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those behind should be turned to a naked right. But, if the new defendants, whether landlord or tenant, or both, after entering into the common rule, fail to appear at the trial, and to confess lease, entry and ouster, the plaintiff, Smith, must indeed, be there non-suited, for want of proving those requisites; but judgment will, in the end, be entered against the casual ejector, Stiles; for, the condition on which Saunders, or his landlord, was admitted a defendant is broken, and, therefore, the plaintiff is put again in the same situation as if he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process, therefore, as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken.'

§ 4. A Shorter History of the Action by the Author of Walker's American Law.-Ejectment was not originally designed for trying the title to land; but has been adopted to this object by means of a series of fictions. In arriving at its present state it has passed through three distinct stages. At first it was only used by the lessee of land, who had been ejected or ousted therefrom by a stranger, to recover damages for the ouster. We have seen that in early times a lessee for years had no security for the permanence of his title. As against the lessor, if there was no covenant for quiet enjoyment, the lessee was without remedy; for the lessor could not be treated as a trespasser. But if the ejector was a stranger the lessee might sue him for the ejectment in an action for trespass, and recover damages, but not possession of the land. In process of time, however, the courts of chancery undertook to compel the ejector, unless he could justify the ejectment under a superior title to make restitution of the land to the lessee. In this the courts of law soon followed them, though without altering the . form of action. The next stage, therefore, was to enlarge its scope, so as to enable the lessee to recover possession of the land for the unexpired term as well as damages for the ouster. But for this purpose it was necessary to show a better title than the ejector, which incidentally brought up for examination the title of the lessor, since the lessee could have no other title than 13 Blackstone's Commentaries, 200.

that derived from him. In this state of things it was perceived by the lawyers that, by recourse to several fictions, the trial of the lessor's title might be made the direct and main object of the action, instead of being an incidental circumstance. For this purpose there was only wanting a fictitious lessee, a fictitious ejector, and a fictitious ouster; and for the sake of getting rid of the almost endless technicalities and subtleties of real actions, the courts readily sanctioned the introduction of these fictions, which have now been acquiesced in for more than three centuries, and the result is, that if I claim title to piece of land, of which you are in possession, I begin by serving upon you a declaration and notice, which in this action takes the place of a writ. The declaration states that I made a lease or demise to a fictitious person, say John Doe; that he entered into possession; and that another fictitious person, say Richard Roe, forcibly ejected or ousted him from the premises. Thus John Doe becomes the nominal plaintiff and Richard Roe the nominal defendant. But appended to this declaration is a notice purporting to be written by Richard Roe to you, informing you that he has been sued, but that being a casual ejector only he shall not defend, and advising you to appear and defend. This the court will permit you to do, by entering into a consent rule, by which you confess the fictions of a lease, entry and ouster, as alleged in the declaration and agree to try the question of title only. Such is the circuitous manner in which one of the most important actions is made to effect its purpose. The form still remains that of trespass to recover damages for the ouster; but these damages are now merely nominal. You can not even recover, in this action the intermediate profits of the land, while the defendant has been in the unlawful possession of it; but must bring a separate action of trespass for mesne profits. Nor is a final judgment in ejectment conclusive of the controversy, as it is in other cases. Ordinarily a final judgment is conclusive between the same parties, in relation to the same matter. But in ejectment the parties, being fictitious, may be changed at will, and the same matter litigated again, until a court of chancery should interfere by injunction; while, therefore, much has been gained by thus superseding real actions, a still further improvement would be to abolish these fictions and



so shape the action as not only to recover possession, but mesne profits.'

§ 5. Common Law Fictions in Pleadings.-This subject may be well illustrated by an analysis of a declaration in ejectment at common law, and an examination of its form and particular facts, or essential averments. Its essential averments


First. The title, the court, and term.

The venue.

Third. Designation of fictitious parties.
Fourth. Description of the premises.
Fifth. The fictitious demise.

Sixth. The count.

Seventh. The entry.

Eighth. The ouster.

Ninth. The ad damnum. Tenth. The conclusion.

§ 6. The Subject Illustrated-Declaration in Ejectment -Old English Form.'

(1) The title. The court, and term: In the King's Bench, Michaelmas Term, 48 Geo. III.

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(3) Designation of fictitious parties: Richard Roe was attached to answer John Doe of a plea, wherefore he, the said Richard Roe, with force and arms, etc., entered into, etc.* (4) Description of the premises: The manor of county of

in the

with the rights, members, and appurtenances thereunto belonging.

1 Walker's American Law, 620 sometimes indulged in sarcasm, for (1887).

22 Chitty's Pleadings, 877.

The essential facts of the declaration relating to the title and venue in ejectment, remain substantially the same as at common law, and are essential to every well drawn complaint.

The venue was local, and even after verdict, if the venue were laid in a wrong county, it would be doubtful whether the plaintiff could obtain possession. 7 T. R. 583.

Any names might be adopted for these nominal parties. In the use of these fictitious names the lawyers

we find in Burroughs' time one Fairclaim on the demise of Fowler, plaintiff in an action of ejectment against one Shamtitle; but the common names, John Doe, for the supposed plaintiff, and Richard Roe, for the casual ejector, seem to have been preferable. Though usual, it was not necessary to insert the supposed addition of the defendant. The stat. 1 Hen. V, c. 5, not extending to declarations. 3 Bos. & Pull. 399.

It was most usual to proceed in ejectment in K. B. by declaration on a supposed original writ.


(5) The fictitious demise: Which A B1 had demised to the said John Doe, for a term which is not yet expired and ejected him from his said farm,' and other wrongs to the said John Doe there did, to the great damage of the said John Doe, and against the peace of our lord the now king, etc. (6) The count: And thereupon the said John Doe, by E F, his attorney, complains that whereas the said A B, on the day of in the reign of our said lord the king at the parish aforesaid, in the county aforesaid, had demised the said tenements with the appurtenances to the said John Doe, to have and to hold the same to the said John Doe and his assigns, from the day of, in the year aforesaid, for and during, and unto the full end and term of years, from thence next ensuing, and fully to be completed and ended. (7) The plaintiff's entry: By virtue of which said demise, the said John Doe entered into the said tenements, with the appurtenances, and became and was thereof possessed, for the said term, so to him thereof granted as aforesaid.

(8) The ouster: And the said John Doe, being so thereof possessed, the said Richard Roe, afterward, to wit, on the

day of, in the year aforesaid, with force and arms, etc., entered into the said tenements, with the appurtenances, in which the said John Doe was so interested, in manner and for the term aforesaid, which is not yet expired, and ejected him, the said John Doe, out of his said farm, and other wrongs to the said John Doe then and there did, to the great damage of the said John Doe, and against the peace of our said lord the king.

(9) The ad damnum: Wherefore the said John Doe saith that he is injured, and hath sustained damage to the value of 507.

'This was to be the person who was the real plaintiff, and who had the legal estate and right of possession at the time of the supposed demise, 7 T. R. 47, and if there was any doubt in whom the legal right of possession was vested, or if parties interested be tenants in common, several counts on the several demises of the different persons were inserted.


the leasehold estate in the premises, and does not mean a farm in its common acceptation; it is therefore applicable to houses as well as land. 2 Bl. Com. 318.

3 The ejectment or ouster should be stated to have been after the commencement of the supposed demise, and it is usual, though not necessary, to mention a particular day. Cro.

The term farm here signified Jac. 311.



(10) The conclusion: And therefore he brings his suit, etc.


MR. C. D. [The tenant in actual possession.]

I am informed that you are in possession of, or claim title to, the premises in this declaration of ejectment mentioned, or to some part thereof, and I being sued in this action as a casual ejector only, and having no claim or title to the same, do advise you to appear in next term (or if the premises lie in London or Middlesex, "on the first day of next term "), in his Majesty's Court of King's Bench, wheresoever, etc. (or in the Common Pleas," in his Majesty's Court of Common Bench at Westminster"), by some attorney of that court, and then and there, by rule of the same court, to cause yourself to be made defendant in my stead, otherwise I shall suffer judgment therein to be entered against me by default, and you will be turned out of possession.

Dated this

day of, A. D.

Yours etc.,


1Strictly speaking this was the ment. 2 T. R. 351. Under the name of the casual ejector, but where statute of Illinois, which abolished the notice was signed in the name of the common law fictions, but reJohn Doe, the nominal plaintiff, the tained the common law practice and court refused to set aside the judg- pleadings, the declaration has taken the following form:

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In the Circuit Court of said county, October Term, A. D. 1889. John Doe, plaintiff in this suit by George Ross, Attorney, comes and complains of Richard Roe, defendant, who is summoned according to the form of the statute, in such case made and provided, in a plea of ejectment.

For that whereas, the said plaintiff was on the first day of September, in the year of our Lord one thousand eight hundred and eighty-nine, possessed of a certain premises, with the appurtenances, situate in the said county, and known and described as follows, to wit: The South West quarter of section thirty-four, in township thirty-eight north, of range twelve, east of the third principal meridian. Which said premises the said plaintiff, John Doe, claims in fee, and the said plaintiff, John Doe, being so possessed thereof, the said defendant, Richard Roe, afterwards, to wit, on the second day of September, in the year of our Lord one thousand eight hundred and eighty-nine entered into the said premises, and ejected the said plaintiff, John Doe, therefrom, and unlawfully withholds from the said plaintiff, John Doe, the possession thereof, to the damage of said plaintiff of one hundred dollars, and therefore he brings suit, etc.

Puterbaugh's Common Law, 611.

GEORGE ROSS, Attorney for Plaintiff.

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