authorities on either side are so numerous and respectable, that it may be deemed impertinent to obtrude an opinion on the subject. Mr. Justice Blackstone conceived (a), that the method of recovering the term in ejectment, was settled as early as the reign of Edward the Fourth; and in support of this opinion has adduced an authority, precisely in point *. To this may be added, that the ejectment was NEVER laid with a continuando; consequently, the plaintiff could not recover damages for the mesne profits. Hence it may be inferred, that the term was recoverable in ejectment, even prior to the reign of Henry the Seventh; otherwise, the plaintiff not recovering damages, the action must have been nugatory (b): and as long terms have, for a considerable time, been attended with beneficial purposes, the most liberal construction should be interposed to support, and every possible assistance afforded to, the intention of the parties creating them.

The old cases, indeed, held, "that there could be no "remainder or substitution of a term after an estate "for life, by deed or will." It was considered as a mere possibility. It was void from the uncertainty of commencement. There was no particular estate. The gift of a term (like any other chattel) for an hour, was good for ever; these objections were subtle and artificial. But when long and beneficial terms-came in use, the convenience of families required, that they

* 7 E 4. 6. Per Fairfax: si home port ejectione firma, le plaintiff recovera son terme qui est arrere, si bien come in quare ejecit infra terminum; et, si nul soit arrere, donques tout in damages. (Bro. Abr. Quare ejecit infra terminum, 6.)

(a) 3 Black. Com. 201. but see Goodtitle v. Toombs, 3 Wils. 120.

(b) Co. Litt. 45 a. 1 Fonb. 145.

might be settled upon a child after the death of a parent. Such limitations were soon allowed to be created by will; and the old objections were removed by changing the name from "remainders" to "executory "devises." The same reason required that such limitations might be created by deed; as for instance, marriage settlements, to answer the agreement of parties, and the exigencies of families. Therefore to avoid the literal authority of old cases, an ingenious distinction was invented; namely, that a remainder might be limited for the residue of the years, but not for the residue of the term. Deeds, especially such as "ex"ecute mutual agreements for valuable consideration, "should be construed liberally, ut res magis valeat, "according to the intent;" which ought always to prevail, unless it be contrary to law.

The passage from Sir Edward Coke, defines the word "term" to signify "not only the limits and "limitation of time, but also the estate and interest "which passes for that time."

Limitation of terms are now of general use. Their bounds are settled. The rules concerning them are certain and established. When they came to be allowed by will, or declaration of trust, the substantial reason was the same for allowing them by deed; and a strained construction should not be made to overturn the lawful intent of the parties; hence a term may be devised for life, by construction of the intent of the

testator.

The remedy by ejectment being thus introduced, the first improvement made in it was that of setting up a

casual

casual ejector; an improvement which Mr. Justice Keeling conceived commenced about the time of the Troubles, though in truth it was a much older prac tice. Hence it became usual for those who had a right of entry into lands, to seal leases thereon; after which the person who next entered on the freehold was deemed an ejector (a).

The convenience which arose from this method was, that the title could be tried toties quoties; whereas if the plaintiff was barred in an assize, he was put to his writ of right. The remedy being grossly abused, applications were frequently made to the Court of Chancery (after three or four ejectments) to establish the prevailing title, by a bill of peace; yet that court denied its interposition, because every termor may have an ejectment, and every new ejectment supposes a new demise; and the costs were supposed to be an adequate recompence for the trouble and expence to which the possessor had been put (b). But where the suit begins in Chancery for relief, touching pretended incumbrances on the title of lands, and that court has ordered the defendant to pursue an eject> ment at law, there, after one or two ejectments tried, and the right settled, to the satisfaction of the court, it will order a perpetual injunction against the defendant; because the suit was first attached in that court, and never began at law; and when such precedent incumbrances appear to be fraudulent and inequitable against the possessor, it is within the power of the court to relieve against them.

(a) Keyes v. Bredon, 1 Keb. 705. Fairclaim, ex dem. Fowler & al. v. Shamtitle, 3 Burr. 1297. 1 Black. 360.

с

(b) Ferrer's case, 6 Rep. 7. Earl of Bath v. Sherwin, 10 Mod.

1.

The

The method of proceeding however against a casual ejector, became the mean of turning any one out of possession; because such a plaintiff could recover his term without any notice to the tenant in possession ; for in its form an ejectment has, not inaptly, been considered as a trick between two to dispossess a third, by a sham suit and a sham judgment. An artifice, as before observed, of such a description would be highly criminal, unless the court converted it into a fair trial with the proper party. The controul therefore which the court had over the judgment against the casual ejector, enabled them to impose any terms upon the plaintiff which were just. They could not permit men to be deprived of their possessions without having an opportunity of defending them. To effect which purpose they interposed their authority, by establishing a rule, that no plaintiff should proceed in ejectment against such a casual and titular ejector, without delivering a declaration to the tenant in possession, and making him an ejector and proper defendant, if hẹ pleased (a). As the power of the court to interpose such a resolution cannot be doubted, the justice which dictated it cannot be denied; indeed without it the court might have been made instrumental in doing an injury to a third person. A declaration might have been delivered to a stranger, a feint defence made; verdict, judgment, and execution obtained, without the tenant having any notice of either. And though actions of ejectment were originally brought against the real ejectors, who were actually in possession, yet because any person who came upon the land, animo

(a) Allen v. Robinson, Styl. 368. Sid. 24. Lil. Abr. 497. Fairclaim, ex dem. Fowler & al.

v. Shamtitle, Burr. 1294.1 Black.

360.

possidendi,

possidendi, was equally an ejector with him who was the real occupant, the action, in strictness of law, might have been brought against him; but because this, as has been said, turned to the injury of the occupier, the rule was made, that he should have notice of it: the courts, therefore, would not give judgment in ejectment, unless an affidavit was made that the tenant in possession had been previously served with a copy of the declaration.

The ancient practice was, that leases, to try the title, should actually be sealed and delivered; otherwise the plaintiff could maintain no title to the term. The leases were also to be sealed on the land, it being maintenance in any one who was out of possession to convey to another. Therefore, though in relation to the quickness of the remedy, the assize had the advantage, because in that action none of this preparation was required (for the writ of assize came down to the assizes, the jury was there warned, the cause tried, and judgment given); yet the method of proceeding in ejectment, from the convenience of repeated trial, notwithstanding the previous formalities, was generally preferred.

Thus the law stood till the time of Chief Justice Rolle, who invented the rule now in use; which is, that if the defendant appears in the room of the casual ejector, he shall enter into a rule to confess lease, entry, and ouster, and insist upon the title only. For when the tenant in possession requested to be admitted defendant, the court was enabled to subjoin equitable conditions to its consent; and therefore obliged him to admit the fiction, and try the cause upon its merits.

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