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§ 7. The Consent Rule.-In many of our States where the rules of the common law prevail, we find statutory enactments, of which the following is an example:

The consent rule abolished: "The consent rule, heretofore used, is hereby abolished." 1

These enactments naturally lead us to the inquiry as to what the consent rule is. Under the old English practice, in order to lay the foundation of this action, the party claiming title entered upon the land and then gave a lease of it to a third person, who, being ejected by the other claimant, or some one else for him, brought a suit against the ejector in his own name. To sustain the action, the lessee was required to prove a good title in the lessor, and in this collateral way the title was tried. To obviate the difficulty of proving these forms, the action was made substantially a fictitious process.

The defendant was required to confess that a lease had been made to the plaintiff, that he entered under it, and that he had been ousted by the defendant; or, in other words, to admit or confess the lease, entry and ouster, and that he would rely only upon his title. This was the consent rule. The defendant was required to enter on record that he confessed the lease, entry and ouster of the plaintiff. The rule contained the following particulars: 1st. The person appearing consents to be made defendant instead of the casual ejector. 2nd. To appear at the suit of the plaintiff, and if the proceedings are by bill, to file common bail. 3rd. To receive a declaration in ejectment and to plead not guilty. 4th. At the trial of the case to confess the lease, entry and ouster, and insist upon his title only. 5th. That if, at the trial, the party appearing shall not confess lease, entry and ouster, whereby the plaintiff shall not be able to prosecute his suit, such party shall pay to the plaintiff the cost of the non pros., and suffer judgment to be entered against the casual ejector. 6th. That if a verdict shall be given for the defendant, or the plaintiff shall not prosecute his suit for any other cause than the non-confession of lease, entry and ouster, the lessor of the plaintiff shall pay costs to the defendant. 7th. When the landlord appears alone, that the plaintiff shall be at liberty to sign judgment immediately against the casual ejector, but that execution shall be stayed until the court shall further order. 1 R. S. Illinois, 1845, p. 207, § 18.

24 Bouvier's Institutes, 59; Adams on Ejectment, 233.

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S. The Consent Rule on Record. The following form of the entry upon the records of the Court of Common Pleas more fully illustrates the subject:

-Term in the

the

year, &c. day of

(to wit) Doe, on the demise of A. B. )

It is ordered against Roe. by consent of I. K., attorney for the plaintiff, and L. M., attorney for C. D., who claims title to the tenements in question, which premises he, the said C. D. hereby admits to be or consist of (here describe the premises for which it is intended to defend) for which he intends (as tenant or landlord) to defend this action of trespass and ejectment, that he may be admitted defendant, and that the said defendant shall immediately appear by his attorney, who shall receive a declaration, and plead thereto the general issue, this term; and at the trial thereupon to be had, the said defendant shall appear in his own proper person, or by counsel or attorney, and confess lease, entry, and ouster, and that he was, at the time of the service of the declaration, in possession of the premises hereinbefore mentioned and specified, and insist upon the title only, otherwise let judgment be entered for the plaintiff against the now defendant by default. And by the like consent, it is ordered, that if, upon trial of the said issue the said C. D. shall not confess lease, entry, and ouster, and such possession as aforesaid, whereby the plaintiff shall not be able further to prosecute this action against the said C. D., then no costs shall be allowed for not further prosecuting the same, but the said C. D. shall pay costs to the plaintiff's lessor in that case, to be taxed by the prothonotary. And it is further ordered by the like consent, that if, upon the trial of the said issue, a verdict be found for the said C. D., or it shall happen that the plaintiff shall not further prosecute his said action for any other cause than for not confessing lease, entry, and ouster, and such possession as aforesaid, then the lessor of the plaintiff shall pay to the said C. D. costs in that case to be adjudged.

By the Court.'

9. Nature of the Action in the American States.-In those States in which the code system prevails, it is usually

'Adams on Ejectment, 472.

provided that all forms of actions existing prior to the adop tion of the code be abolished, and that thereafter there be but one form of action called a civil action.'

In Illinois, where common law actions are preserved, the action of ejectment is said to be under the statute regulating it a real action, and not even technically, an action in tort." In other States it is held to be a mixed action.

Ejectment in Michigan is a possessory action, and does not necessarily involve the title of the lands in litigation. The party having the right to the present possession is always entitled to recover, and it is quite unnecessary for him to show more, unless some question of damages or the value of improvements made by the defendants requires it. If the plaintiff has been in possession of the land claiming title, he may rest with that showing as a prima facie case; and will be entitled to judgment upon it unless the defendant shows either a present right in himself, or an outstanding title in some third party upon which he is at liberty to rely. But a mere intruder can not be permitted to protect his intrusion under an outstanding title in a stranger; being a mere trespasser, it would be a violation of just principle to permit it.o

10. Origin of the Term.-The term "ejectment " is derived from the Latin word ejectio-"a casting out," or from the term ejectione firma “ejection, ejectment of farm;" or from the term quare ejecit infra terminum-" wherefore did he eject within the term?" Ejectment has been defined to be a personal action, founded on a possessory right, by which a lessee for years, when ousted, shall recover his term and damages. “In some States it is a possessory remedy, and can be maintained. only when the plaintiff has a present right of possession. Anciently, as we have seen, it was an action brought by a lessee of lands for years, to repair the injury done him by dispossession. But the action has been so moulded to the condition of the times, as to retain but few traces of its original form. Its

1 6 Am. & Eng. Ency. 200.

2 Puterbaugh's Common Law, 604. 3 Covert v. Morrison, 49 Mich. 133;

13 N. W. Rep. 390 (1882).

* Berham v. Cook, 43 Mich. 573; 6 N. W. Rep. 868; Covert v. Morrison, 49 Mich. 133.

Am. Dec. 607; Hibbard v. Little, 9
Cush. (Mass.) 475; Van Anken v.
Monroe, 38 Mich. 725; Gamble v.
Horr, 40 Mich. 561; Covert v. Morri-
son, 49 Mich. 133.

6 Jackson v. Horder, 4 Johns. (N. Y.) 202: 14 Am. Dec. 262; Covert v.

' Warner v. Page, 4 Vt. 291; 24 Morrison, 49 Mich. 133.

NATURE OF THE ACTION.

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benefits were extended long since, not only to cases for the recovery of land from which a tenant has been unlawfully ejected, but to cases for the trial of possessory titles and the determination of the right to the freehold itself.

§ 11. Real Actions. A real action was the ancient remedy by which the right of property or of possession in freehold estates or hereditaments was determined, and the possession restored. The complainant or party deforced, was called the demandant; the defendant or party in possession, the tenant. The term was used in contradistinction to personal actions. At common law, in a purely real action, the demandant counted for and recovered the seizin of land, or an interest in realty, and rarely proceeded for compensation in damages or for personal property. The action is still retained in Massachusetts and perhaps a few other States."

1 Booth on Real Actions, 74; Stearns on Real Actions, 346; Jackson on Real Actions, 99.

2 Revised Statutes Mass. (1882) 1018.

CHAPTER II.

WHEN EJECTMENT IS AND WHEN IT IS NOT THE PROPER

REMEDY.

§ 1. For What Kinds of Real Property the Action Will Lie.

2.

It Lies for Accretions, etc.

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9.

10.

Where the Rule Does not Apply.

Reliction-The Term Defined.

11. Encroachments, Buildings and Other Structures.

12. Churches and Chapels, etc.

13. Commons, etc.

14. Ejectment on Limited Devises, etc.-Estates in Perpetuity.

15. Recovery of Dower in Ejectment.

16. Assignee of Widow's Dower can not Maintain Ejectment. 17. Fisheries.

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23. The Rule does not Apply Where the Public Authorities Obstruct the Road.

24. Ejectment in Favor of an Infant for Lands Conveyed During

25.

26.

27.

Infancy.

For an Island in a River.

Lands Forfeited for Violations of Conditions, etc.

Breaches of Conditions Subsequent - Intoxicating Liquors. 28. Mines and Mining Rights-Rule Stated by Bainbridge.

29. The Law Stated by Adams.

30. Mining Rights and Privileges.

31. Mining Rights and Reservations.

32. A Coal Mine.

33.

Rock Oil-Petroleum, etc.

34. Mill Seat-Right to Erect a Mill Dam.

35. The Right to Eject Railroad Companies May be Lost by Acquies

cence.

36. Owner of Lands Taken Under the Eminent Domain Act.

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