reafon of, thofe parts of the law which are now more generally in ufe. For, without contemplating the whole fabric together, it is impoffible to form any clear idea of the meaning and connection of those disjointed parts, which fill form a confiderable branch of the modern law; fuch as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any confiderable part of that, which I have felected in this chapter from among the venerable monuments of our ancestors, fo abfo[197] lutely antiquated as to be out of force, though the whole is certainly out of ufe: there being but a very few inftances for more than a century paft of profecuting any real action for land by writ of entry, affife, formedon, writ of right, or otherwife. The forms are indeed preferved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pafs them are feldom capable to align the reafon. But the title of lands is now usually tried in actions of ejectment or trefpafs; of which in the following chapters.

CHAPTER THE ELEVENTH.

OF DISPOSSESSION, OR OUSTER,

OF CHATTELS REAL.

HA

AVING in the preceding chapter confidered with fome attention the feveral species of injury by difpoffellion or ouster of the freehold, together with the regular and well-connected fcheme of remedies by actions real, which are given to the fubject by the common law, either to recover the poffeflion only, or elfe to recover at once the pofession, and also to establish the right of property; the method which I there marked out leads me next to confider injuries by oufter of chattels real; that is, by amoving the poffeffion of the tenant from an eftate by ftatute-merchant, ftatute-ftaple, recognizance in the nature of it, or elegit; or from an eftate for years.

I. OUSTER, or amotion of poffeffion, from estates held by ftatute, recognizance, or elegit, is only liable to happen by a fpecies of diffeifin, or turning out of the legal proprietor, before his eftate is determined by railing the fum for which it is given him in pledge. And for fuch oufter, though the estate be merely a chattel intereft, the owner fhall have the fame remedy as for an injury to a freehold; viz. by affife of novel diffeifin. But this depends upon the several statutes, which

F. N. B. 178.

create

create these refpective interefts, and which exprefsly provide and allow this remedy in cafe of difpoffeffion. Upon which account it is that fir Edward Coke obferves, that these tenants are faid to hold their eftates ut liberum tenementum, until their debts be paid: because by the ftatutes they shall have an affife, as tenants of the freehold fhall have; and in that respect they have the fimilitude of a freehold ".

II. As for oufter, or amotion of poffeffion, from an estate for years; this happens only by a like kind of diffeifin, 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 fituation of the wrongdoer: the writ of ejectione firmae; which lies against any one, the leffor, reverfioner, remainder-man, or any ftranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum; which lies not against the wrongdoer or ejector himself, but his feoffee or other person claiming under him. These are mixed actions, fomewhat between real and perfonal; for therein are two things recovered, as well reftitution of the term of years, as damages for the oufter or wrong.

1. A WRIT then of ejectione firmae, or action of trespass in ejectment, lieth where lands or tenements are left for a term of years and afterwards the leffor, reverfioner, remainder-man, or any stranger, doth ejea or out the lefee of his term. In this cafe he shall have his writ of ejection to call the defendant to answer for entering on the lands fo demifed to the plaintiff for a term that is not yet expired, and ejecting him f. And by this writ the plaintiff fhall recover back his term, or the remainder of it, with damages.

[200] SINCE the difufe of real actions, this mixed proceeding is become the common method of trying the title to lands or

d See book II. ch. 10.

F. N. B. 220.

f See appendix N°II. § 1.

tenements.

tenements. It may not therefore be improper to delineate, with fome degree of minuteness, it's hiftory, the manner of it's procefs, and the principles whereon it is grounded.

We have before feen, that the writ of covenant, for breach of the contract contained in the leafe for years, was antiently the only specific remedy for recovering against the leffor a term from which he had ejected his leffee, together with damages for the oufter. But if the leffee was ejected by a ftranger, claiming under a title fuperior to that of the leffor, or by a grantee of the reverfion, (who might at any time by a common recovery have deftroyed the term',) though the leffee might still maintain an action of covenant against the leffor, for non-performance of his contract or leafe, yet he could not by any means recover the term itself. If the outer was committed by a mere ftranger, without any title to the land, the leffor might indeed by a real action recover poffeffion of the freehold, but the leffee had no other remedy against the ejector but in damages, by a writ of ejectione firmae, for the trefpaís committed in ejecting him from his farm *. But afterwards, when the courts of equity began to oblige the ejector to make a specific reftitution of the land to the party immediately injured, the courts of law alfo adopted the fame method of doing complete juftice; and, in the profecution of a writ of ejectment, introduced a fpecies of remedy not warranted by the original writ, nor prayed by the declaration, (which are calculated for damages merely, and are filent as to any reftitution,) viz. a judgment to recover the term, and a writ of poffeffion thereupon'. This method feems to have been set

See pag. 157.

h F. N.B. 145.

i See book II. ch. 9.

* P. 6 Ric 11. Ejectione firmae n'est que un action de trefpafs en fon nature, et le plaintiff ne recovera fon terme que eft a venir, nient plus que en trefpafs home recovera damages pur trespass nient fait, mes a fefer; mes il convient a fuer par action de covenant al comen law a recoverer fun terme: quod tota curia conceffit. Et per 13

Belknap, la comen ley eft, lou beme eft oufte de fon terme par eftranger, il avera ejectione firmae verfus cefty que luy oufte; et fil fit cufte par fon leffor, briefe de covenant; et fi par leffée ou grantee de reverfion briefe de covenant verfus fon leffor, et countera efpecial count, &c. (Fitz, abr. t. eject. firm. 2.) See Bract. 1. 4. tr.1. c. 36.

See append. No II. § 4. prope fin.

tled

tled as early as the reign of Edward IV; though it hath been faid to have first begun under Henry VII, because it probably was then first applied to it's present principal use, that of trying the title to the land.

THE better to apprehend the contrivance, whereby this end is effected, we must recollect that the remedy by eject. ment is in it's original an action brought by one who hath a leafe for years, to repair the injury done him by difpoffeffion. In order therefore to convert it into a method of trying titles to the freehold, it is first neceffary that the claimant do take poffeffion of the lands, to empower him to constitute a leffee for years, that may be capable of receiving this injury of difpoffeffion. For it would be an offence, called in our law maintenance, (of which in the next book,) to convey a title to another, when the grantor is not in poffeffion of the land: and indeed it was doubted at firft, whether this occafional poffeffion, taken merely for the purpose of conveying the title, excused the leffor from the legal guilt of maintenance. When therefore a perfon, who hath right of entry into lands, determines to acquire that poffeffion, which is wrongfully with. held by the prefent tenant, he makes (as by law he may) a formal entry on the premises; and being fo in the poffeffion of the foil, he there, upon the land, feals and delivers a leafe for years to fome third perfon or leffee: and, having thus given him entry, leaves him in poffeffion of the premifes. This leffee is to stay upon the land, till the prior tenant, or he who had the previous poffeffion, enters thereon afresh and oufts him; or till fome other perfon (either by accident or by agreement beforehand) comes upon the land, and turns him out or ejects him. For this injury the leffee is entitled to his action of ejectment against the tenant, or this cafual ejector, which ever it was that oufted him, to recover back his term and damages. But where this action is brought against such a cafual ejector as is before mentioned, and not against the