Page:Halsbury Laws of England v1 1907.pdf/257

 ——

.

Forms of Action.

Part VII.

35

Sect. i. (at latest) the action had become a mixed action, so that the tenant Old Forms recovered his term. Ejectment " developed subsequently into a mode of trying the of Action, The person claiming a right of entry came on to the Ejectment title to land. land and sealed a lease to a tenant, who brought an action against as a mode of the person in possession, or in later times against a fictitious trying title, After a time the practice of person, called the casual ejector (7-). actually sealing a lease on the land fell into disuse, and a wholly Lease, fictitious procedure was invented by Chief Justice Eolle. entry, and ouster were imagined, and a copy of the declaration in an action based on a non-existent original writ was served on the person in possession, bearing a notice signed by his " loving friend Eichard Roe " (the casual ejector), stating that he was being sued by one " John Doe "in an action of ejectment, and advising the person in possession to have himself made defendant by rule of " This form of " ejectment Court in the place of his " friend." gradually usurped the place of all the other real and mixed actions and by the beginning for the recovery of corporeal hereditaments of the eighteenth century such other actions, with the exception of quare impedit and de dote unde nihil hahet, had become almost entirely obsolete (s) At common law, " ejectment " lay only in respect of things "in render," or, in other words, of corporeal hereditaments; thus it would not lie in respect of an advowson, a right of common in but the right to maintain an action gross, or any profit a prendre in this form in respect of tithes was given by statute {t). It was necessary for the plaintiff to recover by the strength of his own title, and not by the weakness of the defendant's (a). Before the Real Property Limitation Act, 1833 (Z)), it was necessary that the plaintiff should have a right of entry into the land, but that Act, which preserved this form of action, abolished the distinction between a right of entry and a right of action to recover land.



Sub-Sect.

3.

Personal Actions.

52. Personal actions may for present purposes be divided into Division of actions arising out of contract {ex contractu) and actions arising ^^[[^^g^^ out of torts (ex delicto). ejedione Jirmoe,

but in 1467 Fairfax,

J.,

held that "

si

home port ejectione firmae

plaintiff recouvera son terme qui est arrere, sihien come in quare ejecit infra terminum et, si mil soit arrere, donques tout en damages " (Y. B. 7 Edw. 4, le



tit. " Quare ejecit infra terminum," 6). Littleton's Practical Register, 673. [s] In Goodtitle d. Chester v. Alker (1757), 1 Burr. 133, Lord Manspield described an action of ejectment as "an ingenious fiction for the trial of titles to the possession of lands and, in form, it appears as a trick between two to dispossess a third by a sham suit and judgment, an artifice which would be highly criminal, unless the Court converted it into a fair trial between the proper parties " ; see Fairclaim d. Fowler v. Shamtitle {11 62), 3 Burr. 1294.

6



Bro. Abr.

ir)

1



An

entertaining account of the proceedings in such an action will be found in

Samuel Warren's " Ten Thousand a Year." (t) 32 Hen. 8, c. 7. (a) BoeY. Harveij (1769), 4 Burr. 2484; Doe 2

Term Eep. (6)

3

&

749. 4 Will. 4,

c.

d.

Crisp v.

Barler (1788),

27.

D

2