AMENDMENT UNDER THE COMMON LAW PROCEDURE ACTS. I. 15 & 16 Vict. c. 76, s. 222, and 17 & 18 Vict. c. 125, s. 96, II. Costs as affected by the County Court Acts, where Sums 1419 1. Of the Nature of the Action of Ejectment, Of the Requisites to support an Ejectment VII. Of the Proceedings under 15 & 16 Vict. c. 76, s. 210, in order to obviate the Difficulties attending Re- I. Of the Nature of the Action of Ejectment. AN ejectment is a possessory action, and is the ordinary method by which the title to lands and tenements is tried and the possession B recovered (a) in all cases where the party claiming title has a right of entry; whether such title be to an estate in fee, fee tail, for life, or for years. From this description it should seem that, in strictness, this action could be maintained for the recovery of that species of property only, whereon an entry can be made. But it will be found that, in a few instances, which will be more particularly mentioned hereafter, this action has been extended beyond these limits. After the disuse of real actions (b), questions of title to land were usually tried in actions of replevin or trespass quare clausum fregit; and this practice continued, until the method of trying titles by the action of ejectio firma was introduced (c). This action was commenced (without any writ) by a declaration, which alleged a lease for a given number of years from the real claimant to a nominal plaintiff (generally styled John Doe), an entry on the land by the nominal plaintiff under the lease, and his subsequent ouster by a nominal defendant (generally styled Richard Roe); and at the foot of such declaration was a notice addressed to the real tenants in possession, warning them that unless they appeared and defended the action within a specified time, they (the real tenants) would be turned out of possession. It need scarcely be said that the lease to John Doe, his entry on the land, and his ouster by Richard Roe, were pure fictions, but the tenant in possession was not permitted by the courts to defend the action and get his name substituted for that of the nominal defendant Richard Roe (who was styled "the casual ejector"), without entering into what was called the consent rule," by which he bound himself to admit the alleged lease, entry and ouster, and to insist at the trial on the title only; the question at which accordingly was, whether the real claimant, on the day of the alleged demise, was entitled to demise. the property, i. e. whether he was then legally entitled to actual possession or not. In this action, however, being originally a personal one, damages only could be recovered until some time between the 6th Ric. II. and 7th Edw. IV., about which time it appears, from the Year-book of 7 Edw. IV. fol. 6, that it had been resolved by the judges that the term, as well as damages, might be recovered (d). In consequence of this determination the 66 (a) In trespass quare clausum fregit, trover, and other forms of action, the title to land may come in question and be decided, but in them damages alone can be recovered. Cole on Ejectinent, 63. (b) By 3 & 4 Will. IV. c. 27, s. 36, all real and mixed actions, (except a writ of right of dower, or writ of dower unde nil habet, or a quare impedit, or an ejectment,) and plaints in the nature of any such writ or action, (except a plaint for freebench or dower,) were abolished. (c) In the conclusion of Alden's case, 43 Eliz., 5 Rep. 105, b., Sir E. Coke has remarked, that titles of land were at that day for the most part tried in actions of ejectio firma. (d) "Until the end of Edw. IV. the possession was not recovered in an ejectio firma, but only damages." Hale's H. C. L. by Runnington, Serjt. ed. 1820, p. 201. See further, on this subject, a very learned and elaborate note by the reporters in Doe v. Errington, 1 A. & E. 756, n. I am not aware of any judgment for the recovery of the term prior to that in East. T. 14 Hen. VII. Rot. 303, a copy of the record of which will be found in Rastall's Entries, fol. 252, b., 253, a., ed. 1670. action became in its nature a mixed one, i. e., a real one in respect of the recovery of the land, and a personal one in respect of the recovery of damages. The damages, however, were merely nominal, the land being the real subject matter of dispute and the law having provided another remedy for the injury sustained by the claimant in being kept out of possession from the time when his title accrued, to the time of recovering possession in the ejectment, viz. by an action of trespass for mesne profits; for a further account of which, see post, Sect. XIII. The practical procedure in ejectment has been entirely remodelled by the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), ss. 168 to 221. The above-mentioned fictions are wholly abolished. No damages are now recoverable, except in cases between landlord and tenant, under the provisions of sect. 214, and this at the option of the landlord (e). The action is commenced by a writ issued by the claimant, and directed to the persons in possession (either by themselves or by their servants (ƒ)) by name, and to all persons entitled to defend the possession of the property claimed, describing it with reasonable certainty (g), and containing a notice that in default of appearance (within sixteen days) judgment may be signed and the parties named in the writ turned out of possession. By sects. 172 and 173 provision is made for the appearance of persons not named in the writ. By sect. 174, for limiting the defence to a part of the premises claimed (h). By sect. 175, for the want of reasonable certainty in the description of the premises, which is not to nullify the writ (i). And by sect. 178 it is provided, that on an appearance being entered, an issue may at once be made up without any pleadings, "and the question at the trial shall" (except in the cases of joint tenants, tenants in common, and coparceners)" be, whether the statement in the writ of the title of the claimants is true or false, &c." sect. 180; and in the above excepted cases, in addition to the above question, the further one, whether an actual ouster has taken place, sect. 188. By sect. 185, (e) Smith v. Tett, 9 Exch. 307. (f) See Goodtitle v. Badtitle, 4 Taunt. 820. (g) It was formerly held, that the description of the property ought to be made with such certainty that the sheriff might know, from the record itself, of what he was to deliver possession, but the strictness of this rule was relaxed, on the ground that the sheriff was to take his information from the party recovering. Portman v. Morgan, Cro. Eliz. 465; Cottingham v. King, 1 Burr. 623; Connor v. West, 5 Burr. 2673. (h) This was formerly done under a rule of Court, M. T. 1820; 1 Q. B. 700, in notis. (i) Premises were laid in the declara tion to be in the parish of Farnham, and at the trial were proved to be in the parish of Farnham Royal; but it was not shown by the defendant that there were two Farnhams. Variance immaterial. Doe v. Salter, 13 East, 9. Lands were described in the declaration to be in the parish of Westbury, in the county of Gloucester, and it was proved at the trial that there were two parishes of Westbury in that county; viz. Westbury upon Trym and Westbury upon Severn. Held no variance; Doe v. Harris, 5 M. & S. 326; although if there had been any plea in abatement in ejectment, it might have been a good objection on such plea; but there are no pleadings now. Neave v. Avery, 16 C. B. 328. |