In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs as are said to be of the same nature. Chapter XI. OF DISPOSSESSION, OR OUSTER OF CHATTELS REAL. 198-208. Having in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, I next consider injuries by ouster of chattels real; that is by amoving the possession of the tenant from an estate by statute-merchant, statute staple, recognizance in the nature of it, or elegit; or from an estate for years. Ouster From Estate by Statute, Etc. I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold, viz., by assize of novel disseisin. Ouster From Estate for Years. II. As for ouster, or amotion of possession, from an estate for years: this happens only by a like kind of disseisin, ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remedies, according to the circumstances and situation of the wrong-doer: the writ of ejectione firmae; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrong-doer and has committed the injury complained of; and the writ of quare ejecit infra terminum, which lies not against the wrong-doer or ejector himself, but his fcoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong. Ejectment. A writ then of ejectione firmae, or action of trespass in ejectment, lieth where lands or tenements are let for a term of years; and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his term. In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting him. And by this writ the plaintiff shall recover back his term, or the remainder of it with damages. Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. The remedy by ejectment is in its original an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into a method of trying titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offense, called in our law maintenance, to convey a title to another, when the grantor is not in possession of the land. When therefore a person, who hath right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as by law he may) a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, seals and delivers a lease for years to some third person or lessee: and having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him, or till some other person (either by accident or by agreement beforehand) comes upon the land, and turns him out or ejects him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. But where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ejectment to recover land against a casual ejector, without notice given to the tenant in possession (if any there be), and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defense, make out four points before the court; viz., title, lease, entry, and ouster. First, he must show a good title in his lessor, which brings the matter of right entirely before the court; then that the lessor, being seised or possessed by virtue of such title, did make him the lease for the present term; thirdly, that he, the lessee or plaintiff, did enter, or take possession in consequence of such lease; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages; and shall, in consequence, have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term. As much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a new and more easy method of trying titles by writ of ejectment, where there is any actual tenant or occupier of the premises in dispute, was invented somewhat more than a century ago. This new method entirely depends upon a string of legal fictions: no actual lease is made, no actual entry by the plaintiff, no actual ouster by the defendant; but all are merely ideal, for the sole purpose of trying the title. To this end, in the proceedings a lease for a term of years is stated to have been made, by him who claims title, to the plaintiff who brings the action, as by John Rogers to Richard Smith, which plaintiff ought to be some real person, and not merely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practiced; it is also stated that Smith the lessee entered; and that the defendant William Stiles, who is called the casual ejector, ousted him; for which ouster he brings this action. As soon as this action is brought, and the complaint fully stated in the declaration, Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Richard Smith, and transmitting him a copy of the declaration; withal assuring him that he, Stiles, the defendant, has no title at all to the premises, and shall make no defense; and therefore advising the tenant to appear in court and defend his own title: otherwise he, the casual ejector, will suffer judgment to be had against him; and thereby the actual tenant, Saunders, will inevitably be turned out of possession. On receipt of this friendly caution, if the tenant in possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no right at all; and upon judgment being had against Stiles, the casual ejector, Saunders, the real tenant, will be turned out of possession by the sheriff. But, if the tenant in possession applies to be made a defendant, it is allowed him upon this condition: that he enter into a rule of court to confess, at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action: viz., the lease of Rogers, the lessor, the entry of Smith the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must of course be nonsuited for want of evidence; but by such stipulated confession of lease, entry, and ouster, the trial will now stand upon the merits of the title only. This done, the declaration is altered by inserting the name of George Saunders instead of William Stiles, and the cause goes down to trial under the name of Smith (the plaintiff), upon the demise of Rogers (the lessor) against Saunders, the new defendant. And therein the lessor of the plaintiff is bound to make out a clear title; otherwise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted. But if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go for Richard Smith the nominal plaintiff, who by this trial has proved the right of John Rogers, his supposed lessor. 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 nonsuited, 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. The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate, amounting commonly to one shilling, or some other trivial sum. In order therefore to complete the remedy when the possession has long been detained from him that hath the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in possession has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lessor, against the tenant in possession, whether he be made party to the ejectment or suffers judgment to go by default. In this case the judgment in ejectment is conclusive evidence against the defendant for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff: but if the plaintiff sues for any antecedent profits the defendant may make a new defense. Such is the modern way of obliquely bringing in question the title to lands and tenements, in order to try it in this collateral manner; a method which is now universally adopted in almost every case. But a writ of ejectment is not an adequate means to try the title of all estates; for on those things whereon an entry cannot in fact be made, no entry shall be supposed by any fiction of the par ties. Therefore an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditament. Writ of Quare Ejecit Infra Terminum. 2. The writ of quare ejecit infra terminum lieth, by the ancient law, where the wrong-doer or ejector is not himself in possession of the lands, but another who claims under him. 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. Chapter XII. OF TRESPASS. Trespass-Its Largest Meaning. The second species of real injuries, or wrongs that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass in its largest and most extensive sense, signifies any transgression or offense 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. Its Limited Sense. 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. The law of England, justly considering that much inconvenience may happen to the owner before he has an opportunity to forbid the entry, 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 offense was willful or inadvertent, and by estimating the value of actual damage sustained. For every unwarrantable entry on another's soil the law entitles a trespass by breaking his close: the words of the writ of trespass commanding the defendant to show cause quare clausum querentis fregit. For every man's land is, in the eye of the law, enclosed and set apart from his neighbor's. 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. One must have a property (either absolute or temporary) in |