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Suck us the aiodern way of obliquely bringing in question the title to lands and tenements, in order 10 try it in this collateral manner; a method which is now universally adopted in almost every case. It is founded on Ghee same principle as the ancient writs of assise, being calculated to try the mere possessory title tu an estate ; and bath succeeded to those real actions, as being infinitely more convenient for attaining the end of justice; because the form of the proceeding being entirely fictitious, it is wholly in the power of the court 10 direct the application of that fiction, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The

writ of ejectment and its nominal parties (as was resolved by all {"206] the judges) (y) are " judicially to be considered as the fictitious

(y) Mich. 39 Geo. II. 4 Burr. 668.

estate. But in one instance, in favour of land- tule (1 Geo. IV. c. 87.) 5 B. & A. 770. But lords, a remedy by ejectment is given nearly an agreement in friting, for apartments for resembling the ancient mixed action ; for it is three months certain, comes within the meanenacted by I Geo. IV. c. 87. that upon refusaling of the words of the act, where the party by a late ienant to deliver up possession upon holds for any term, or number of years certain, the expiration of his tenancy by lease or writ. or from year to year. 5 B. & A. 766. I Dow. (en agreement, and after lawful deinand in & Ry. 133. A fenant being in possession, un. writing, the landlord, on bringing an ejectment, der an agreement that the Jandlord should may address a notice at the foot of the declara. grant a lease for eight years, and that the tetion to the tenant requiring him to appear in nant should pay 40s. for every day he held court on the first day of the next term;

or if in over, continued to hold the whole time, though Wales, or the counties palatine of Chester, the lease was never granted ; and upon his Lancaster, or Durham, on the first day of the holding over, notice to quit and demand of assizes, pr appearance day, there to be made possession, with notice of ejeciment, was redefendant, and to find bail; or in case of his gularly served. It was held that the tenant non-appearance, upon production of the lease, was not to be treated as a tenant from year to agreement, &c, and the proper affidavits by year, and that the demand of possession was the landlord, &c. the court may grant a rule, sufficient notice within the statute, so as to calling on the tenant to shew cause why he entitle the plaintiff to the benefit of the under. should not, upon being admitted defendant, taking, and security required by thal statute. beside entering into the common rule, under 2 Dow. and Ryl. 565. Lake, in case a verdict should pass against him, The rule nisi, calling on a tenant to enter to give the plaintiff a judgment, to be entered into a recognizance under this statute, need up against the real defendant of the term next not specify all the particulars thereby required, preceding the trial; and also, why he should as the court may mould the rule according to not enter into a recognizance by himself and its requisites, upon shewing cause. 5 B. & two sufficient surelies in a reasonable sum (to A. 766. I Dowl. & Ry. 433. The time within be named), conditioned to pay the costs and which the undertaking and security required damages which shall be recovered by the plain. by the statute shall be given, is to be fixed by tiff in the action. Upon the rule being made the court at the time the rule is granted. 2 absolute, if the tenant do not conform, judg. Dowl. & Ry. 688. After a rule granted in a ment to be for the plaintiff. The act further cause, entitled Doe, &c. v. Roe, to which the provides, that whether the defendant appear or tenant in possession appeared, judgment was not at the trial, the plaintiff may go into proof, entered up, and execuijon taken out against and the jury give damages for mense profits the tenant by name, and it was held not to be down to the verdict or a day specified therein. irregular. 3 Dow. & Ryl. 230. See | Dow. & Ryl. 433. But when the re- The court, on making a rule absolute, un. quired undertaking is given, it is provided, der this act (no cause being shewn), for the that is it appear to the judge that the finding tenant's undertaking to give the plaintiff judg. of the jury was contrary to the evidence, he ment, to be entered up against the real de may order a stay of execution till the fifth day fendant, and to enter into a recognizance in a of the next term; and he is bound to make reasonable sum, conditioned to pay the costs this order if the defendant desire it, upon his and damages which should be recovered by undertaking to give security not to commit the plaintiff in the action; ordered the tenant any kind of waste, or sell the crops. &c. And to appear in the next succeeding term, to find if 'the result of the trial under this act be such bail as was specified in the former rule , against the landlord, the tenant shall have and on no cause being shewn to that order, judement with double costs.

they directed the rule for entering up judgThe statute 1 Geo. IV. c. 87. does not extend ment for the plaintiff to be made absolute. to the case of a lessee, holding over after notice. The court can only give a reasonable sum for o quit, given by himself, where his tenancy has the costs of the action, and not for the mesne rol expired by the efflux of time. I Dow. & profits, the amount of which must be ascertailRv. 5:10. And where a tenant holds from year ed by the prothonotary. 6 Moore, 54. Sve to year, without a lease or agreement in wri further, as to the proceedings on this statute mang, it is not within the first section of the sta. Tidd, 8 ed. 541, &c.

form of an action, really brought by the lessor of the plaintiff against the tenant in possession : invented, under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being entangled in the nicely of pleadings on either side." But a writ of ejectment is not an adequate means to try the title of alt

' estates ; for on those things, whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the parties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament (z): except for cithes in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII. c. 7. which doctrine hati. since been extended by analogy to tithes in the hands of the clergy (a): nor will it lie in such cases, where the entry of him that hath right is taken away by descent, discontinuance, twenty years' dispossession, or otherwise.

This action of ejectment is however rendered a very easy and expedicious remedy to landlords whose tenants are in arrear, by statute 4 Geo. II. c. 28. which enacts, that every landlord, who hath by his lease a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards (15), (16).

2. The writ of quare ejecil infra tèrminumSlieth, by the ancient law, where the wrongdoer or ejector is not himself in possession [*207] of the lands, but another who claims under him. As where a man leasech lands to another for years, and, after, the lessor or reversioner entereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger : now the lesseu cannot bring a writ of ejectione firmae or eject

(s) Brownl. 129. Cro. Car. 492. Stra. 54. (a) Cro. Car. 301. 2 Lord Raym. 789. (15) 2 R. S. 505, § 30, &c.

In such case, after fourteen days' notice, the (16) Where there is a sufficient distress up- justices may pat the landlord in possession; on the premises, the landlord cannot maintain and the 57 Geo. III. c. 52. extends the regulaan ejeciment, upon his right of re-entry, for tion to such tenants as are tail a year in arrea;. non-payment of rent, under this statute : nor As to the proceeding of the justices under can he maintain an action of cjectment for a these acts, and how far the record of such proforfeiture at common law, unless he has de. ceedings will be conclusive in their behalf, manded the rent on the last of the specified see 3 Bar. & Cres. 649. days for the payment thereof, just before sun- Difficulties having frequently arisen, and

sel. As where the proviso in a leuse is, "that considerable expenses having been incurred • if the rent shall be behind, and unpaid by the by reason of the refusal of persons, who had

space of thirty, or any other number of days been permitted to occupy, or who had intruded after the days of payment, it shall be lawful themselves into parish houses, to deliver up for the lessor to re-enter.” A demand must possession of such houses, by stal. 59 Geo. III. be made of the precise rent in arrear, on the c. 12. s. 24. two justices are empowered in thirtieth or other last day, a convenient time such cases to cause possession to be delivered just before and until sunset upon the land, or to church wardens and overseers. The mole at the dwelling-house, or the most notorious of proceeding is prescribed by this statute. place. I Saund. 287. n. 16. 7 T. R. 117. The visitors and leoffees of a fee gramma

The Il Geo. U. c. 19. s. 16. gives the land. school, who have dismissed the school-master lord a summary remedy hy application to two for misconduct, cannot maintain ejectment for justices of the peace, where a tenant at rack the school house till they have determined the rent, or at full three-fourths of the yearly value, master's interest there'n, upon sumraons in being in arrear a year's rent, deserts the pre- the ordinary manner, when he might be heard mises and leaves the same uncultivated or to answer the charges forming the ground of noccupied, and no sufficient distress thereon. dismissal. 1 Bing. 35,. 8 T. R. 109.

(43) See Hox. n. (43) at the end of the Vol. B. IU.

ment against the feoffee : because he did not eject him, but the reversioner; neither can he have any such action to recover his term against the reversioner, who did oust him ; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2. c. 24. as in a case where no adequate remedy was already provided (b). And the action is brought against the feoffee for deforcing, or keeping out, the original lessee, during the continuance of his term; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains ; and also shall have actual damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenant in possession (by what means soever he acquired it), and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse (17).

(6) F. N. B. 198.

(17) In New York the Revised Statutes can only plead the general issue or demur. have essentially altered the action of eject. The verdict specifies minutely which of the ment; all the old fictions are abolished. The plaintiffs is entitled to recover, and against plaintiff is the person actually claiming title, which of the defendunts; also, whether he is and the defendant must be an actual occupant to recover the whole or an undivided share, of the lands, or, if there be no occupani, he the see, or a smaller specified estate. must be a person claining title. The action is This action may be brought as well where coinmenced by serving a copy of the declara. a writ of right or dower before lay, as in tion on the defendant, and also a notice sub. the cases formerly allowed for the action of joined in writing, stating that the declaration ejeciment: but cannot be brought by a mort. will be filed on some specified day in the same gagee, or his assigns or representatives. term, if it be term time, or else in the next As to the conclusiveness of the judgment, see term; and that a rule will then be entered re. ante, note 15. p. 194. quiring himn to appear and plead in 20 days, Instead of the action for mense profits, the or judgment will be entered against him and plaintiff, in one year after judgment, enters on he be deprived of the premises. The decla- the record a suggestion of his claim, which is ration must be served on the defendant person in the same form as the declaration for use ally, or on some person of suitable age at his and occupation ; but is served in the same residence : but if it be not served personally, way as the declaration in ejectment. The the rule to plead cannot be entered without rule to plead and other proceedings are then the special order of the court.

as in ordinary personal actions. But the de. The declaration states that the plaintiff was fendant cannot controvert the matters that possessed of the premises on soine specified might have been controverted in the ejectinent day after his title accrued, and that the de. suit: he may, however, show in mitigation of fendant, on some subsequent specified day, damages a subsequent recovery by himself or entered and withholds them unlawfully froin another of the same preinises, or of a part there. the plaintiff to his damage any nominal sum. of: he may also show the actual time al which

The premises must be described with such he entered. If the action be for dower, comcertainty that possession of them can be de. missioners are appointed to make admeasure. livered. The plaintiff must also state whe- ment of dower. (2 R. S. 303–312.) ther he claims the whole or an undivided share, By the 2 R. Š. 312, &c., a person being and what that share is; whether he claims in three years in possession of lands or tene. fee, for his own life or the life of another, or ments, and claiming the see, may compel any for a term of years; and must specify such claimant to come into the Supreme Court and lives and the duration of the term. If the ac- controvert the plaintiff's title, or be forever tion be to recover dower, the widow states barred. But if the claimant be under any of that she was possessed of an undivided third the usual disabilities, the plaintiff cannot pro. part of the premises as her reasonable dower ceed in this way. See ante, p. 178, note (t). as widow of her husband, naming him.

Summary proceedings are also allowed (2 In any case (except of dower) there may be R. S. 512, &c.) against a tenant who holds several counts, and several parties may be over after the expiration of his te m, or after named as plaintiffs, jointly in one count and taking the benefit of any insolvent act, or act separately in others.

for the relief of his person from imprison. The consent rule, and the confession of ment, or after a sale under an execution lease, eniry, and ouster, being thus inade un- against him, and the title under such sale be. necessary, are abolished.

coming perfected, or after default in payment The defendant may by rule of court or or- of rent, while in this last case no goods aro der of a judge, compel the attorney for the on the premises sufficient to satisfy the rent plaintiff to produce his authority to sue : the by distress : or if the tenant leaves the premi. proceedings thet are as in ordinary actions ses unoccupied and uncultivated and there salil the verdict, except that the defendant are not sufficient goods to satisfy such distress.

CHAPTER XII.

OF TRESPASS (1).

In the two preceding chapters we have considered such injuries to reai proporty, as consisted in an ouster, or amotion of the possession. Those which remain to be discussed are such as may be offered to a man's real property without any amotion from it.

The second species therefore of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespuss. "Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which (as we have formerly seen) an action of trespass vi et armis in assault and battery will lie; taking or detaining a man's goods are respectively trespasses ; for which an action or trespass vi et armis, or on the case in irover and conversion, is given by the law: so also non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded : and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense ; for which we have already seen (a) that whenever the act itself is directly and immediately injurious to the person or property of another, *and therefore necessarily accompanied with some force, [*209] an action of trespass vi et armis will lie ; but, if the injury is only consequential, a special action of trespass on the case may be brought (2)

(a) See page 123.

(1) See in general, Com. Dig. Trespass; thrower, or whether the act of the second Bac. Ab. Trespass ; Vin. Ab. Trespass ; 1 thrower was involuntary,(which seems to have Chitty on Pl. 149 to 172.

been the opinion of the jury), or willul and (2) See these distinctions fully considered, mischievous, and if so, whether the first i Chitiy on Pl. 115 to 122. and 149 to 172. thrower alone ought not to have been answer. The distinctions between actions of trespass able for the consequences. For if A. throws ni et armis for an immediate injury, and actions a stone at B., which, after it lies quietly at his of trespass upon the case for a consequential foot, B. takes up and throws again at c., it is damage, are frequently very subtle : see the presurned that c. has his action against B. subject much considered in 2 Bl. Rep. 892. only; but if it is thrown at B., and B., by In a case where an action of trespass vi et ar. warding it off from himself, gives it a different mis was brought against the defendant for direction, in consequence of which it strikes throwing a lighted squid in a public market, C., in that case, it is wholly the act of A., and which fell upon a stall. the uwner of which, lo B. must be considered merely as an inani. defend himself and his goods, took it up and mate object, which may chance to divert its threw it to another part of the market, where course.' In the case of Leame v. Bray, 3 East, it struck the plaintiff and put out his eye; the 598, it was decided, that if one man drives a question was much discussed, whether the carriage, being on the wrong side of the road, person injured ought to have brought an action against another carriage, though uninteny trespass ii et armis, or an action upon the tionally, the action ought to be trespass vi et case; and oi.e of the four judges strenuously armis, and the court deciare generally, that if contended that it ought to have been an action the injurious act be the immediate result of upon the case. Bui I should conceive, that the force originally applied by the defendant, the question was more properly this, viz. and the plaintiff be injured hy it, it is the subwhether an action of trespass vi et armis lay ject of an action of trespass vi et armis by all against the original or the intermediate the cases both ancient and modern.

+ in New-yurk, by 2 R. S. 553, 16, case may bo brought wherever trespass rould, esoed. for wrongs to real estate. Voi II.

24

But in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a necessary consequence, that this right must be exclusive ; that is, that the owner may retain to himself the sole use and occupation of his soil : every entry therefore thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury; " qui alienum funulum ingreditur, potest a domino, si is praeviderit, prohiberi ne ingrediatur (b).” But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to forbid che entry, has earried the point much farther, and has treated every entry upon another's lands (unless by the owner's leave, or in some very particular cases), as an injury or wrong, for satisfaction of which an action of trespass will lie ; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained (3).

Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close : the words of the writ of trespass cominanding the defendant to shew cause quare clausum querentis fregit. For every man's land is in the eye of the law enclosed and set apart from his neighbour's: and that either by a visible and material fence, as one field is divided

from another by a hedge ; or by an ideal invisible boundary, [*210] existing only in the contemplation of law, as when one man's

land adjoins to another's in the same field (4). And every such entry or breach of a man's close carries necessarily along with it some damage or other; for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbage (c) (5).

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of tres. pass ; or, at least, it is requisite that the party have a lease and possession of the vesture and herbage of the land (d) (6). Thus if a neadow be

(d) Dyer, 285. 2 Roll. Abr. 549. N. B. 87, 88. (3) Trespass for breaking a close is sustain. (6) As to the possession and title essential, able without previous notice ; but it is most see Chitty on Pl. 159 10 166. An exclusive prudent to serve a notice, and proceed for a interest in the crop, without an interest in the subsequent trespass, upon which the judge on soil, is sufficient to sustain an action of tres the trial will usually certify that the irespass pass. 3 Burr. 1826. Bro. Abr. Tres. 273 was wilful, which will entitle plaintiff to full Bull. N. P. 85. But possession, actual or costs, though the damages be under 40s. 8 & constructive, must be proved. | Easi, 244. 4 9 W. III. c. 11. s. 4. 3 Wils. 325. 6 T. R. Taunt. 547. 6 East, 602. Trespass will not 11. 7 T.R. 449. 3 East, 405.7

lie for entering a pew or seat, because the (4) Doctor & Stud. 30. 7 East, 207. 2 plaintiff has not the exclusive possession, the Stra. 1004. i Burr. 133.

possession of the church being in the parson. (5) In an action of trespass for entering the IT. R. 430. If trees are excepted in the lease, grounds of another person, and sporting over the land whereon they grow is vecessarily ex them the jury may take into consideration, in cepted also, consequen-ly the landlord may determining their verdict, not only the actual maintain trespass for breaking ,his close, if the damage sustained by the plaintiff, but circum tenant cut down the trees. Selw. N. P. 1287, stances of aggravation and insuli on the part where two fields are separated by a hedge of the defendant. Merest v. Harvey, 1 Marsh. and ditch, the hedge prima facie belongs to he 1395 Taunt. 442.

owner of the field in which the ditch is not B + See in New-York, 2 R. S. 614, 12.

(6) Inut. 2. 1. 12. (c)

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