PRIVATE WRONGS.
BOOK III.
CH. 11.

CHAPTER THE ELEVENTH.
OF DISPOSSESSION, OR OUSTER, OF
CHATTELS REAL.

HAVING in the preceding chapter confidered with fomeattention the feveral fpecies of injury by difpoffeffion or oufter of the freehold, together with the regular and well-connected fcheme of remedies by actions real, which are given to the fubject by the common law, either to rcover the poffeffion only, or elfe to recover at once the poffeffion, and alfo te eftablifh the right of property ; the method which I there marked out leads me next to confider injuries by oufter, or difpoffeffion, of chattels real ; that is to fay, by amoving the poffeffion of the tenant either from an eftate by ftatute-merchant, ftatute-ftaple, or elegit ; or from an eftate for years.

I. OUSTER, or amotion of poffeffion, from eftates held by either ftatute or eligit, is only liable to happen by a fpecies of diffeifin, or turning out of the legal proprietor, before his eftate is determined by raifing the fum for which it is given him in pledge. And for fuch oufter, though the eftate e merely a chattel intereft, the owner fhall have the fame remedy as for an injury to a freehold ; viz. by affife of novel diffeifin ^a. But this depends upon the feveral ftatutes, which create thefe refpective

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^a F.N.B.178.
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interefts ^b,
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interefts ^b, and which expreffly provide and allow this remedy in café of difpoffeffion. Upon which account it is that fir Edward Coke obferves ^c, that thefe tenants are faid to hold their eftates ut liberum tenementum, until their debts be paid : becaufe by the ftatutes they fhall have an affife, as tenant of the freehold fhall have ; and in that refpect they have the fimilitude of a free-hold ^d.

II. As for oufter, or amotion of poffeffion, from an eftate for years ; this happens only by a like kind of diffeifin, ejection, or turining 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 remedies, according to te circumftances and fituation of the wrongdoer : the writ of ejectione firmae ; which lies againft any one, the leffor, reverfioner, remainderman, or any ftranger, who is himfelf the wrongdoer and has committed the injury complained of : and the writ of quare ejecit infra terminum ; which lies not againft the wrongdoer or ejetor himfelf, but his feoffee or other perfon claiming under him. Thefe are mixed actions, fomewhat between real and perfonal ; for therein are two things recovered, as well reftitution of the term of years, as damages for the oufter or wrong.

1. A WRIT then of ejectione firmae, or action of trefpafs in ejectment, lieth, where lands or tenements are let for a term of years ; and afterwards the leffor, reverfioner, remainder-man, or any ftranger, dothe eject or ouft the leffee of his term ^e. In this café he fhall have this writ of ejection, to call the defendant to anfwer for entering on the lands fo demifed to the plaintiff for a term that is not yet expired, and ejecting him ^f. And by this writ it, with damages.

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^b Stat. Weftm.2. 13.Edw. I.c.18. Stat. de mercatoribus, 27 Edw. III. c.9.
^c 1 Inft.43.
^d See book II. ch.10.
^e F.N.B.220.
^f See appendix, N^o.II. §.1.
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SINCE the difufe of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. It may not therefore be improper to delineate, with fome degree of minutenefs, it's hiftory, the manner of it's procefs, and the principles whereon it is grounded.

WE have before feen ^g, that the writ of covenant, for breach of the contract contained in the leafe fro years, was antiently the only fpecific remedy for recovering againft the leffor term from which he had ejected his leffee, together with damages for the oufter. But if the leffee ws ejected by a ftranger, claiming under a title fuperior ^h to that of the leffor, or by a grantee of the reverfion, (who might at any time by a common recovery have deftroyed the term ⁱ) though the leffe might ftill maintain an action of covenant againft the leffor, for non-performance of his contract or leafe, yet he could not by any means recover the term itfelf. If the oufter was committed by a mere ftranger, without any title to the land, the leffor might indeed by a real action recover poffeffion of the freehold, but the leffee had no other remedy againft the ejector but in damages, by a writ of ejectione firmae, for the trefpafs committed in ejecting him from his farm ^k. But afterwards, when the courts of equity began to oblige the ejector to make a fpecific reftitution of the land to the party immediately injured, the courts of law alfo adopted the fame method of doing complete juftice ; and, in the profecution of a writ of ejectment, introduced a fpecies of remedy not warranted by the original writ nor prayed by the declaration (which go only for

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^g See pag.150.
^h F.N.B. 145.
ⁱ See book II. ch.9.
^k p.6. Ric.II. Ejectione firmae n'eft que un action de trefpafs en fon nature, et le plaintiff ne recovera fon terme que eft a venir, nient plus que en trefpafs home recovera damages pur ftefpafs nient fait, mes a fefer ; mes il convient a fuer par action de covenant al comen law a recoverer fon terme : quod tota curia conceffit. Et per Belknap, la comen ley eft, lou home eft oufte de don terme per eftranger, il avera ejectione firmae verfus cefty que luy onfte ; et fil foit oufte par fon leffor, briefe de covenant ; et fi par leffee ou grantee de reverfion, briefe de covenant verdus fon leffor, et countera efpecial count, & c. (Fitz. abr. t. eject. firm.2.)
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damages merely, and are filent as to any reftitution) viz. a judgment to recover the term, and a writ of poffeffion thereupon ^l. This method feems to have been fettled as early as the reign of Edward IV ^m : though it hath been faid ⁿ to have firft begun under Henry VII, becaufe it probably was then firft applied to it's prefent principal ufe, that of trying the title to the land.

THE better to apprehend the contrivance, whereby this end is effected, we muft recollect that the remedy by ejectment is in it's original an action brought by one who hath a leafe for years, to repair the injury done him by difpoffeffion. In order therefore to convert it into a method of trying titles to the freehold, it is firft neceffary that the claimant do take poffeffion of the lands, to empower him to conftitute a leffe for years, that may be capable of receiving this injury of difpoffeffion. 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 poffeffion of the land : and indeed it was doubted at firft, whether this occafional poffeffion, taken merely for the purpofe of conveying the title, excufed the leffor from the legal guilt of maintenance ^o. When therefore a perfon, who hath right of entry into lands, determines to acquire that poffeffion, which is wrongfully withheld by the prefent tenant, he makes (as by law he may) a formal entry on the premifes ; and being fo in poffeffion of the foil, he there, upon the land, feals and delivers a leafe for years to fome third perfon or leffe : and, having thus given him entry, leaves him in poffeffion of the premifes. This leffee is to ftay upon the land, till the prior tenant, or he who had the previous poffeffion, enters thereon afrefh and oufts him ; or till fome other perfon (either by accident or by agreement beforehand) comes upon the land, and turns him out or ejects him.

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^l See append. N^o.II. §.4. prope fin.
^m 7 Edw. IV.6. Per Fairfax ; f: home part ejectione le plaintiff recovera fon terme qui eft arere, fibien come in quare ejecit infra terminum ; et, fi nul foit arere, donques tout in damages. (Bro Abr. t.quare ejecit infra termnum.6.).
ⁿ F.N.B.220.
^o 1 Ch. Rep. append.39.
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For this injury the leffee is entitled to his action of ejectment againft the tenant, or this cafual ejector, whichever it was that oufted him, to recover back his term and damages. But where this action is brought againft fuch a cafual ejector as is before mentioned, and not againft the very tenant in poffeffion, the court will not fuffer the tenant to lofe his poffeffion without any opportunity to defend it. Wherefore it is a ftanding rule, that no plaintiff fhall proceed in ejectment to recover lands againft a cafual ejector, without notice given to the tenant in poffeffion (if any order to maintain the action, the plaintiff muft, in café of any defence, make out four points before the court ; viz. title, leafe, entry, and oufter. Firft, he muft fhew a good title in his leffor, which brings the matter of right entirely before the court ; then, that the leffor, being feifed by virtue of fuch title, did make him the leafe for the prefent term ; thirdly, that he, the leffee or plaintiff, did enter or take poffeffion in confequence of fuch leafe ; and then, laftly, that the defendant oufted or ejected him. Whereupon he fhall have judgment to recover his term and damages ; and fhall, in confequence, have a writ of poffeffion, which the fheriff is to execute, by delivering him the undifturbed and peaceable poffeffion of his term.

THIS is the regular method of bringing an action of ejectment, in which the title of the leffro moces collaterally and incidentally before the court, in order to fhew the injury done to the leffee by this oufter. This method muft be ftill continued in due form and ftrictnefs, fave only as to the notice to the tenant, whenever the poffeffion is vacant, or there is no actual occupant of the premifes ; and alfo in fome other cafes. But, as much trouble and formality were found to attend the actual making of the leafe, entry, and oufter, a new and more eafy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premifs in difpute, was invented fomewhat more than a century ago, by the lord chief juftice Rolle, who then fat in the court of upper bench ; fo called during the exile of king Charles

the
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the fecund. This new method entirely depends upon a ftring of legal fictions : no actual leafe is made, no actual entry by the plaintiff, no actual oufter by the defendant ; but all are merely ideal, for the fole purpofe of trying the title. To this end, in the proceedings ^p a leafe for a term of years is ftated to have been action ; as by John Rogers to Richard Smith ; which plaintiff ought to be fome real perfon, and not merely and ideal fictitious one who has no exiftence, as frequently though unwarrantably practifed ^q : it is alfo ftated that Smith, the leffe, entered ; and that the defendant William Stiles, who is called the cafual ejector, oufted him ; for which oufter he brings this action. As foon as this action is brought, and the complaint fully ftated in the declaration ^r, Stiles, the cafual ejector, or defendant, fends a written notice to the tenant in poffeffion of the lands, as George Saunders, informing him of the action brought by Richard Smith, and tranfmitting him a copy of the declaration ; withal affuring him that he, Stiles the defendant, has no title at to the premifes, and fhall make no defence ; and therefore advifing the tenant to appear in court and defend his own title : otherwife the cafual ejector will fuffer judgment to be had againft him ; and thereby he, the actual tenant Saunders, will inevitably be turned out of poffeffion ^s. On receipt of this friendly caution, if the tenant in poffeffion does not within a limited time apply to the court to be admitted a defendant in the ftead of Stiles, he is fuppofed to have no right at all ; and, upon judgment being had againft Stiles the cafual ejector, Saunders the real tenant will be turned out of poffeffion by the fheriff.

BUT if the tenant in poffeffion applies to be made defendant, it is allowed him upon this condition ; that he enter into a rule of court ^t to confefs, at the trial of the caufe, three of the four requifites for the maintenance of the plaintiff's action ; viz.

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^p See appendix, N^o.II. §.1,2.
^q 6 Mod.309.
^r Append. N^o.II. §.2.
^s Ibid.
^t Ibid. §.3.
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the leafe of Rogers the leffor, the entry of Smith the plaintiff, and his oufter by Saunders himfelf, now made the defendant inftead of Stiles : which requifites, as they are wholly fictitious, fhould the defendant put the plaintiff to porve, he muft of courfe be nonfuited for want of evidence ; but by fuch ftipulated confeffion of leafe, entry, and oufter, the trual will now ftand upon the merits of he title only. This done, the declaration is altered by inferting the name George Saunders inftead of William Stiles, and the caufe goes down to trial under the name of Smith (the plaintiff) on the demife of Rogers, (the leffor) againft Saunders, the newe defendant. And therein the leffor of the plaintiff is bound to make out a clear title, otherwife his fictitious leffee cannot obtain judgment to have poffeffion of the land for the term fupppofed to e granted. But, if the leffor makes out his title in a fatisfactory manner, then judgment and a writ of poffeffion fhall go fro Richard Smith the nominal plaintiff, who by this trial has proved the right of John Rogers his fuppofed leffor. Yet, to prevent fraudulent recoveries of the poffeffion, by collufion with the tenant of the land, all tenants are obliged by ftatute 11 Geo.II. c.19. on pain of forfeiting three years rent, to give notice to their landlord, when fervid with any declaration id ejectment : and any landlord may by leave of the court be made a co-defendant to the action ; which indeed he had a right to demand, long before the provifion of this ftatute ^u : in like manner as (previous to the ftatute of Weftm. 2. c.3.) if in a real action the tenant of the freehold made default, the remainder-man or reverfioner had a right to come in and defend the poffeffion ; left, if judgment were had againft the tenant ; the eftate of thofe behind fhould be turned to a naked right ^w. But if the new defendant fails to appear at the trial, and to confefs leafe, entry, and coufter, the plaintiff Smith muft indeed be there nonfuited, for want of porving thofe requifites ; but judgment will in the end be entered againft the cafual ejector Stiles : for the condition on which Saunders was admitted a defendant is broken, and therefore the plaintiff is put

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^u 7 Mod.70. Salk.257.
^w Bracton l.5.c.10. §.14.
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again in the fame fituation as if he never had appeared at all ; the confequence of which (we have feen) would have been, that judgment would have been entered for the plaintiff, and the fheriff, by virtue of a writ for that purpofe, would have turned out Saunders, and delivered poffeffion to Smith. The fame procefs therefore as would have been had, provided no conditional rule had been made, muft now be purfued as foon as the condition is broken. But execution fhall be ftayed, if any landlord after the difault of his tenant applies to be made a defendant, and enters into the ufual rule, to confefs leafe, entry, and oufter ^x.

THE damages recovered in thefe actions, though formerly their only intent, are now ufually (fince the title has been confidered as the principal queftion) very fmall and inadequate ; amounting commonly to one fhilling or fome other trivial fum. In order therefore to complete the remedy, when the poffeffion has been long detained from him that has right, an action of trefpafs alfo lies, after a recovery in ejectment, to recover the mefne profits which the tenant in poffeffion ahs wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the judgment, or his leffor, againft the tenant in poffeffion ; whether he be made party to the judgment, or fuffers judgment to go by default ^y.

SUCH is the modern way, of obliquely bringing in queftion the title to lands tenements, in order to try it in this collateral manner ; a method which is now univerfally adopted on almoft every café. It is founded on the fame principle as the antient writs of affife, being calculated to try thofe real actions, as being infinitely more convenient for attaining the end of juftice ; becaufe, the form of the proceeding being intirely fictitious, it is wholly in the power of the court to direct the application of that fiction, fo as to prevent fraud an chicane, and evifcerate he very truth of the title. The writ of ejectment and it's nominal parties (as

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^x Stat. 11.Geo.II.c.19.
^y 4 Burr.668.
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was refolved by all the judges ^z) are “judicially to be confidered as the fictitious form of an action, rally brought by the leffor of the plaintiff againft the tenant in poffeffion : invented, under the control and power of the court, for the advancement or juftice in many refpects ; and to force the parties to go to trail on the merits, without being intangled in the nicety of pleadings on either fide.”

BUT a writ of ejectment is not an adequate means to try the title of all eftates ; for on fuch things whereon an entry cannot in fact be made, no entry fhall be fuppofed by any fiction of the parties. Therefore an ejectment will not lie of an advowfon, a rent, a common, or other incorporeal hereditament ^a ; except for tithes in the hands of lay appropriators, by the exprefs purview of ftatute 32 Hen. VIII. c.7. which doctrine hath fince been extended by analogy to tithes in the hands of the clergy ^b : nor will it lie in fuch cafes, where the entry of him that hath right is taken away by defceny, difcontinuance, twenty years dif-poffeffion, or otherwife.

THIS action of ejectment is however rendered a very eafy and expeditious remedy to landlords whofe tenant are in arrere, by ftatute 4 Geo.II.c.28. which enacts, that every landlord, who hath by his leafe a right of re-entry in café of non-payment of rent, when half a year's rent is due, and no fufficient diftrefs is to be had, may ferve a declaration in ejectment on his tenant, or fix the fame upon fome notorious part of the premifes, which fhall be valid, without any formal re-entry or previous demand of rent. And a recovery id fuch ejectment fhall be final and conclufive, both in law and equity, unlefs the rent and all cofts be paid or tendered within fix calendar months afterwards.

2. THE writ of quare ejecit infra terminum lieth, by the antient law, where the wrongdoer or ejector is not himfelf in poffef-

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^z Mich.32 Geo.II. 4 Burr.668.
^a Brownl.129. Cro. Car.492. Stra.54.
^b Cro. Car.301. 2 Lord Raym.789.
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fion of the lands, but another who claims under him. As where a man leafeth lands to another for years, and, after, the leffor or reverfioner entereth and maketh a feoffment in fee or for life of the fame lands to a ftranger : now the leffee cannot bring a writ of ejectione firmae or ejectment againft the feoffee ; becaufe he did not eject him, but the reverfioner : neither can he have any fuch action to recover his term againft the reverfioner, who did ouft him ; becaufe he is not now in poffeffion. And upon that account this writ was devifed, upon the equity of the ftatute Weftm.2.c.24. as in cafe where no adequate remedy was already provided ^c. And the action is brought againft the feoffee for deforcing, or keeping out, the original leffee during the continuance of his term : and herein, as in the ejectment, the plaintiff fhall recover of much of the term as remains, and alfo damages for that portion of it, whereof he has been unjuftly deprived. But fince the intruduction of fictitious oufters, whereby the title may be tried againft any tenant in poffeffion (by what means foever he acquired it) this action is fallen into difufe.

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^c F.N.B.198.
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