« PreviousContinue »
reason of, those parts of the law which are now more generally in use. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connection of those disjointed parts, which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so absolutely antiquated as to be out of force; though the whole is £ 107 ] certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, aJfise}formedon, writ of right, or otherwise. The forms are indeed preserved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason. But the title of lands is now usually tried in actions of ejectment or trespass i of which in the following chapters.
Of DISPOSSESSION, Or OUSTER, Of CHATTELS REAL.
HAVING in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to consider injuries by ouster of chattels real; that is, by amoving the possession of the tenant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit; or from an estate for years.
I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseisin, or 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 assisc of novel disseisin *. But this depends upon the several statutes, which
» F. N. B. 17S.
create create these respective interests*, and which expressly provide and allow this remedy in cafe of dispossession. Upon which account it is that sir Edward Coke observes c, that these tenants are said to hold their estates ut liberum tenementumt until their debts be paid: because by the statutes they (hall 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 remedies, according to the circumstances and situation of the wrongdoer: the writ of ejecliene Jirmae; 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 cjec'it infra terminum; which 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.
I. A Writ then of ejeElione firmae, or action of trespass in ejeBment, Heth where lands or tenements are left for a term of years : and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term11. In this cafe he shall have his writ of cjefl'wn to call the defendant to answer for entering en 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 reeover back his term, or the remainder of it, with damages.
SiKCE the disuse of real actions, this mixed proceeding is r 200 -j become the common method of trying the title to lands or
!• Stat. Wcftm. 1. 13 F.dw. I. c. 18. -I See book II. ch. 10.
ixz:. de tmrcatarihut, 27 Ed*'. 111. «. 9. * F. N. B. 11c.
Stat. 13 Hen. Vlll. c. 6. § 9, 'See appendix. N« II. § 1.
c 1 Inst. 4.J.
-. • tenements.
tenements. It may not therefore be improper to delineate* with some degree of minuteness, it's history, the manner of it's process, and the principles whereon it is grounded.
We have before seens, that the writ of covenant, for breach of the contract contained in the lease for years, was antiently 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 ') 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 bya real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejeB'tonefirmae, 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, and are silent as to any restitution,) viz a judgment to recover the term, and a writ of possession thereupon'. This method seems to have been set
g See pag. 157. He\knip,laecmenlcyefl, lou borne est oustc
ti F. N. B. 145. dt son ttrmt par tfir anger, il avera ejcBi
i Sec book II. ch. 9. one firmae versus cesty que fay tuste; etjil
k P. 6 Ric. II. EjcfJione frmae ntst foil ovslt parson lessor, briesede covenant;
qu> ur action de trcjpesi trtfon nature, et it f par lessee ou grantee de reversion
le plaintiff ne rcirvtra (on ttrme que est a briefe de covenant versus Jon leffor, et
venir, nient plus que en trespass home re- countera especial count, &c. (Fitz. abf.
eovera damages pur trespass nient fait,mn t. ejetl. firm. ».) See Bract. /. 4. tr. I.
mfefer\ nes il convient asuer par action c. 36.
de covenant al comen hiv a recoverer fan I See as pen j. N* JI. § 4. prepe fin*
termei quod tota curia cor.cessit. Kt per
.: ... tied
tied as early as the reign of Edward IV m: though it hath been said n to havq first, begun under Henry VII, because it probably was then first applied to it's 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 it's 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 °. 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 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 agreement beforehand) 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
"i 7 Edio. IV. 6. Pw Fairfax;^ sou anre, doxquti tout h damages, (Bro.
home pert rjeflicne ftrmae, le plaintiff re- Abr. t. quart ejecit infra terminum, 6.)
ctrvcrajsn terme qui tji arere, ftbien come * F. N. B. 220.
in quwt ejecit infra terminum; et,Ji ml • 1 Cb. Rep. appind. 39.