is punished by fine to the king. For by 8 Hen. 6, c. 9, upon complaint made to any justice of the peace of a forcible entry, manu forti, on lands or tenements; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by a jury, and upon force found shall restore the possession to the party so put out; and in such case, or if any alienation be made to defraud the possessor of his right, (which is likewise declared to be absolutely void), the offender shall forfeit for the force found, treble damages to the party grieved, and make fine and ransom to the king, But this does not extend to such as endeavour to keep possession manu forti, after three years' peaceable enjoyment of either themselves, their ancestors, or those under whom they claim.

an estate for

years.

Writ of ejec

tione firma, or action of trespass in eject

CHAPTER XI.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL, AND HEREIN

OF THE REMEDY BY EJECTMENT.

Of ouster from THE writ of ejectione firmæ, or action of trespass in ejectment for the recovery of the possession of lands or tenements, is a mixed action, somewhat between real and personal; for therein are two things recovered, as well restitution for the term of years, as damage for the ouster or wrong, which was originally a remedy given to the lessee for years. Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements (a).

ment.

F. N. B. 220.

Common me

title to lands.

In order to convert it into a method of trying titles to the thod of trying freehold, it is first necessary that the claimant do take possession of the lands to empower him to constitute a lessee for years, who may be capable of receiving this injury of dispos

(a) Whenever a person entitled to land has a right of entry, he may, if the premises be unoccupied and vacant,in a peaceable manner, and without using such violence, as would amount to a forcible entry, enter and take possession without any legal formality. In general, however, and especially if the right of entry be fairly contested, it is best to proceed by an action for its recovery.-Archbold's Practice, Q. B., by Chitty, 7th ed. 731. An action for not delivering possession may, in some cases, be maintained; but damages only (and not the land itself) can be recovered in that form of action.-Id.

session. When therefore a person who has 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 do) a formal entry on the premises; and being so in the possession of the soil, he then, 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 ousts him; or till some other person (either by accident or 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 his casual ejector, whichever it was that ousted him, to recover back the land and damages. But where this action is brought against such a casual ejector, it is a standing rule that notice be given to the tenant in possession (if any there be), and that he be made a defendant, if he pleases. And in order to maintain the action the plaintiff must, in case of any defence, make out four points before the court, viz. title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings 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. Whereupon he shall have judgment to recover his term Judgment. and damages; and shall in consequence have a writ of pos- session. session, which the sheriff is to execute, by delivering him the undisturbed and peaceable possession of his term. This is the regular method of bringing an action of eject- A more easy ment, in which the title of the lessor comes collaterally and vented by Lord incidentally before the court, in order to show the injury done to the lessee by this ouster. This method must be still continued, except as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupation of the premises; and also in some other cases. But as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invested by the Lord Styl. Prac. Chief Justice Rolle, entirely depending on a string of legal edit. 1657. fictions; no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely

Writ of pos

method, in

Chief Justice

Rolle.

Reg. 108.

6 Mod. 309.

ideal, for the sole purpose of trying the title. To this end, in the proceedings, a lease for a term of years is stated to have been made by him who claims title to the plaintiff, who brings the action; it is also stated that the lessee entered, and that the defendant, who is called the casual ejector, ousted him; for which ouster he brings this action. As soon as the action is brought, and the complaint stated in the declaration, the casual ejector sends a written notice to the tenant in possession, informing him of the action brought, and transmitting him a copy of the declaration, and assuring the tenant that he, the casual ejector, has no title to the property, and shall make no defence, and therefore advising the tenant to appear court and defend his own title; otherwise he, the casual ejector, will suffer judgment to be had against him, and thereby the tenant will be turned out of possession.

On receipt of this notice, if the tenant does not, within a limited time, apply to the court to be admitted a defendant, instead of the casual ejector, he is supposed to have no right, and upon judgment against the casual ejector, the tenant will be turned out of possession by the sheriff (b). But if the tenant in possession applies to be made a defendant, it is allowed him upon this condition; that he 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 the lessor, the entry of the plaintiff, and his ouster by the tenant himself, now made the defendant, instead of the casual ejector, when the trial will stand upon the merits of the title only (c). This

(b) The motion for this judgment should be made some time in the term in which the tenant was required by the notice to appear; in town causes it is usually made at the beginning of the term; in country causes, usually at the latter end of it. In a town cause, it is, in the queen's bench and exchequer, requisite that this notice should be made in the term, and if not applied for till a subsequent term, it will be refused, and a fresh ejectment would have to be served. In country causes, in all the courts, and in town causes, in the common pleas, it may be made in the subsequent term; and in the queen's bench the rule is absolute in the first instance; but in the common pleas and exchequer, a rule nisi only will be granted, if the motion be not made till the subsequent term. The motion cannot, either in town or country causes, be made after the expiriation of two terms after the service of the declaration; Archbold's Q. B. Prac. by Chitty, 7th ed. 745.

(c) By 1 Geo. 4, c. 87, s. 1, where the term or interest of any tenant holding under a lease or agreement in writing for any term, or from year to year, shall have expired, or been determined either by the landlord or tenant, by notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing, made and signed by the landlord or his

done, the declaration is altered by writing the name of the tenant instead of the casual ejector, and the cause goes down to trial under the name of Doe, (the nominal plaintiff), on the

agent, and served personally upon, or left at the dwelling-house or usual place of abode of such tenant or person, and the landlord shall thereupon proceed by action of ejectment for the recovery of posssession, he may, at the foot of the declaration, address a notice to such tenant or person, requiring him to appear on the first day of the term next following, to be made defendant, and to find bail, if ordered by the court; and upon appearance, or in case of non-appearance, on making the usual affidavit of service, the landlord producing the lease or agreement, or some counterpart or duplicate thereof, and proving the execution by affidavit, and upon affidavit that the premises have been actually enjoyed under such lease or agreement, and that the interest of the tenant has expired, or been determined by regular notice to quit, as the case may be, and that possession has been lawfully demanded, may move the court for a rule to show cause, within a time to be fixed by the court, on a consideration of the situation of the premises why such tenant or person, upon being admitted defendant, besides entering into the common consent rule, should not undertake, in case a verdict should pass for the plaintiff, to give him a judgment to be entered up against the real defendant of the term next preceding the trial; and also why he should not enter into a recognizance by himself, and two sufficient sureties in a reasonable sum, conditioned to pay the costs and damages recovered by the plaintiff in the action; and the court, on cause shown, or affidavit of service, may make the rule absolute in the whole or in part, and order such tenant or person, within a time fixed, to give such undertakings and find such bail with such conditions and in such manner as shall be specified in the rule, or such part of the same so made absolute; and if the party shall neglect or refuse so to do, and shall lay no ground to induce the court to enlarge the time for obeying the same, then, upon affidavit of the service of the order, an absolute rule may be made for entering up judgment for the plaintiff. By s. 2, when it shall appear at the trial of any ejectment at the suit of a landlord against a tenant, that such tenant, or his attorney has been served with due notice of trial, the plaintiff shall not be nonsuited for default of the defendant's appearance, or of confession of lease, entry, and ouster, but the production of the consent rule and undertaking of the defendant shall in all such cases be sufficient evidence of lease, entry, and ouster; and the judge shall, whether the defendant shall appear at such trial or not, permit the plaintiff on the trial, after proof of his right to recover possession, to go into evidence of the mesne profits accruing from the expiration of the tenant's interest to the time of the verdict, or some day preceding, and the finding for the plaintiff shall be upon the whole matter, both as to the recovery of the whole or any part of the premises, and as to the amount of the damages to be paid for mesne profits; but nothing is to prevent an action of trespass for the mesne profits. By s. 3, on the trial after undertaking given and security found, if a verdict shall pass for the plaintiff the judge may stay the execution till the fifth day of the next term, on the tenant's finding security not to commit waste or remove crops, &c. By s. 4, all recognizances and securities entered into pursuant to this act shall be taken in such manner and before such persons as are provided in respect of recognizances of bail, and if the landlord be nonsuited or verdict pass against him after bail found by the tenant, he is liable to double costs.

By 11 Geo. 4 and 1 Wm. 4, c. 70, s. 36, in all ejectments brought in any of the courts at Westminster by any landlord against his tenant, or against any person claiming through or under such tenant, where the tenancy shall expire, or the right of entry shall accrue in or after Hilary or Trinity terms respectively, the lessor of the plaintiff in such

сс

demise of A. (the lessor of the plaintiff, and the plaintiff in fact) against the new defendant; and therein the lessor of the plaintiff is bound to make out a clear title, otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted (d). But if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go for the nominal plaintiff,

action may, at any time within ten days after such tenancy shall expire, or right of entry accrue, serve a declaration in ejectment, intituled of the day next after the day of the demise in such declaration, whether the same shall be in term or in vacation, with a notice thereunder subscribed, requiring the tenant or tenants in possession to appear and plead thereto within ten days in the court in which such action may be brought; and proceedings shall be had on such declaration and rules to plead, entered and given in such and the same manner, as nearly as may be, as if such declaration had been duly served before the preceding term; provided that no judgment shall be signed against the casual ejector, until default of appearance and plea, within such ten days; and that at least six clear days' notice of trial shall be given to the defendant before the commission day of the assizes at which such ejectment is intended to be tried; provided that any defendant in such action may, at any time before the trial thereof, apply to a judge of either of the superior courts at Westminster, by summons in the usual manner, for time to plead, or for staying or setting aside the proceedings, or for postponing the trial until the next assizes. By s. 37, in making up the record of the proceedings on any such delaration in ejectment, the declaration must be intituled specially, as above mentioned.

"This statute only applies to issuable terms, as Hilary and Trinity; in other cases the proceedings must be as formerly; nor does it apply if the premises are in London or Middlesex, so as not to require a trial at the assizes, or where the landlord's right of entry accrued on the day after the essoign day in Trinity term, or where the tenancy expired, under an agreement on the day before the first day of the term;" Coote's L. & T. 584. By 1 & 2 Vict. c. 74, when a tenant or occupier of premises, where there is no rent, or where the rent does not exceed 207. a-year, refuses to give possession at the end of his term, or determination of his tenancy by a legal notice to quit, or otherwise the landlord may give him notice of his intention to proceed to recover possession under the authority of this act. And if the tenant does not appear, or fails to shew cause why he does not give possession, it shall be lawful for the justices acting for the division, district, or place, within which the premises are held, in petty sessions, or any two of them to issue their warrant, directing the constable to give the landlord possession. By s. 3, the execution of warrants of possession may be stayed by the tenant or occupier becoming bound, with two sureties, in a sufficient sum to cover the costs of an action against the person executing the warrant, in case a verdict should pass for the defendant, but in case of a verdict for the plaintiff, he is entitled to double costs, and the verdict and judgment supersede the warrant. By s. 6, where the landlord has a lawful title he shall not be deemed a trespasser by reason of any irregularity, but he is liable in an action on the case for special damage proceeding from irregularity.

(d) A mortgage term outstanding will bar an ejectment at law, even between heir and devisee, claiming subject to the charge; the only remedy, therefore, is in a court of equity; Barnes v. Crow, 4 Bro. C. C. 2. But it may be left to the jury to presume a conveyance of the legal estate; Hillary v. Waller, 12 Ves. Jun. 251. Yet no less time than twenty years will raise such a presumption; Doe d. Brandon v. Calvert, 5 Taunt 170.