Nature of this Right-Who shall be considered as ca- pable of exercising it-Where the Transitus may be said to be continuing-Where deter- I. Definition Of the Remedies in the Common Law Courts for the Recovery of Tithes, or the II. Debt on Stat. 2 & 3 Edw. 6. c. 13. for not setting out Tithes-Of the Provisions of the Statute, and the Construction thereof Of the Per- sons to whom Tithes are due-Of the Persons by whom and against whom an Action on the I. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may CHA P. XLI. 1. Of the Nature of the Action of Ejectment. II. By whom an Ejectment may be brought. III. For what Things an Ejectment will lie. IV. In what Cases an Entry must be made on the Land before Ejectment brought. V. In what Cases a Notice to quit must be given before Ejectment brought-Requisites of No tice-Waver of Notice-Where Notice is not required. VI. Of the Mode of Proceeding in Ejectment, and herein of the Declaration., VII. Of the Service of Declaration. VIII. Of the subsequent Proceedings - Judgment against casual Ejector-Appearance of Defendant-Consent Rule-Stat. 11 G. 2. c. 19. s. 13. enabling Landlord to defend. IX. Of the Proceedings in Ejectment, directed by Stat. 4 G. 2. c. 28. s. 2. in order to obviate the Difficulties attending Re-entries at Common Law, for Non-Payment of Rent ArrearOf the Proceedings where the Possession is vacant. X. Of the Pleadings and Defence. XI. Evidence. XII. Verdict-Judgment-Execution, XIII. Writ of Error. XIV. In what Cases a Court of Equity will restrain the Party from bringing further Ejectments, by granting a perpetual Injunction. XV. Of the Action of Trespass for Mesne Profits. I. Of the Nature of the Action of Ejectment. AN ejectment is a possessory action (1), wherein the title to lands and tenements may be tried, and the possession recovered 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, 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 firme was introduced (2). But in the ejectio firma, damages only could be recovered until some time between the 6th Rich. 2. and 7th Edw. 4. about which time it appears, from the year book of 7 Edw. 4. fol. 6. that it had been resolved by the judges, that the term, as well as damages, might be recovered (3). The action of ejectment now in use is formed on the plan (1) This action is usually termed a mixed action; improperly as it should seem, for the language of the judgment is, " quod querens recuperet terminum ac damna;" and the writ of execution is quod habere facias possessionem." See Matthew v. Hassel, Cro. Eliz. 144. and Harebottle v. Placock, Cro. Jac. 21. 66 (2) 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. (3) I am not aware, however, of any judgment for the recovery of the term prior to that in East. T. 14 H. 7. Rot. 303. a copy of the record of which will be found in Rastal's Entries, fol. 252. b. 253. a. ed. 1670. of the ejectio firma, in its improved state, after it had been decided that the term might be recovered. In the action of ejectment, as was before observed, not only the title to the lands in question may be tried, but the possession also may be recovered, which circumstance renders it the most eligible mode of proceeding; inasmuch as in trespass, although the right may be ascertained, damages alone can be recovered. In the action of ejectment, indeed, the damages which are given are merely nominal: but the law has provided another remedy for the injury sustained by the party claiming title, 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. xv. Of the Requisites to support an Ejectment.-In order to maintain ejectment, the party at whose suit it is brought, must have been in possession, or at least clothed with the right of possession, at the time of the actual or supposed ouster. Hence, this action is termed a possessory action. The party, who has the legal estate in the lands in question, must prevail: hence, a party who claims under an elegit", subsequent to a lease granted to a tenant in possession, cannot recover; although he give notice to the tenant, that he does not intend to disturb the possession, and only means to get into the receipt of the rents and profits of the estate. In the case of Lade v. Holford, E. 3 Geo. 3. B. R. Bull. N. P. 110. Lord Mansfield, C. J, declared, "that he and many of the judges had resolved never to suffer a plaintiff, in ejectment, to be non-suited by a term standing out in his own trustee, or a satisfied term set up by a mortgagor against a mortgagce; but that they would direct the jury to presume it surrendered." From this doctrine a conclusion has been drawn, which the case by no means warrants, viz. that a plaintiff in ejectment may recover on an equitable title.The true meaning of the resolution delivered by Lord Mansfield is, that where trustees ought to convey to the beneficial owner, it shall be left to the jury to presume that they have conveyed accordingly: or where the beneficial occupation of an estate by the possessor (under an equitable title) induces a probability, that there has been a conveyance of the legal estate to the person who is equitably entitled to it, a jury may be directed to presume a conveyance of the legal estate. a Keilw. 130. a. b Doe d. Da Costa v. Wharton, s T. R. 2. e Per Kenyon, C. J. 7 T. R. 3. and ST. R. 122. |