whichever it was that ousted him, to recover back his term and damages. But where this action was brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court would not suffer the tenant to lose his possession without an opportunity to defend it. Wherefore it was a standing rule, that no plaintiff should proceed in ejectment to recover lands against a casual ejector, without notice given to the tenant in possession, if any there were, and making him a defendant if he pleased. And, in order to maintain the action, the plaintiff must, in case of any defence, have made out four points before the court, viz., title, lease, entry, and ouster. First, he must have shown a good title in his lessor, which brought the matter of right entirely before the court; then, that the lessor, being possessed by virtue of such title, had made him the lease for the term; thirdly, that he, the lessee or plaintiff, had entered or taken possession under such lease; and then, lastly, that the defendant had ousted or ejected him. Whereupon he had judgment to recover his term and damages, and, in consequence, had a writ of possession, which the sheriff executed by delivering him the peaceable possession of his term.

This was the regular method of bringing an action of ejectment, in which the title of the lessor came collaterally and incidentally before the court, in order to show the injury done to the lessee by this ouster. But as much trouble and formality were found to attend the actual making of the lease, entry, and ouster, a more easy method of trying titles was invented, which depended entirely upon a string of legal fictions; no actual lease was made, no actual entry by the plaintiff, no actual ouster by the defendant, but all were merely ideal, for the sole purpose of trying the title. To this end in the proceedings a lease for a term of years was stated to have been made, by him who claimed title, to the plaintiff who brought the action, as by John Rogers to John Doe; it was also stated that Doe, the lessee, entered, and that the defendant, Richard Roe, who was called the casual ejector, ousted him: for which ouster he brought this action. As soon as this action was brought, Roe, 'the casual ejector or defendant, sent a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by John Doe; assuring him that he, Roe, the defendant, had no title at all to the premises, and should make no defence;

and, therefore, advising the tenant to appear in court and defend his own title, otherwise he, the casual ejector, would suffer judgment to be had against him, and thereby the actual tenant, Saunders, would inevitably be turned out of possession. On receipt of this friendly caution, if the tenant in possession did not within a limited time apply to the court to be admitted a defendant in the stead of Roe, he was supposed to have no right at all, and, upon judgment being had against Roe, the casual ejector, Saunders, the real tenant, was turned out of possession by the sheriff.

But if the tenant in possession applied to be made a defendant, it was allowed him upon this condition: that he entered into a rule of court to confess, at the trial, three of the four requisites for the maintenance of the action, viz., the lease of Rogers the lessor, the entry of Doe the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Roe: which requisites being wholly fictitious, should the defendant put the plaintiff to prove them, he must, of course, be nonsuited for want of evidence. But by such stipulated confession of lease, entry, and ouster, the trial now stood upon the merits of the title only. This done, the name of George Saunders was substituted for Richard Roe, and the cause went down to trial under the name of Doe, the plaintiff, on the demise of Rogers the lessor, against Saunders, the new defendant. And therein the lessor of the plaintiff was bound to make out a clear title, otherwise his fictitious lessee could not obtain judgment to have possession of the land for the term supposed to be granted. But if the lessor made out his title in a satisfactory manner, then judgment and a writ of possession were awarded to John Doe, the nominal plaintiff, who by this trial had proved the right of John Rogers, his supposed lessor.

But if the new defendant, Saunders, after entering into the common rule, failed to appear at the trial, and to confess lease, entry, and ouster, the plaintiff, Doe, must, indeed, have been there nonsuited, for want of proving those requisites; but judgment would in the end be entered against the casual ejector Roe; for the condition on which Saunders was admitted a defendant had been broken, and therefore the plaintiff was put again in the same situation as if he never had appeared at all; the consequence of which was, that judgment would be entered

for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would turn out Saunders and deliver possession to John Doe. The same process, therefore, as would have been had, provided no conditional rule had been ever made, must have been pursued as soon as the condition was broken.

The method of recovering real property was attended however with certain objections, which, notwithstanding the supervision of the courts, occasionally gave rise to well-founded complaints. Accordingly, when the procedure of the superior courts of common law was reconstructed in 1852, advantage was taken of the opportunity; a new action for the recovery of land was created, and the old action of ejectment came to be numbered amɔng the relics of the past.

Both the old action and that substituted for it in 1852, were valuable in one respect, in that no question could be raised except that of title; for it was justly considered that if the plaintiff had a right to the possession of the land claimed, he was entitled to recover, whether the person in possession or who defended the action had ousted him or not. But there was this disadvantage, that it was the right of the claimant at law which could alone be put in issue. If the defendant, or tenant in possession, had an equitable right to that possession, this constituted no defence. He must have applied to the Court of Chancery to restrain the proceedings at law, and to protect his equitable interest against a legal claimant. When therefore the rules of equity were made a part of our law, it became necessary to provide a procedure by which this could be effected in trying the right to real property; the common law action of ejectment accordingly ceased to exist; and claims to possession of real property are now asserted by the one universal remedy of an action.

The damages recovered in the old action of ejectment, though originally its only intent, were, when title was the only question, very small; amounting commonly to a shilling. In order therefore to complete the remedy, when the possession has been long detained from him that had the right to it, a second action lay to recover the mesne profits which the tenant in possession had wrongfully received. The judgment in the first action was herein conclusive evidence against the defendant, for all profits

which had accrued since the date alleged as the period at which the plaintiff's right accrued to him; for if he sued for any antecedent profits, the defendant might make a new defence. Thus he might plead the Statute of Limitations, and by that means protect himself from the payment of all mesne profits, except those which had accrued within the previous six years. The claim for mesne profits may now, however, be combined with the claim for possession, and thus be included in the same action.

Such is the modern way of trying either the legal or equitable right to lands and tenements. It is founded on the same principle as the ancient writs of assize, being calculated to try the mere possessory title to an estate; possession for a prescribed period, as we have already seen, now constituting title.

Ejectment was not an adequate means to try the title of all estates; for it lay only for the recovery of that species of property, on which an entry could be made, and an ouster effected. On those things, whereon an entry could not in fact be made, no entry could be supposed; therefore ejectment did not lie of an advowson, a common, or any incorporeal hereditament. Nor did it lie in such cases, where the entry of him that had right was taken away by twenty years' dispossession, or otherwise. And this period of dispossession may now accordingly be set up by the defendent as an answer to the claimant, and a good title against all the world. It is, however, subject to qualification in the case of persons under disability; for if at the time at which the right of any person first accrued, such person was an infant, under coverture, of unsound mind, or absent beyond seas, he, or the person claiming through him, may bring an action, within ten years next after such disability shall have ceased. But no action can be brought when forty years have expired after the right has accrued, although the person may have remained under disability during the whole period, or although the above mentioned term of ten years shall not have expired.

This action has, it may be added, been rendered a very expeditious remedy to landlords whose tenants are in arrear, or who hold over after their term has expired or been determined. And a recovery therein is final and conclusive, both

in law and equity, unless the rent and all costs be paid or tendered within six calendar months afterwards. A landlord, also, on serving a writ on a tenant holding over after his term has expired or been determined, may give him notice that he will be required to give bail, if ordered so to do by the court or a judge, conditioned to pay the costs and damages to be recovered in the action. And, if bail is thereafter ordered to be given, and the tenant fails to do so, the claimant obtains immediate judgment for recovery of possession and for his costs.

It is in cases between landlord and tenant that the claimant after proving his right to recover, usually gives evidence of the mesne profits, so that judgment may be given both as to the title and mesne profits; in such cases, of course, a second action for mesne profits is unnecessary. Besides these remedies a landlord may, in cases where the rent or value of the premises does not exceed 507., and no fine has been paid, proceed summarily in the county court. If the rent does not exceed 207., and no fine has been paid, he may proceed before justices in petty sessions.

CHAPTER VIII.

OF INJURIES TO REAL PROPERTY.

II. THE second species of wrongs that affect real property is that of trespass. Trespass, in its most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live; whether it relates to a man's person, or his property. Therefore beating another is a trespass; taking or detaining a man's goods are trespasses; so also non-performance of promises or undertakings is technically a trespass: and, in general, any misfeasance or act of one man whereby another is injuriously treated and damnified, is a trespass in its largest sense.

But in the limited sense, in which it is at present to be considered, it signifies an entry on another man's ground without authority, and doing some damage, however inconsiderable, which the law entitles a trespass by breaking his close. For every man's land is in the eye of the law enclosed and set apart from