tenements. It may not therefore be improper to delineate, with fome degree of minutenefs, it's history, the manner of it's procefs, and the principles whereon it is grounded.

WE have before feen, that the writ of covenant, for breach of the contract contained in the leafe for years, was antiently the only specific remedy for recovering against the leffor a term from which he had ejected his leffee, together with damages for the oufter. But if the leffee was ejected by a stran ger, claiming under a title fuperior to that of the leffor, or by a grantee of the reversion, (who might at any time by a common recovery have destroyed the term i) though the leffee might ftill maintain an action of covenant against the leffor, for non-performance of his contract or leafe, yet he could not by any means recover the term itself. If the oufter was committed by a mère 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 against the ejector but in damages, by a writ of ejectione firmae, for the trefpafs committed in ejecting him from his farm. But afterwards, when the courts of equity began to oblige the ejector to make a specific reftitution of the land to the party immedi ately injured, the courts of law alfo adopted the fame method of doing complete justice; and, in the prosecution of a writ of ejectment, introduced a fpecies of remedy not warranted by the original writ nor prayed by the declaration, (which are calculated for damages merely, and are filent as to any reftitution,) viz a judgment to recover the term, and a writ of poffeffion thereupon. This method seems to have been fet

Belknap, la comen ley eft, lou bome eft oufte de fon terme par eftranger, il avera ejektione firmae verfus cefty que luy oufte; et fil foit oufte parfon leffor, briefe de covenant ; et fi par leffee cu grantee de reverfion briefe de covenant verfus fon leffor, et countera efpecial count, &c. (Fitz. abr. t. eject. firm. 2.) See Bract. 1.4. tr. 1. c. 36.

1 See append. No II. § 4. prope fin.

tled

n

tled as early as the reign of Edward IV: though it hath been faid to have first begun under Henry VII, because it probably was then first applied to it's prefent 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 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 constitute a leffee 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 first, whether this occafional possession, taken merely for the purpose of conveying the title, excufed the leffor from the legal guilt of maintenance. When therefore a perfon, who hath right of entry into lands, determines to acquire that poffeffion, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being fo in the poffeffion of the foil, he there, upon the land, feals and delivers a leafe for years to fome third perfon or leffee: and, having thus given him entry, leaves him in poffeffion of the premifes. This leffee is to stay upon the land, till the prior tenant, or he who had the previous poffeffion, enters thereon afresh 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. For this injury the leffee is entitled to his action of ejectment against 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 against such a casual ejector as is before mentioned, and not against the foit arere, donques tout in damages. (Bro. Abr. t. quare ejecit infra terminum, 6.) a F. N. B. 220. •1 Ch. Rep. append. 39.

7 Edw. IV. 6. Per Fairfax; fi bome port ejectione firmae, le plaintiff recovera fon terme qui eft arere, fibien come in quare ejecit infra terminum; et, fi nul

[203]

very tenant in poffeffion, the court will not fuffer the tenant to lose his poffefsion without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff fhall proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in poffeffion, (if any there be,) and making him a defendant if he pleafes. And, in order to maintain the action, the plaintiff muft, in case of any defence, make out four points before the court; viz. title, leafe, entry, and oufler. First, 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 or poffeffed by virtue of fuch title, did make him the leafe for the present term; thirdly, that he, the leffee, or plaintiff, did enter or take poffeffion in confequence of fuch leafe; and then, laftly, that the defendant oufled 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 undisturbed and peaceable poffeffion of his term.

THIS is the regular method of bringing an action or ejectment, in which the title of the leffor comes collaterally and incidentally before the court, in order to fhew the injury done to the leffce by this oufter. This method must be ftill continued in due form and strictness, fave only as to the notice to the tenant, whenever the poffeffion is vacant, or there is no actual occupant of the premises; and alfo in some 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 cafy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in difpute, was invented fomewhat more than a century ago, by the lord chief juftice Rolle P, who then fat in the court of upper bench; fo called during the exile of king Charles the fecond. 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 P Styl. pract. Reg. 10S. (edit. 1657.) 7

merely

merely ideal, for the fole purpose of trying the title (1) To this end, in the proceedings a leafe for a term of years is ftated 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 fome real person, and not merely an ideal fictitious one who hath no exiftence, as is frequently though unwarrantably practifed: it is alfo ftated that Smith the leffee 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 stated in the declaration', Stiles, the casual 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 all to the premises, and shall make no defence; and therefore advifing the tenant to appear in court and defend his own title: otherwife he, the casual ejector, will fuffer judgment to be had against him; and thereby the actual tenant Saunders will inevitably be turned out of poffeffion. 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 against Stiles the casual

9 See appendix, No II. § 1, 2. r 6 Mod. 309.

• Append. N° II. § 2.

f Ibid.

(1) An actual entry is necessary to avoid a fine levied with proclamations, and the demise laid in the ejectment must be fubfequent to the entry; but that is the only cafe in which an actual entry is required. 2 Str. 1086. Doug. 468. 1 T. R. 741. Unless it is an ejectment brought to recover on a vacant poffeffion, and not by a landlord upon a right of re-entry under the 4 Geo. II. c. 28.; in which cafe the leffor or his attorney must actually feal a lease upon the premifes to the plaintiff, who must be ejected by a real perfon. See the mode of proceeding, 2 Cromp. Prac. 198.

VOL. III.

ejector,

ЕOOK III. ejector, Saunders the real tenant will be turned out of poffeffion by the fheriff.

BUT, if the tenant in poffeffion applies to be made a defendant, it is allowed him upon this condition; that he enter into a rule of court to confefs, at the trial of the cause, three of the four requifites for the maintenance of the plaintiff's action; viz. the leafe of Rogers the leffor, the entry of Smith [204] the plaintiff, and his outer by Saunders himself, now made the defendant inftead of Stiles: which requifites being wholly fictitious, fhould the defendant put the plaintiff to prove them, he muft of course be nonfuited for want of evidence; but by fuch ftipulated confeffion of leafe, entry, and oufter, the trial will now ftand upon the merits of the title only (2). This done, the declaration is altered by inferting the name of George Saunders inftead of William Stiles, and the cause goes down to trial under the name of Smith, (the plaintiff,) on the demife of Rogers, (the leffor,) againft Saunders, the new 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 supposed to be granted. But, if the leffor makes out his title in a fatiffactory 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 fuppofed leffor. Yet, to prevent fraudulent recoveries of the poffeffion, by collufion

t Append. No II. § 3.

(2) It has been determined, that no ejectment can be maintained where the leffor of the plaintiff has not a legal right of entry; as the heir at law was barred from recovering in ejectment, where there was an unfatisfied term raised for the purpose of fecuring an annuity, though the heir claimed the estate fubject to that charge. But a fatisfied term will be prefumed to be furrendered; and the courts will not permit the plaintiff in ejectment to be non-fuited by a term ftanding out in the truftee of the leffor. 2 7. R. 695. 1 T. R. 758.