Of Proceeding against Hundredors.

fatisfaction of the faid juftices, before any taxation shall be made for reimburfing such high constable, and shall, in fuch expences, have no further allowance, toward paying an attorney to defend the faid action, than what fuch attorney's bill fhall be taxed at by the proper officer of that court where the action fhall be brought, which the said high conftable fhall caufe to be taxed for that purpose. Stat. 8 Geo. 2. c. 16. S. 4.

The 7th feet. of the above act provides in what manner the conftable fhall be reimbursed his expences in case the plaintiff is nonfuited, &c. and becomes, or his fureties in the bond become, infolvent.

DE

T

Of Ejeament.

Of the Action of Ejectment.

HE action of eje&ment is a mixed action, in which a leffee for years hall recover his term, and alfo his damages. 5 Co. 105. 9 Co. 77. and is almoft the only remedy in practice for recovering land wrongfully withheld. Bur. 4 pt. 667. For it is real in refpect of the lands, and perfonal in refpect of the damages and Cofts. Per Holt, ch. j. Comb. 250.

Real actions required fo much nicety and exactness, and were attended, in old times, with fo much trouble and expence, that the remedy by ejectment was contrived to fupply feveral defects which attended the bringing them; for in real actions the demandant could not recover any damages, only his poffeffion; and if he was barred in one action, he could not regularly bring another. 6 Co. 7. Ferrar's cafe.

*

The concluding a man by one action being often found fo prejudicial to his right, that the manner of forming a term for years, and the leffee's bringing an ejectment to recover his term, and thereby to affert the title of his leffor, was found out, and was firft introduced in the Hen. 14 7. [before which time the plaintiff in ejectment only recovered damages for the turning him out of poffeffion, and did not recover his term in the premiffes] for, till about that time, leases for years were but of very fhort duration, and were generally defeated or determined before any intricate title could be decided; and were such precarious poffeffions, with refpect to the power that the owner of the freehold or inheritance had over them, that every fuch leffee was looked upon only as his bailiff or fteward; and therefore, if oufted by a ftranger, could only have recovered damages for the lofs of this poffeffion; or if turned out by his leffor, could only feek remedy from his covenants.

But as, about this time of Henry 7. leafes for long terms began to creep into ufe, the leffees whereof, when molested, used to go, in order to fecure themfelves, into equity, against their leffors, for a specifick performance; and against ftrangers, to have perpetual injunctions to quiet their poffeffions, which, as it drew confiderable bufinefs into the

F. N. B. 506.

courts

Of the Action of Ejectment.

courts of equity, was probably one reafon which induced the courts of law to come to a refolution to give judgment, that the leffee in ejectment should recover poffeffion of the land itself, by the process of an habere facias poffeffionem; fo that the object of the action became entirely changed; for, as the plaintiff recovered the term itself, he had nominal damages only for the ouster, but not the mefne profits; whereas, by the old writ of ejectment, he recovered nothing but damages for the oufter, the measure whereof were the mefne profits of the eftate accruing to the ejector fince the time of the oufter.

The above refolution of the courts brought on a new method of trial unknown to the common law.

For now it became ufual for a man that had a right of entry into any lands to enter thereon and feal leafes; and then the perfon that next came on the freehold, animo poffidendi, was accounted an ejector of the leffee; by which means any man might be turned out of poffeffion; because the leffee in ejectment would recover his term without any notice to the tenant in poffeffion; fo that the courts of law, to remedy this inconvenience and injuftice, made it a standing rule, that no plaintiff fhould proceed in ejectment to recover his lands against such a feigned ejector, without delivering the tenant in poffeffion a declaration, and making him an ejector and proper defendant if he pleased.

This rule of court became abfolutely neceffary upon the alteration of the object of the action of ejectment, which was now in rem; for otherwife the court would have been inftrumental in doing an injury to a third perfon; because a declaration might otherwife be delivered to a ftranger, a feint defence be made, and a verdict, judgment, and execution thereon obtained, whereby the tenant would have been oufted, without notice of any proceedings against him.

Upon this notice to the tenant in poffeffion, and affidavit thereof made, it was usual for the tenant in poffeffion to move the court, that, as the title of the land belonged to him, he might defend the fuit in the casual ejector's name; which the court, upon an affidavit of that matter, used to grant; and that the fuit fhould be carried on in the casual ejector's name, the tenant in poffeffion faving him harmless; and then the casual ejector was not permitted to release errors in prejudice of the tenant in poffeffion; fince the fuit was carried on in his name by rule of court; and the procefs for costs was taken out against the cafual ejector, who

was

Of the Action of Ejectment.

was obliged to refort to the tenant in poffeffion to recover back the fame, and put his bond of indemnification in fuit upon his refufal to pay them. Styl. 468. 1 Keb. 705,

740.

Alfo fuch leafes were actually to be fealed and delivered, otherwise the plaintiff could maintain no title to the term, and were alfo obliged to be fealed on the land itself, otherwife it amounted to maintenance by the old law, to convey a title to any one, when the grantor himself was not in poffeffion.

But at this day there is regularly no neceffity of fealing and delivering leafes on the lands, where there is an actual tenant or occupier of the lands, a much more expeditious and eafy method of proceeding in eje&ment having been invented by lord chief juftice Rolle, [who fat in the upper bench fo called during the exile of king Charles the fecond] and followed ever fince by the courts.

I have faid thus much of the action of ejectment, and the old method of proceeding therein, that the practifer and ftudent may the better understand the modern practice relating thereto, and the reafons on which it is founded

The new method of proceeding in ejectment entirely depends on a ftring of legal fictions; no actual leafe is made, no actual entry by the plaintiff, no actual ouster by the defendant, but all are merely ideal, for the fole purpose of trying the title. To this end, in the proceedings, a leafe for a term of years is flated to have been made by him who claims title to the plaintiff, who is generally an ideal fictitious person who has no exiftence, though it ought to be a real perfon. In this proceeding, which is the declaration, for there is no other procefs in this action, it is also stated, that the lefee, in confequence of the demife to him made, entered into the premiffes; and that the defendant, who is alfo now another ideal fictitious perfon, and who is called the cafual ejector, afterwards entered thereon and oufted the plaintiff, for which oufter the plaintiff brings this action. Under this declaration is written a notice, fuppofed to be written by this cafual ejector, directed to the tenant in poffeffion of the premiffes, in which notice the cafual ejector informs the tenant of the action brought by the leffee, and affures him, that as he, the cafual ejector, has no title at all to the premiffes, he fhall make no defence; and therefore he advifes the tenant to appear in court at a certain time, and VOL. II.

L

defend

Of the Action of Ejectment.

defend his own title, otherwife he, the cafual ejector, wiH fuffer judgment to be had against him, by which the actual tenant will inevitably be turned out of poffeffion.

'The declaration is then ferved on the tenant in poffeffion, with this friendly caution annexed to it, who has then an opportunity of defending his title, which if he omits to do in a limited time, he is fuppofed to have no right at all; and, upon judgment being had against the cafual ejector, the real tenant will be turned out of poffeffion by the sheriff.

But if the tenant 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 lease of the leffor, the entry of the plaintiff, and the cufter by the tenant himself, who is now made defendant instead of the cafual ejector; which requifites, as they are wholly fictitious, fhould the defendant put the plaintiff to prove, he muft of course be non-fuited at the trial for want of evidence ; but by fuch ftipulated confeffion of leafe, entry and cufter, the trial will stand upon the merits of the title only.

Upon this rule being entered into, the declaration is now altered by inferting the name of the tenant inftead of the fictitious name of the cafual ejector; and the caufe goes to trial under the name of the fictitious leffee on the demise of A. B. (the leffor or perfon claiming title) against C. D. (the now defendant) and therein the leffor is bound to make out his title to the premiffes, otherwife his nominal leffee cannot obtain judgment to have poffeffion of the land for the term fuppofed to be granted. But if he makes out his title in a fatisfactory manner, the judgment is given for the nominal plaintiff, and a writ of poffeffion goes in his name to the fheriff to deliver poffeffion. But if the now defendant fails to appear at the trial, and to confefs leafe, entry and oufler, the nominal plaintiff must indeed be there nonfuited for want of proving thefe requifites; but judgment will nevertheless, in the end, be entered for him againft the cafual ejector; for the condition on which the tenant was admitted defendant is broken; and therefore the plaintiff is put again in the fame fituation as if he never had appeared at all; the confequence of which we have feen would have been entered for the plaintiff; and the tenant would have been turned out of poffeffion; the fame process therefore as would have been had, provided no conditional rule had been made,

muft