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To this end, in the proceedings(9) a lease for a term of years is slated 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), 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,(8) 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

прon 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 himself, now made the defendant

[ *204 instead of Stiles: which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must of course be non-suited 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. This done, the declaration is altered by 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.' But, if the lessor makes out his title in a (9) See Append. No. II. 22 1, 2.

(*) Ibid.

(*) Ibid. & 3. (*) Append. bio. II. & 2. 5 The practice was reprobated, because it was considered that it provided no responsi bility fo: 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 court. Adams on Eject. 235, 298.–Chitty.

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 may be presumed to be surrendered. 2 T. R. 695. 1 T. R. 758. In Doe on the demise of Bowerman vs. Sybourn, 7 T. R. 2, lord Kenyon declared that in all cases where trustees ought to convey to the beneficial owner he would leave it to the jury to presume, where such a presumption might reasonably be made, that they had anveyed accordingly, in order to prevent a just title from being defeated by a matter of form But if such a presumption cannot be made, he who has only the equitable estate cannot recover in ejectment. Jones vs. Jones, 7 T. R. 46. The doctrine respecting the presumption of a surrender of a term, though assigned to attend the inherit ance, still prevails. 2 B. & A. 710, 782. 3 Bar. & Cres. 616; but see Mr. Sugden's able essay on the subject of presuming the surrender of a term. A person who claims under an elegit sued out against the landlord cannot recover in ejectment against the tenant whose lease was granted prior to the plaintiff's judgment. 8 T. R. 2.--CHRISTIAN.

i 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 tbe general consent rule, to confess lease, entry, and ouster. 7 T. R. 327

(T) 6 Mod. 309.




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; 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 mus 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; 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 remainder-man or reversioner had u 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)* 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 *205]

ouster, the plaintiff, Smith, must indeed be there *non-suited, 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 defendant is broken, and therefore the plaintiff is put again in the 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.'

(*) Bracton, l. 5, c. 10, & 14.

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

1 B. & P. 573. But by rule in King's Bench, 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 to prosecute his buit against the said defendant, then no costs shall be allowed for not further prosecuting the same, but the said defendant shall pay costs to the plaintiff, in that case to de taxed. In the following year the same rule was adopted by the court of Common Pleas. See 2 Brod. & Bing: 470.–Chitty.

8 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.-Chitty.

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 ouster, and then the plaintiff, as in other cases of nonsuits, to come forth, or he will lose his writ of nisi prius. Though in thir case the judgment is given against the casual ejector, yet the costs are taxed as in other rases, 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 non-suited 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 ejectment the unsuccessful party may re-try the same question as often as he pleases without the leave of the court; 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 further prevent this repe tition of the action than by ordering the proceedings in one ejectment to be stayed til. 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 have been several trials in ejectment for the same premises, though the title was entirely legal, has granted a perpetual injunction. 1 P. Wms. 672.-Caristian.

New proceedir gs for the recovery of land have been created by the Common-Law


The damages recovered in these actions, though formerly tneir only 1stent, are now usually (since the title has been considered as the principal question) very small and inadequate, amounting commonly to one shilling, or soine other trivial sum.

In order therefore to complete the remedy when the possession has been long detained from him that hath 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.10. 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 sutiers judgment to go by default.(2) 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'; rat if the plaintiff sues for any antecedent profits the defendant may make a new defence."

(*) 4 Burr. 668. Procedure Act, 1852, and the former action of ejectment has given place altogether to this new procedure.

The form of action which has been abolished was valuable in this respect,-that it allowed no questions to be raised except that of title. If the person who brought the action had a right to possession, he was entitled to recover, without regard to whether the person in possession or who took defence to the action had ousted him or not. The new action is also an action for recovery of the land, without regard to any other claim which may exist between the parties.

An action of ejectment is now commenced by the issue of a writ directed to the persons in possession by name, and to all persons entitled to defend the possession of the pro perty claimed, which property must be described in the writ with reasonable certainty.

The writ must state the names of all the persons in whom the title is alleged to be; and it commands the persons to whom it is directed to appear, within sixteen days after service in the court from which it issued, to defend the possession of the property sued for, or such part thereof as they may think fit. It must also contain a notice that in default of appearance they will be turned out of possession. -STEWART.

It has not been deemed necessary to pursue the new procedure further than is con. taineri in the foregoing extract. The action has been divested of its cumbrous fictions, and all the ends of real justice are attained by a simple and intelligible process. Many of the United States had long preceded England in this valuable reform ; but several still continue to employ the ancient form; and in the circuit courts of the United States, in those States in which it was in use when those courts were established, it is still employed.-SHARSWOOD.

10 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 non-suited for default of the defendant's appearance, or of confession of lease, entry, and ouster; but ihe 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 mesne 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 the 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.”—Catty.


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.-Caristian.

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 actior of ejectment is in substance merely for the recovery


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 aniversally adopted in almost every case.

It is founded on the same prin. riple as the antient writs of assize, being calculated to try the mere possessory *206]

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


of the estate. But in one instance, in favour of landlords, a remedy by ejectment is given nearly resembling the ancient and 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 nonappearance, 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 show cause why he should not, upon being admitted defendant, besides 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 mesne profits down to the verdict or a day specified therein. See 1 Dowl. & 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. | Dowl. & Ryl. 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 statute, (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 Dowl. & Ryl. 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 Dowl. & 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 showing cause. 5 B. & A. 766. 1 Dowl. & Ryl. 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. & Ryl. 688. After a rule granted in a cause entitled Doe, &c. vs. Roe, to which the tenant in possession appeared, judgment was entered up and execution taken out against the tenant by name, and it was hela not to be irregular. 3 Dowl. & Ryl. 230.

The court, on making a rule absolute under this act (no cause being shown) 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 shown 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 prothonota 6 Moore, 54. See further, as to the proceedings on this statute, Tidd, 8 ed. 511, &c.-Cutty.

court to direct the application of that fiction so as to preven, fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and its nominal parties (as was resolved by all the judges)(y) are "judicially to be considered as the fictitious 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.''12

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 the 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.18 (5) Mich. 32 Geo. II. 4 Burr, 668.

(a) Cro. Car. 301. 2 Lord Raym. 789. (") Brownl. 129. Cro. Car. 192. Stra. 54. 12 Actions of ejectment, as has been observed, have succeeded to those real actious called possessory actions; but an inconvenience was found to result from them which did not follow from real actions, to which it has been found necessary to apply a remedy. Real actions could not be brought twice for the same thing; but a person might bring as many ejectments as he pleased,—which rendered the rights of parties subject to endless litigation. To remedy this, therefore, when two or more verdicts have been had upon the same title, and to the satisfaction of the court, the courts of equity will now grant a perpetual injunction to restrain the party from bringing any further ejectment. See Barefoot vs. Fry, Bunb. 158, pl. 228. Selw. N. P. 780.-ARCHBOLD.

13 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.

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 rack-rent, 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. 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 church-wardens 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 bure determined the master's interests therein, upon summons in the ordinary manner,

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