CHAP. I.

THIS Action of Ejectione Firme includes in it self an Action of Trespass, as appears by the Beginning, Body and Conclusion of the Writ; for the Writ begins thus: Si A. fecerit te se∣curum de clamore suo prosequendo tunc pone, &c. and so begins the Writ of Trespass. The Body of the Writ of Ejectione Firme is, Quare Page  2 unum Messuagium vi & armis fregit & intra∣vit; and all the Addition in the Ejectione Firme is, Et ipsum à firmâ sua inde ejecit, &c. The Conclusion of both is, Et alia enormia ei intulit ad grave damnum; and the Trespass and Ejectment are so woven and intermixt together, that they cannot be severed; and the Entry in an Ejectione Firme is, In plito' Transgressionis & Ejectionis Firme. In 6 R. 2. Tit. Eject' Firme a. it is called an Action of Trespass in its Nature. The Consequence of this is, That in this Action, Accord with Sa∣tisfaction is a good Plea. And Accord and Satisfaction for one shall discharge all the Trespassers and Ejectors; and tho' the Term (which is a Chattel Real) shall be reco∣vered as well as Damages, yet it is a good Plea.

Now tho' we find few Titles of Ejectione Firme in our Old Books, yet it was in use all along; it was used in Bracton's time, and, Term and Damages were recovered therein. In tempore H. 3. he saith, Si quis ejiciatur de usu fructu vel habitatione alicujus tenementi quod tenuit ad terminum annorum ante ter∣minum suum, there the Lessee shall have a Writ of Covenant against his Lessor; and against his Vendee he shall have a Quare Ejecit infra Terminum; and as well against the Lessor as a Stranger, an Ejectione Firme.

But this Action came to be more frequent in my Lord Dyer's time, as may appear by his Complaint in Court when he was Lord Chief Justice of the Common Pleas;* which also gives us the Reason of the change of Real Actions into Ejectments; All Actions Page  3 (saith he) almost which concern the Realty, are determined in the King's Bench by Writs of Ejectione Firme, whereby the Judgment is, quod recuperet Terminum, and by that they are soon put into Possession. And there∣fore in a Formed•n it was prayed by Coun∣cil that they might proceed without Essoyns, and feint Delays, because the Plaintiff's Ti∣tle appeared, which my Lord Dyer granted, Because (said he) this Court is debased and lessened, and the King's Bench doth increase with such Actions which should be sued here, for the speed which is there: And (con∣tinued he) no Action in Effect is brought here, but such Actions as cannot be brought there, as Formedons, Writs of Dower, and the like. And it is my Lord Chief Justice Hale's Observation in his Preface to Rolls's Abridgment: The Remedy by Assises and seve∣ral Forms and Proceedings relating thereunto, were great Titles in the Year-Books; and al∣tho' the Law is not altered in relation to them, yet Use and common Practice hath in a great measure antiquated the use of them by recover∣ing Possessions, and the Remedy by Ejectione Firme used instead thereof. So that rarely is any Assise brought, unless for recovering Pos∣sesion of Offices. And so of Real Actions, as Writs of Right and Writs of Entry, which are seldom brought, unless in Wales, by a Quod ei deforceat. But now the Entry of him that hath right being lawful, Men choose to recover their Possessions by Ejectione Fir∣me. But there was a new way invented to try Titles of Land in personal Actions, but was not allowed, as in Jeremy and Page  4 Simson's Case, 16 Car. 2. B. R.

It was moved for Tryal at Bar on a feigned Action on the Case, upon a Wager by A∣greement of Parties, to have the Opinion of the Court of the Validity of a Will; but tho' the Action was laid in Middlesex, yet being an Innovation, and the way to subvert Ejectione Firme's, which have subvert∣ed the Formedons, and it sufficiently appearing feigned on the Record, in that the Title of Land is hereby to be tryed in personal Actions, it was totally denied; but had it been by direction of Chancery, the Court would do it, but would in no wise grant this.

It was said by Ellesmere Lord Chancel∣lor, that until the 14. H. 7. it was never known that a Possession was removed by an Action of Ejectione Firme, and said, It was great pity it was allowed at this day for Law in England; and therefore was of Opinion, That an Action of Trespass Quare clausum fregit, was much better to try the Title than an Ejectione Firme. 1. Because no Possession was removed by the one. 2. Because a Man may so plead in an Action of Trespass, as that he may make the Plaintiff disclose his Title; whereas by his Ejectione Firme it is no more than Non culp', and then a Trial, and so out of Possession without more busi∣ness, which, he said, was a Pick-pocket A∣ction. Ex M. S. 3 Leon, p. 49.

This Action is grounded on two Things, (videlicet) the Lease and the Ejectment.

It was well observed in Eyres and Bani∣ster's Case, Meor Rep. 418. That Ejectione Page  5 Firme in former times was not thought to be an Action which concerned the Lessor, but only the proper Interest of the Lessee; but now of late times it is put in ure by the Experience of the Judges and all others, that an Ejectione Firme is the Suit of the Lessor, and the Lease made only to try his Title, and to recover the Possession to him, and the Suit is prosecuted at his Charge, and his Lessee is but his Instrument to this purpose; and all this to avoid the Charge and Delay of a Real Action, and the Peril of being barred by a single Verdict. And Partridge and Strainge's Case, Plo. 78. was cited for the purpose; if one being out of Possession above a year, makes a Lease for years, this is Maintenance within the Stat. 32 H. 8. and the Lessor and the Lessee shall lose the Value of the Land; but if such a Person be at this day possest of such a Lease to try the Title, and not by Contract, that the Lessee shall hold the Land, this is no Main∣tenance, as hath been resolved in B. C. B. R. and Star-Chamber.

But for the better understanding the na∣ture of this Action, I shall shew wherein it differs from an Action of Trespass and a Quare Ejecit infra Terminum; for tho', as was observed before, it is in a sort a Tres∣pass, yet it differs from it in several Things.

In Trespass Damages are only to be reco∣vered, [ 1] * but in Ejectione Firme the Thing or Term it self is to be recovered as well as Da∣mages: And from hence another difference is observable in respect of Certainty. If in Page  6 Trespass the Plaintiff declares in one Acre, and abutts it, and the Jury find him guilty in dimidio Acrae praedict', or in one Foot of it, this is good, tho' the Moiety is not bound∣ed; they have found the Trespass in the Moiety of the Acre bounded, and this suf∣ficeth •n this Action where Damages are only to be recovered: But if it were in E∣jectione Firme it had been ill; for it is not certain in what part the Plaintiff shall have his Habere fac' possessionem. And from this Diversity it is, that if an Ejectione Firme be brought against two Defendants, the one confesseth the Action, and the other pleads in Bar, Not guilty, the Plaintiff cannot re∣lease his Suit as to one of the Defendants, and proceed against the other; but in Tres∣pass in such Case he may, because this Suit is only in point of Damages. Yelv. 114. Winck∣worth and Man. 2 Bulstr. 53.

[ 2] *Possession is a good Title for the Plaintiff in Trespass, if the Defendant hath not a better to shew, aliter in Ejectment; for in Ejectione Firme if the Plaintiff hath not a Ti∣tle according to his Declaration, he cannot recover, whether the Defendant hath Title or not, as was Cotton's Case. An Infant leaseth Land to C. at will▪ who entred and ousted S. who thereupon brought an Ejectione Firme, on a special Verdict no Title appeared to be in the Plaintiff, and it was objected against the Lease at will, because it was made by an Infant, and no Rent reserved upon it, nor the Lease made upon the Land, and therefore the Lessee should be a Disseisor Per Cur' be the Defendant a Disseisor or Page  7 not, its not material here, for if the Plain∣tiff hath not Title according to his Decla∣ration, he cannot recover; and it is not like to Trespass, where the very Possession without other Title, is good. 1 Leon, 215. Cotton's Case.

Naked Colour is not sufficient in Ejectione [ 3] * Firme, as it is in Trespass; therefore if the Plaintiff make Title in Ejectment, this Title of the Plaintiff ought of necessity to be an∣swered (viz.) either by matter of Fact, or in Law, which confesseth and avoideth the Title, or traverseth it: For a naked Colour in this Action is not sufficient, as it is in Assise or Trespass, which comprehend not any Title or Conveyance in the Writ or Count, as this Action does in both; and in Godb. 159. in this Action a Man shall not give Colour, because the Plaintiff shall be adjudged in by Title. Dyer, 366. Godb. 159. Piggot and Goddet's Case.

Allowance of Conisance of Franchise in [ 4] * Trespass, will not warrant an Ejectione Fir∣me, unless the Franchise had Conusance of all Pleas, as was adjudged in the Case of the Bishop of Ely, Ter. P. 18 Car. 2. B. R.

In Clerks Case the Venire fac' was ad fa∣ciend' [ 5] juratam in Placito Transgressionis, where it should have been in Placito Transgressio∣nis & Ejectionis Firme, and the Court would not amend it: For though Ejectione Firme be but a Plea of Trespass in its Nature, yet the Actions are several, and therefore the Venire fac' ought to be accordingly. Cr. El. 622. Clerk's Case.

Page  8 [ 6] *Ejectione Firme against two Defendants, one pleads Not guilty, the other pleads, the Plaintiff replies, and so Demurrer; no Judg∣ment shall be given on the Demurrer, till the Issue be tried; for in this Action the Possession of the Land is to be recovered, and it may be for any thing that appeareth he who pleads the General Issue, has Title to it; but if it had been an Action of Tres∣pass, and the Plaintiff will release his Dama∣ges on the Issue joyned, he shall have Judg∣ment against the other. 2 Leon. 199. Drake and Monday.

[ 7] Trespass is deins Stat. 21 Jac. which names Trespass generally, but Ejectment is not, 1 Keb. 295. Power's Case.

[ 8] The Plaintiff declares in Trespass in one Acre, and abutts it, the Jury find him guilty in dimidio Acre praed', this is good; but if it were in Ejectione, the Verdict had been ill; for it is not certain in what part the Plain∣tiff shall have his Habere fac' possessionem, Yelv. 114.

Ejectione Firme and Trespass of Battery were both in one Writ,* and upon Not guil∣ty, Verdict was given for the Plaintiff both for the Ejectment and for the Battery, and intire Damages. Q. of the Judgment; for the Damages for the Battery could not be re∣leased, because they were entire with the Ejectment, Hob. 249. Bird and Snell.

Ejectione Firme against a Baron and Feme, which are but one Person in Law, yet if the Baron dies, the Suit shall proceed against the Wife; for it is in the nature of a Trespass, Hardr. 161.