Although the remedy by ejectment has itself been recently much simplified, yet, inasmuch as it has become the common method of trying the title to lands or tenements, it may not be improper to delineate, with some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded.

Ejectment.

Ejectment was originally an action brought by one who had a lease for years, to repair the injury done him by dispossession. In order, therefore, to convert it into a method of trying title to the freehold, it was first necessary that the claimant should take possession of the lands, to empower him to constitute a lessee for years, who might be capable of receiving this injury of dispossession. When, therefore, a person, having a right of entry into lands, determined to acquire that possession, which was wrongfully withheld by the tenant, he made (as by law he might) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, sealed and delivered a lease for years to some third person or lessee: and having thus given him. entry, left him in possession of the premises. This lessee was to stay upon the land, till the prior tenant, or he who had the previous possession, entered thereon afresh and ousted him; or till some other person (either by accident or by agreement beforehand) should come upon the land, and turn him out or eject him. For this injury, when committed, the lessee became 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 was brought against such a casual * ejector as just men[* 274] tioned, and not against the very tenant in possession, the court would not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it was a standing rule, that no plaintiff should proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in possession (if any there were), and making him a defendant if he pleased. And, in order to maintain the action, it was requisite for the plaintiff, in case of any defence being set up, to make out four points before the court; viz., title, lease, entry, and ouster. First, he must have shown a good title in his lessor, which brought the matter of right entirely before the court; then, that the lessor, being seised 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. On proof whereof the plaintiff had

setting forth that the plaintiff is entitled to the possession of the premises, describing them with substantial accuracy, and that he claims the same in fee simple (or otherwise, as the case may be), and that the defendant unlawfully withholds the same. See Munson v. Munson, 30 Conn. 425; Riley v. Smith, 9 Allen (Mass.), 370; Flagg v. Bean, 5 Fost. (N. H.) 49; Payne v. Treadwell, 5 Cal. 310; Watson v. Zimmerman, 6 id. 46; Walter v. Lockwood, 23 Barb. 228; Guy v. Barnes, 24 Ind. 345. See, also, 5 Wait's Pr. 8.

As it regards evidence in an action of ejectment the burden of proof is on the plaintiff to prove a paramount title. Boylan v. Meeker, 4 Dutch. (N. J.) 274; Holbrook v. Nichol, 36 Ill. 161. As to damages, by a very general statutory practice, they may now be recovered in connection with the property itself, which is the principal object of the suit. See Moss v. Shear, 25 Cal. 44; Garner v. Jones, 34 Miss. 505; Brooks v. Wortman, 22 La. Ann. 491; Walker v. Mitchell, 18 B. Monr. 541; Holmes v. Davis, 19 N. Y. (5 Smith) 488; Sullivan v. Davis, 4 Cal. 291. The judgment in ejectment must follow the complaint, and the execution the judgment. Orton v. Noonan, 18 Wis. 447. See Taylor v. Abbott, 41 Penn. St. 352; Bolard v. Mason, 66 id. 138; Minkhart v. Hankler, 19 Ill. 47.

judgment to recover his term and damages; and might, in consequence, have had a writ of possession, which the sheriff executed by delivering to him the undisturbed and peaceable possession of his term.

[*275]

Such was the regular mode of bringing an action of ejectment; but, as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a more easy method of trying a title by ejectment, where there was an actual tenant or occupier of the premises in dispute, was invented by the Lord Chief Justice Rolle (t), who sat in the court of upper bench (u) during the exile of King Charles II. This new method entirely depended upon a string of legal fictions; no actual lease was made, there was no actual entry by the plaintiff, nor actual ouster by the defendant; but these were merely ideal, for the sole purpose of trying the title. To this end, in the proceedings a lease for a term of years was stated to have been made, by him who claimed title, to the plaintiff who brought the action, as by John Rogers to Richard Smith, it was also stated that Smith the lessee entered; and that the defendant William Stiles, who was called the casual ejector, ousted him; for which ouster he brought the action. As soon as this action had been brought, and the complaint had been fully stated in the declaration, Stiles, the casual ejector, or defendant, sent 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, had no title at all to the premises, and should make no defence; and therefore advising the tenant to appear in court and defend his own title: otherwise he, the casual ejector, would suffer judgment to be had against him, and thereby the actual tenant Saunders would be turned out of possession. On receipt of this friendly caution, if the tenant in possession did not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he was supposed to have no right at all; and, upon judgment being had against Stiles the casual ejector, Saunders the real tenant would have been turned out of possession by the sheriff.

But, if the tenant in possession applied to be made a defendant, it was allowed him upon this condition; that he should enter into a rule of court 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 instead of Stiles: which requisites being wholly fictitious, had the defendant put the plaintiff to prove them, he must of course have been nonsuited for want of evidence; but by such stipulated confession of lease, entry, and ouster, the trial proceeded upon the merits of the title only. This done, the declaration was altered by inserting the name of George Saunders *instead [* 276] of William Stiles, and the cause went 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 was bound to make out a clear title, otherwise his fictitious lessee could not have obtained judgment to have possession of the land for the term supposed to have been granted. But, if the lessor made out his title in a satisfactory manner, then judgment and a writ of possession went for Richard Smith the nominal plain(t) Styl. Prac. Reg. 108 (edit. 1657). (u) Ante, p. 113 (i).

tiff, who by this trial had proved the right of John Rogers, his supposed lessor. Yet, to prevent the fraudulent recovery of the possession of land, by collusion with the tenant thereof, a tenant was obliged, by a provision (x) now repealed (y) of the stat. 11 Geo. 2, c. 19, on pain of forfeiting three years' rent, to give notice to his landlord, when served with any declaration in ejectment; and the landlord might, by leave of the court, have been made a co-defendant to the action, in case the tenant himself appeared to it (z); or, if he made default, though judgment must then have been signed against the casual ejector, yet execution would have been stayed in case the landlord applied to be made a defendant, and entered into the common rule; a right which indeed the landlord had long before the provision of this statute (a). But, if the new defendants, whether landlord or tenant, or both, after entering into the common rule, failed to appear at the trial, and to confess lease, entry, and ouster, the plaintiff, Smith, must indeed have been there nonsuited, for want of proving those requisites (b); but judgment would nevertheless in the end have been entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant had been broken, and *therefore the plaintiff was put again in the same situation as if he [*277] never had appeared at all; in consequence of which (as we have seen) 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.

In order to complete the remedy by ejectment, an action of trespass lay, after a recovery therein, for the mesne profits which the tenant in possession had wrongfully received.

The procedure in ejectment has, by the Common Law Procedure Act, 1852, been much simplified and improved. Under the provisions of this statute (c) the action now commences by a writ-directed to the persons in possession of the premises sought to be recovered by name, and generally to "all persons intitled to defend the possession" of the property claimed — which is required to be described with reasonable certainty in the writ.

The writ of ejectment (d) commands the parties to whom it is directed, or such of them as deny the alleged title of the claimant, within a certain period, viz., sixteen days, after service of the writ to appear in court, to defend either for the whole or for part of the premises in question; the writ further notifies to the defendant (if there be only oue), that in default of putting in an appearance judgment may be signed, and he may be turned out of possession. This writ must be indorsed with the address of the attorney issuing it, or (if it were issued by the plaintiff in person) of the plaintiff. It remains in force for three calendar months, and must be served upon the person in possession [*278] of the premises (e). Should such person, however, hold as * tenant merely, he must, under a penalty of forfeiting the value of three

years' improved or rack rent of such premises, forthwith give notice that has been so served to his landlord. When notice has been thus given, the landlord will, by leave of the court or a judge, be allowed to appear and defend on filing an affidavit showing that he is in possession of the land in question either by himself or his tenant (f), and on entering an appearance the landlord will have to state expressly that he appears as landlord, in which case he will be at liberty to set up any available and suitable defence to the action.

If, when an appearance has been entered in an action of ejectment, the claimant suffers the time ordinarily allowed for going to trial after issue joined (g) to elapse, the defendant in ejectment may give twenty days' notice to the claimant to proceed to trial at the sittings or assizes next after the expiration of the notice, and if the claimant neglects to proceed to trial in pursuance of such notice, and the time for going to trial be not extended by the court or a judge, the defendant may sign judgment and recover the costs of his defence (h).

Assuming that the tenant in possession appears to the action within the time appointed (i), the issue may at once be made up without any pleadings (k); particulars of the claim and defence, if any, being annexed to the record by the claimant (7). The trial upon the issue raised between

*the parties will then take place in the same manner as in other [*279] actions (m); and the question to be tried and decided between the

claimant of the land and the defendant will be "whether the statement in the writ of the title of the claimant is true or false, and, if true," and there be several claimants, "then which of the claimants is entitled, and whether to the whole or part, and if to part, then to which part of the property in question" (n). Moreover, it is competent to any one in possession of land actually or constructively to come in and defend his possession, and to contest title to be put forward at the trial by the plaintiff, either altogether, or as a part only of the premises mentioned in the writ (o), and the issue will be restricted accordingly.

rega

If at the trial the defendant appears, and the claimant does not appear, the claimant will be nonsuited—if the claimant appears, and the defendant does not appear, the claimant will be entitled to recover without any proof of his title (p). Further, if the title of the claimant shall appear to have existed as alleged in the writ, and at the time of service thereof, but it shall also appear to have expired before the time of trial, the claimant will notwithstanding be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the writ, and to a judgment for his costs of suit (q). If the jury find for the claimant, judgment may then be signed (r),

and execution may issue for recovery of possession of the property, or such part thereof as the jury shall find the claimant entitled to, and for costs of the suit (s).

[* 280] As regards the mode of recovering the mesne profits *under the improved procedure:-In a case not arising between landlord and tenant after judgment has been obtained in the action of ejectment, a separate action of trespass for mesne profits must be brought. Where, however, the ejectment is by a landlord against his tenant after a forfeiture or otherwise, the claimant may at the trial (after proof that the defendant was served with notice of trial, and after proof likewise by the plaintiff of his right to recover possession of the whole or part of the demised premises) go into evidence of the mesne profits received down to the time of the verdict, and may recover damages in respect thereof (t).

Ejectment is a possessory action founded upon a right of entry in the party claiming title, and will in general lie for any real property on which an entry may be made and of which possession may be delivered by the sheriff. In this action the plaintiff must recover on the strength of his own title-not on the weakness of that of the defendant; mere possession, therefore, will give the defendant a prima facie right to the land in question (u). "In truth and substance," as long since judicially observed (x)," a judgment in ejectment is a recovery of the possession (not of the seisin or freehold) without prejudice to the right, as it may hereafter appear even between the parties." With a view, however, to repressing vexatious litigation which might ensue if the above doctrine were unreservedly applied, it is now provided that the claimant in a second ejectment, brought for the same premises against the same defendant, may by the court or a judge be ordered to give security for costs, with a stay of proceedings until such security shall have been given (y).

[*281] Ejectment, as will appear in the concluding chapter of this Volume, may, subject to restrictions as regards the value of the property sought to be recovered, be brought in the county court; and possession of premises may under certain circumstances be summarily obtained either there or by magisterial intervention, as will be hereafter mentioned.

The next species of injury to be noticed affecting a man's lands, tenements, or hereditaments is trespass. Trespass, in its largest and most extensive sense,

Trespass.

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 (z); taking a man's goods is a trespass (a); for which an action of trespass is given by the law: and, in general, any forcible act of one man whereby another is directly injured, is a transgression or trespass in its largest sense, for which an act of trespass will lie.

But in the limited and confined sense, in which we are at present to consider it, trespass signifies no more than an entry on another man's ground without a lawful authority, or doing some direct damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in land, being

(8) If, however, the verdict be for the defendant, judgment may be signed and execution may issue for costs against the claimant, s. 186.

(t) S. 214.

(u) Selw. Ni. Pri. 12th ed. ii. 696, 704

(x) Per Lord Mansfield, Taylor d. Atkyns v. Horde, 1 Burr. 114, C. L. Proc. Act, 1852, 8. 207.

(y) C. L. Proc. Act, 1854, s. 93.

(z) Ante, p. 128.

(a) Ante, p. 255.