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Writ of Possession. 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 to him the undisturbed and peaceable possession of his term.
Later Mode of Action. 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.
Damages. The damages recovered in these actions are now usually inadequate, being a shilling or nominal snm.
Action for Mesne Profits. In order to complete the remedy, when the possession has been long detained, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits, which the tenant in possession has wrongfully received. This 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 a party to the ejectment, or suffers judgment 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 he sues for antecedent profits, the defendant may make a new defence.
Advantages of this Form of Action, Such is the modern way of bringing obliquely in question the title to lands and tenements, in order to try it in this collateral manner, a method now universally adopted. It is adapted to try the mere possessory title to an estate, and has succedeed real actions, as being infinitely more convenient, because the form of the proceeding being fictitious, it is in the power of the court to direct the application of that fiction, so as to prevent fraud. The parties can thus go to trial on the merits, without being entangled in the nicety of pleading on either side.
Not Always Adequate. The 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 parties. It will not lie of an advowson, a rent, a common or other incorporeal hereditament, except for certain tithes, nor will it lie, where the entry of him that has right is taken away by descent, discontinuance, twenty years dispossession or otherwise.
1 The procedure act of 1852 changed all this, and the former action of ejectment has given way to the new procedure. In the United States, ejectment is usually commenced, after writ issued, by filing a declaration or complaint, setting forth, that the plaintiff is entitled to the premises, describing them, and that defendant unlawfully withholds the same. A copy is served upon the defendant, who pleads or answers, or judgment by default is taken. Sometimes parties not in possession may be added. Generally a defeated party may have a second trial. Damages may be given in the same suit. — Cooley.
Recovery of Possession for Non-payment of Rent. This action of ejectment is however rendered a very easy and expeditious remedy for landlords, whose tenants are in arrears, by statute, which enacts, that every landlord, who has by his lease, a right of re-entry in case of non-payment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same upon some notorious part of his premises, which shall be valid, without any formal re-entry or previous demand of rent. A recovery in such ejectment shall be final, both in law and equity, unless the rent and all costs be paid or tendered within six months.
As to Real Property. This injury may be offered to a man's real property, without any amotion from it.
Defined and Distinguished. Trespass, in its largest sense, signifies any offence against the law, whether it relates to a man's person or to his property. Beating another is trespass, for which an action vi et armis will lie. Taking or detaining a man's goods is trespass, for which an action vi et armis, or on the case, or of trover and conversion will lie; so also non-performance of promises is a trespass, on which an action on the case or assumpsit is grounded, and in general, the misfeasance or act of one man, whereby another is injuriously treated or damnified, is a trespass. Where such act is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie, but if the injury is only consequential, a special action of trespass on the case may be brought.
Unwarrantable Entry. In the limited sense, we are at present to consider it, it signifies no more than an entry on another man's land without lawful authority, and doing some damage, however inconsiderable, to his real property. The right of meum and tuum, or property in lands, being once established, is exclusive; that is that the owner may retain to himself the sole use and occupation of his soil. Every entry thereon, without the owner's leave, is a trespass. The Roman laws made an express prohibition necessary to constitute this injury, but the law of England does not wait for this, but treats every entry without the owner's permission on another's land as an injury, for which an action of trespass will lie, but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the damage sustained.
Quare Clausum Fregit. For such unwarrantable entry, the writ commands 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. Every such entry carries with it some damages, even if no special loss can be assigned. The writ specifies one general damage, the treading down and bruising the herbage.
Plaintiff's Requisites. One must have a property, either absolute or temporary, and actual possession by entry, to be able to maintain an action of trespass, or at least, it is requisite that he have a lease and possession of the herbage of the land. An heir before entry cannot have this action against an abator, though a disseisee may have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land ; but he cannot have it for any act done after the disseisin, until he has gained possession by a re-entry, when he may maintain it for the intermediate damage done; for after his re-entry, the law supposes the freehold to have all along continued in him.
Trespassers. But now by statute, if a guardian or trustee of an infant, a husband seised jure uxoris, or a person having an estate determinable upon a life or lives, shall after the determination of their respective interests, hold over and continue in possession of the lands, without the consent of the person entitled thereto, they are adjudged to be trespassers, and any reversioner or remainder inan, expectant on any life estate, may once in every year, by motion in the court of chancery, procure the cestui que vie to be produced by the tenant to the land, or may enter thereon in case of his refusal or wilful neglect.
Wrongful Holding Over. In case, after the determination of any term of life or years, any one shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, where he has demanded, and given written notice to the tenant to deliver possession, or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry such notice into execution.
Cattle Trespassing. A man is answerable not only for his own trespass, but that of his cattle also, for if by his negligent keeping, they stray upon the land of another, and much more if he permits or drives them on, and they tread down the herbage and spoil the grain or trees, this is a trespass, for which the owner must answer in damages. The party injured has a double remedy; by distraining the cattle thus damage feasant, or doing damage, till the owner shall render him satisfaction, or else by leaving him to the common remedy, by action.
Trespass vi et Armis, In either of these cases of trespass on another man's land, either by himself or by his cattle, the action is trespass vi et armis, for the law always couples the idea of force with that of intrusion upon the property of another. If the unwarranted trespass be proved, the jury should assess the damages.
Continuing Trespasses. In trespasses of a permanent nature, where the injury is continually renewed, as by cattle consuming herbage, the declaration may allege a continuing injury, and the plaintiff shall not be compelled to bring separate actions for every day's separate offence. But where the trespass is by one or several acts, each of which terminates in itself, and being once done, cannot be done again, it cannot be laid with a continuando, yet if there be repeated acts of trespass committed, as cutting down a number of trees, they may be laid to be done, not continually, but at divers days and times within a given period.
Justifiable Trespass. In some cases trespass is justifiable, or rather entry on another's land not accounted trespass; as if a man comes thither to demand or pay money, there payable, or to execute in a legal manner the process of the law. So a man
may enter an inn, without leave of the owner first specially asked. So a landlord may enter to distrain for rent, a commoner to attend his cattle, commoning on another's land, and a reversioner, to see if waste be committed.
Misbehavior of Intruder. But where a man misbehaves, or makes an ill use of the authority the law gives him, he shall be accounted a trespasser ab initio; as if one enters an inn, and will not depart in reasonable time, but tarries against the owner's wishes; this wrongful act shall have relation back even to the first entry, and make the whole a trespass.
Nonfeasance. A bare nonfeasance, as not paying for the wine he ordered, will not make him a trespasser, for this is only a breach of contract, for which an action of debt or assumpsit will lie.
Subsequent Irregularity. But by statute, no subsequent irregularity of the landlord shall make the first entry a trespass, but the party injured shall have a special action on the case, for the real specific injury sustained, unless tender of amends has been made.
Trespasser ab Initio. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night, or if the commoner, who comes to tend his cattle, cuts down a tree, the law adjudges that he entered for this unlawful purpose, and as the act is a trespass, he shall be esteemed a trespasser ab initio.
Defences. A man may also justify in an action of trespass, on account of the freehold, and that the right of entry is in himself; and this defence brings the title of the estate in question.
Trespass and Ejectment Distinguished, This is one way, since the disuse of real actions, to try the property of estates; though it is not so usual, as that of ejectment, because that, being now a mixed action, not only gives damages for ejection, but also possession of the land, whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered: nothing being recovered but damages for the wrong committed.
Trifling Suits. Limit as to Costs. To prevent trifling and vexatious actions of trespass, as well as other personal actions, it has been enacted, that where the jury, who try an action of trespass, give less damages than forty shillings, the plain