Chap. 11.] ACTION OF EcTMENT. 198 CHAPTER XI. OF DISPOSSESSION, OR OUSTER OF CHATTELS REAL. HAVING in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real, which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; the method which I there marked out leads me next to 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. 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 free- hold; viz., by assize of novel disseisin.(a) (1) But this depends upon the several statutes, which *create these respective interests,(b) and which r,199] expressly provide and allow this remedy in case of dispossession. Upon [* 9 which account it is that Sir Edward Coke observes,(c) that these tenants are said to hold their estates ut liberum tenementum, until their debts are paid: because by the statutes they shall have an assize, as tenants of the freehold shall have; and in that respect they have the similitude of a freehold.(d) 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 circum- stances and situation of the wrongdoer: the writ of ejectione firmce; which lies against any one, the lessor, reversioner, remainder-man, or any stranger 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, 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. 1. A writ then of ejectione flrmw, or action of trespass in ejectment,(2) 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.(e) 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 [*2001 common method of trying the title to lands or tenements. It may not J therefore be improper to delineate, with some degree of minuteness, its history, the manner of its process, and the principles whereon it is grounded. (a) F. N. B. 178. (b)Stat. Westm. 2. 13Edw. I, c. 18. Stat. de mercatoribus,27 Edw. iM, c.9. Stat. 28 Hen. VIII, c. 6, 9. (c)1 Inst. 48. (d) See book II, ch. 10. (e) F. N. B. 220. (f) See Appendix, No. II, § 1. (1) The assize of novel disseisin is now abolished, and ejectment is the present remedy. (2) [In general ejectment will lie to recover possession of any thing whereon an entry can be made, and whereof the sheriff can deliver possession. But an ejectment cannot be main- tained for things that lie merely in grant, not capable of being delivered in execution, as an advowson, common in gross: Cro. Jac. 146; a piscary: Id., Cro. Car. 492; 8 Mod. 277; 1 Brownl. 142; contra, per Ashurst, J. 1 T. R.361.] 200 ACTION OF EJECTMENT. [Book 1II. We have before seen, (g) that the writ of covenant, for breach of the contract contained in the lease for years, was anciently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior (h) to that of the lessor, or by a grantee of the reversion (who might at any time by a common recovery have destroyed the term),(i) though the lessee might still maintain an action of covenant against the lessor, for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione firmr, for the trespass committed in ejecting him from his farm. (ki) But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice; and, in the prosecution of a writ of ejectment, intro- duced a species of remedy not warranted by the original writ nor prayed by [*2nl] the declaration (which are *calculated for damages merely, and are silent *201],as to any restitution), viz.: a judgment to recover the term, and a writ of possession thereupon.(l) This method seems to have been settled as early as the reign of Edward IV ; (m) though it hath been said (n) to have first begun under Henry VII, because it probably was then first applied to its present principal use, that of trying the title to the land. (3) The better to apprehend the contrivance, whereby this end is effected, we must recollect that 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 d method of trying titles to the freehold, it was first necessary that the claimant do take possession of the lands, to em- power him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offence, called in our law mainte- nance (of which in the next book), to convey a title to another, when the grantor is not in possession of the land; and indeed it was doubted at first, whether this occasional possession, taken merely for the purpose of conveying the title, excused the lessor from the legal guilt of maintenance. (o) 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 prem- ises. 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 r*202] 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, which- ever 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 (g Seepage 157. (h) F. N. B. 145. (i) See book I, ch. 9. P. 6, ctc.IT Ejectionefirame n'est qus un aclion de trespassen son, nature, et le plaintiff ne recovera son terme gue est a venir, nient plus que en trespass homs recovera damages pur trespass nient fait, saes afeser; saes it convient a suer par action de covenant al comen ley a recoverer son terme: quod tota curia concesit. Et per Belknap, la comen ley est, lou home est ousts de son terme par estranger,it avera ejections firme versus cesty que luy ouste; et sit soit ousts par son lessor, briefe de covenant; et si par lessee on grantee de reversion briefe de covenant versus son lessor, et counteraespecial count, &c. (Fitz. Abr. t. eject. firm. 2.) See Bract. 1. 4, tr. 1, c. 36. (1) See Append. No. IT, § 4, propefin.. (m) 7 Edw. IV, 6. Per Fairfax; 8i home port ejectione firm, se plaintiff recovera son terme qui est arere, i bien come in quars ejecit infra termlnum; et, A nul sot arrere, donques tout in damages. (Bro. Abr. t. uare ejecit infra terminum, 6.) (n) V.