A considerable alteration in the manner of proceeding in the action was occasioned by this rule, although it was only intended to remedy a particular evil. It became the general practice to have the lessee ejected by some third person, since called the casual ejector, and to give the regular notice to the person in possession, instead of making him, as before, the trespasser and defendant. A reasonable time was allowed by the courts, for the person in possession, after the receipt of the notice, to make his application for leave to defend the action, and, if he neglected to do so, the suit proceeded against the casual ejector, as if no notice had been necessary.

The time when this rule was made is unknown, but as the evil it was intended to remove must soon have been discovered, it probably was adopted shortly after the remedy grew into general use.(o) It seems, also, to have been the first instance in which the courts interfered in the practice of the action, and is therefore remarkable as the foundation of the fictitious system by which it is now conducted.

In this state, with the exception of a few practical regulations, not necessary to be here noticed, the action of ejectment continued until the time of the commonwealth. Much trouble and inconvenience, however, attended the observance of the different formalities. If several persons were in possession of the disputed lands, it was necessary to execute separate leases upon the premises. of the [13] different tenants, and to commence separate actions upon

the several leases.(p) Difficulties also attended the making of entries, and the action of ejectment had, by this time, grown into such general use, as to make these inconveniences sensibly felt. A remedy, however, was discovered for them by Lord Chief Justice Rolle, who presided in the Court of Upper Bench during the Protectorate; and a method of proceeding in ejectment was invented by him, which at once superseded the ancient practice, and has by degrees become fully adapted to the modern uses of the action.(q)

By the new system, all the forms, which we have been describing, are dispensed with. No lease is sealed, no entry or ouster really made; the plaintiff and defendant in the suit are merely fictitious names, and in

(0) Fairclaim, d. Fowler. v. Shamtitle, Burr. 1290-1297.

(p) Co. Litt. 252. Argoll v. Cheney. Palm.

402.

(4) Styles, Prac. Reg. 108. (ed. 1657.)

fact all those preliminaries are now only feigned, which the ancient practice required to be actually complied with. [1]

An inquiry into the numerous regulations which have been made for the improvement of the modern practice, must be reserved for a future part of this work; but it may be useful to give in this place a brief outline of the system, although a detailed account will be hereafter necessary.

A., the person claiming title, delivers to B., the person in possession, a declaration in ejectment, in which C. and D., two fictitious persons, are made respectively plaintiff and defendant; and in which C. states a fictitious demise of the lands in question from A. to himself for

a term of *years, and complains of an ouster from them by D. [* 14] during its continuance. To this declaration is annexed a notice, supposed to be written and signed by D., informing B. of the proceedings, and advising him to apply to the court for permission to be made defendant in his place, as he, having no title, shall leave the suit undefended. Upon the receipt of this declaration, if B. do not apply within a limited time to be made defendant, he is supposed to have no title to the premises; and upon an affidavit that a declaration has been regularly served upon him, the court will order judgment to be entered against D., the casual ejector, and possession of the lands will be given to A., the party claiming title. When, however, B. applies, pursuant to the notice, to defend the action, the courts annex certain conditions to the privilege. Four things are necessary to enable a person to support an ejectment, namely, title, lease, entry, and ouster; and as the three latter are only feigned in the modern practice, C. (the plaintiff) would be nonsuited at the trial if he were obliged to prove them. The courts, therefore, compel B. if made defendant, to enter into a rule, generally termed the consent-rule, by which he undertakes, that at the trial he will confess the lease, entry, and ouster, to have been regularly made, and rely solely upon the merits of his title; and, lest at the trial he should break this engagement, another condition is also added, that in

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[1] "§ 6. The use of fictitious names of plaintiffs or defendants, and of "the names of any other than the real claimants and the real defendants, "and the statement of any lease or demise to the plaintiff, and of an ejectment by a casual or nominal ejector, are hereby abolished."- "Revised Statutes of New-York, Part 3, Chap. 5, Tit. 1, § 6, (Vol. 2, p. 304.)

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such case he shail pay the costs of the suit, and shall allow judgment to be entered against D., the casual ejector. These conditions being complied with, the declaration is altered, by making B. the defendant instead of D., and the cause proceeds to trial in the same nanner as in other actions.

The advantages resulting from this method are obvious: the [ *15] claimant is exempted from the observance of useless *forms, and the tenant admits nothing which can prejudice the real merits of the case.

It could not, indeed, be expected that a change so extensive, should, in the first instance, be entirely free from defects, nor that it would not, like other innovations, occasion some inconvenience when first introduced. For a few years after its invention, the courts seem occasionally to have been confused between the ancient and modern systems, and not to have established, so distinctly as might have been desired, the principles which were to regulate the proceedings they had so newly adopted. The action has however, now attained a considerable degree of perfection. Its principles are clearly understood, and its practice is reduced to a regular and settled system. The legislature has frequently interfered to correct its deficiencies. The courts continue to regard it with great liberality; and the remedy by ejectment is, at the present time, a most safe and expeditious method of trying possessory titles, unembarrassed by the difficulties attendant on real actions, and well adapted to the purposes of substantial justice.

16

CHAPTER II.

OF WHAT THINGS AN EJECTMENT WILL LIE, AND HOW THEY ARE TO BE DESCRIBED.

By the common law, an ejectment will not lie for any thing, whereon an entry cannot be made, or of which the sheriff cannot deliver possession, [1] or, in other words, it is only maintainable for corporeal hereditaments. Thus, an ejectment will not lie for a rent, an advowson, a common in gross, or pur cause de vicinage, or any other thing which passes only by grant. Tithes, indeed, though an incorporeal inheritance, may be recovered by this action, but the right of maintaining an ejectment for them, does not arise from the common law, but is given by the provisions of the statute 32 Hen. VIII. c. 7.

It was formerly holden that an ejectment did not lie for a chapel, though a corporeal hereditament, because it was res sacra, and, therefore, not demisable; but this doctrinc is now exploded, though, in point of form, a chapel should still be demanded as a messuage. (r)

(r) Harpur's case, 11 Co. 25,

(b). Thyn v. Thyn, Styles, 101. Doc. Plac. 291.

[1] The general rule is, that an action of Ejectment will lie for any thing attached to the soil, of which the Sheriff can deliver possession.— Jackson ex. dem. Saxton vs. May, 16 John's. Rep. 184.

Wherever a right of entry exists, and the interest is tangible, so that possession of it can be delivered, an Ejectment will lie for it. Jackson ex, dem. Loux. & Al. vs. Buel. 9 John's. Rep. 293.

If the owner of land allows another to erect buildings upon it, under a contract that when the buildings are completed, he will either pay for them or convey the land at his election, Ejectment will lie upon ouster of the builder before such election is made. And if a creditor of him who owns the fee levy an execution on the land and do not include the buildings in the appraisement, Ejectment will lie by the creditor of the builder, who has levied an execution on any section of the buildings.— King vs. Catlin, 1 Tyler's Rep. 355.

Ejectment will only lie for things whereof possession may be delivered by the sheriff. Black vs. Hepburne & Al. 2 Yeates' Rep. 331.

A church may be also recovered in an ejectment when so de[17] manded;(s) and it is *in one case said in argument, that after collation, ejectment will lie for a prebendal stall.(t)

A common, appendant or appurtenant, may be recovered in an ejectment, brought for the lands to which it is appendant or appurtenant, provided such right of common be mentioned in the description of the premises; because, he who has possession of the land, has also possession of the comm.on, and the sheriff, by giving possession of the one, executes the writ as to the other. But it may be prudent to state in the description, that the common so claimed is a common appendant or appurtenant, although it has been held after verdict, that an ejectment for lands, and also for "common of pasture," generally is sufficient. (u)

An ejectment will also lie for a boilary of salt, although by the grant of a boilary of salt, the grantee is only entitled to a certain proportion of the number of buckets of salt water drawn out of a particular salt water well; for by the grant of a boilary of salt, the soil shall pass, inasmuch as it is the whole profit of the soil. (v)

Upon the same principle an ejectment may be maintained for a coal mine; for it is not to be considered as a bare profit apprender, but as comprehending the ground or soil itself, which may be delivered in execution; and though a man may have a right to the mine without any title to the soil, yet the mine being fixed in a certain place, the sheriff has a thing certain before him, of which he can deliver possession. (w)

[* 18]

*In the old cases it is holden, that an ejectment will not lie for a fishery, because it is only a profit apprender ;(x) but it is said by Ashhurst, J., in the case of The King v. the Inhabitants of Old Arlesford, (y) "there is no doubt but that a fishery is a tenement; trespass will lie for an injury to it, and it may be recovered in ejectment.”

But an ejectment will not lie for a water-course, or rivulet, though its

(s) Hillingsworth v. Brewster, Salk. 256. (t) The King v. The Bishop of London, 1 Wils. 1. 14

(u) Baker v. Roe, Cas. Temp Hard. 127. Newman v. Holdmyfast, Stran. 54

(v) Smith v. Barrett, Sid. 161, S. C, 1 Lev. 114. Co. Litt. 4, (b)

(w) Comyn v. Kineto, Cro. Jac. 150.-Comyn v. Wheatly, Nov, 121.

(x) Molineaux v. Molineaux, Cro. Jac. 144. Herbert v. Laughlyn, Cro. Car. 492.-Waddyv. Newton, 8 Mod, 275-277.

(y) 1 T. R. 358.