the benefit of the undertaking, and security required by that statute. 2 Dow. and Ryl. 565.

The rule nisi, calling on a tenant to enter into a recognizance under this statute, need not specify all the particulars thereby required, as the court may mould the rule according to its requisites, upon shewing cause. 5 B. & A. 766. 1 Dowl. & Ry. 433. The time within which the undertaking and security required by the statute shall be given, is to be fixed by the court at the time the rule is granted. 2 Dowl. & Ry. 688. After a rule granted in a cause, entitled Doe, &c. v. Roe, to which the tenant in possession appeared, judgment was entered up, and execution taken out against the tenant by name, and it was held not to be irregular. 3 Dow. & Ryl. 230.

The court, on making a rule absolute, under this act (no cause being shewn), for the tenant's undertaking to give the plaintiff judgment, to be entered up against the real defendant, and to enter into a recognizance in a reasonable sum, conditioned to pay the costs and damages which should be recovered by the plaintiff in the action; ordered the tenant to appear in the next succeeding term, to find such bail as was specified in the former rule; and on no cause being shewn to that order, they directed the rule for entering up judgment for the plaintiff to be made absolute. The court can only give a reasonable sum for the costs of the action, and not for the mesne profits, the amount of which must be ascertained by the prothonotary. 6 Moore, 54. See further, as to the proceedings on this statute, 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 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 (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 terminum13lieth, 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, 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 firmae or eject

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

(15) 2 R. S. 505, 30, &c.

(16) Where there is a sufficient distress upon the premises, the landlord cannot maintain an ejectment, upon his right of re-entry, for non-payment of rent, under this statute: nor can he maintain an action of ejectment for a forfeiture at common law, unless he has demanded the rent on the last of the specified days for the payment thereof, just before sunset. As where the proviso in a lease is, "that if the rent shall be behind, and unpaid by the space of thirty, or any other number of days after the days of payment, it shall be lawful for the lessor to re-enter." A demand must be made of the precise rent in arrear, on the thirtieth or other last day, a convenient time just before and until sunset upon the land, or at the dwelling-house, or the most notorious place. 1 Saund. 287. n. 16. 7 T. R. 117.

(a) Cro. Car. 301. 2 Lord Raym. 789.

In such case, after fourteen days' notice, the justices may put the landlord in possession; and the 57 Geo. III. c. 52. extends the regulation to such tenants as are half a year in arrear. As to the proceeding of the justices under these acts, and how far the record of such proceedings will be conclusive in their behalf, see 3 Bar. & Cres. 649.

Difficulties having frequently arisen, and considerable expenses having been incurred by reason of the refusal of persons, who had been permitted to occupy, or who had intruded themselves into parish houses, to deliver up possession of such houses, by stat. 59 Geo. III. c. 12. s. 24. two justices are empowered in such cases to cause possession to be delivered to churchwardens and overseers. The mode of proceeding is prescribed by this statute. The visitors and feoffees of a free grammar school, who have dismissed the school-master for misconduct, cannot maintain ejectment for the school-house till they have determined the master's interest therein, upon summons in the ordinary manner, when he might be heard to answer the charges forming the ground of dismissal. 1 Bing. 357. 8 T. R. 109. (43) See Hov. n. (43) at the end of the Vol. B. III.

The 11 Geo. II. c. 19. s. 16. gives the landlord a summary remedy by application to two justices of the peace, where a tenant at rackrent, or at full three-fourths of the yearly value, being in arrear a year's rent, deserts the premises and leaves the same uncultivated or unoccupied, and no sufficient distress thereon.

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).

(b) F. N. B. 198.

(17) In New-York the Revised Statutes have essentially altered the action of ejectment; all the old fictions are abolished. The plaintiff is the person actually claiming title, and the defendant must be an actual occupant of the lands, or, if there be no occupant, he must be a person claiming title. The action is commenced by serving a copy of the declaration on the defendant, and also a notice subjoined in writing, stating that the declaration will be filed on some specified day in the same term, if it be term time, or else in the next term; and that a rule will then be entered requiring him to appear and plead in 20 days, or judgment will be entered against him and he be deprived of the premises. The declaration must be served on the defendant personally, or on some person of suitable age at his residence but if it be not served personally, the rule to plead cannot be entered without the special order of the court.

The declaration states that the plaintiff was possessed of the premises on some specified day after his title accrued, and that the defendant, on some subsequent specified day, entered and withholds them unlawfully from the plaintiff to his damage any nominal sum.

The premises must be described with such certainty that possession of them can be delivered. The plaintiff must also state whether he claims the whole or an undivided share, and what that share is; whether he claims in fee, for his own life or the life of another, or for a term of years; and must specify such lives and the duration of the term. If the action be to recover dower, the widow states that she was possessed of an undivided third part of the premises as her reasonable dower as widow of her husband, naming him.

In any case (except of dower) there may be several counts, and several parties may be named as plaintiffs, jointly in one count and separately in others.

The consent rule, and the confession of lease, entry, and ouster, being thus made unnecessary, are abolished.

The defendant may by rule of court or order of a judge, compel the attorney for the plaintiff to produce his authority to sue: the proceedings then are as in ordinary actions until the verdict, except that the defendant

can only plead the general issue or demur. The verdict specifies minutely which of the plaintiffs is entitled to recover, and against which of the defendants; also, whether he is to recover the whole or an undivided share, the fee, or a smaller specified estate.

This action may be brought as well where a writ of right or dower before lay, as in the cases formerly allowed for the action of ejectment: but cannot be brought by a mortgagee, or his assigns or representatives.

As to the conclusiveness of the judgment, see ante, note 15. p. 194.

Instead of the action for mense profits, the plaintiff, in one year after judgment, enters on the record a suggestion of his claim, which is in the same form as the declaration for use and occupation; but is served in the same way as the declaration in ejectment. The rule to plead and other proceedings are then as in ordinary personal actions. But the defendant cannot controvert the matters that might have been controverted in the ejectment suit: he may, however, show in mitigation of damages a subsequent recovery by himself or another of the same premises, or of a part thereof: he may also show the actual time at which he entered. If the action be for dower, commissioners are appointed to make admeasurement of dower. (2 R. S. 303-312.)

By the 2 R. S. 312, &c., a person being three years in possession of lands or tenements, and claiming the fee, may compel any claimant to come into the Supreme Court and controvert the plaintiff's title, or be forever barred. But if the claimant be under any of the usual disabilities, the plaintiff cannot proceed in this way. See ante, p. 178, note (†).

Summary proceedings are also allowed (2 R. S. 512, &c.) against a tenant who holds over after the expiration of his term, or after taking the benefit of any insolvent act, or act for the relief of his person from imprisonment, or after a sale under an exccution against him, and the title under such sale becoming perfected, or after default in payment of rent, while in this last case no goods are on the premises sufficient to satisfy the rent by distress: or if the tenant leaves the premises unoccupied and uncultivated, and there are not sufficient goods to satisfy such distress.



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 another, and therefore necessarily accompanied with some force, [*209] an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought (2).

(a) See page 123.

(1) See in general, Com. Dig. Trespass; Bac. Ab. Trespass; Vin. Ab. Trespass; 1 Chitty on Pl. 149 to 172.

(2) See these distinctions fully considered, 1 Chitty on Pl. 115 to 122, and 149 to 172. The distinctions between actions of trespass vi et armis for an immediate injury, and actions of trespass upon the case for a consequential damage, are frequently very subtle see the subject much considered in 2 Bl. Rep. 892.† In a case where an action of trespass vi et armis was brought against the defendant for throwing a lighted squib in a public market, which fell upon a stall, the owner of which, to defend himself and his goods, took it up and threw it to another part of the market, where it struck the plaintiff and put out his eye; the question was much discussed, whether the person injured ought to have brought an action of trespass vi et armis, or an action upon the case; and one of the four judges strenuously contended that it ought to have been an action upon the case. But I should conceive, that the question was more properly this, viz. whether an action of trespass vi et armis lay against the original or the intermediate

thrower, or whether the act of the second thrower was involuntary, (which seems to have been the opinion of the jury), or wilful and mischievous, and if so, whether the first thrower alone ought not to have been answerable for the consequences. For if A. throws a stone at B., which, after it lies quietly at his foot, B. takes up and throws again at C., it is presumed that C. has his action against B. only; but if it is thrown at B., and B., by warding it off from himself, gives it a different direction, in consequence of which it strikes C., in that case, it is wholly the act of A., and B. must be considered merely as an inanimate object, which may chance to divert its course. In the case of Leame v. Bray, 3 East, 598, it was decided, that if one man drives a carriage, being on the wrong side of the road, against another carriage, though uninten tionally, the action ought to be trespass vi et armis, and the court declare generally, that if the injurious act be the immediate result of the force originally applied by the defendant, and the plaintiff be injured by it, it is the subject of an action of trespass vi et armis by all the cases both ancient and modern.

In New-York, by 2 R. S. 553, § 16, case may be brought wherever trespass could, except for wrongs to real estate.

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