And if, not the tenant, but the landlord himself, were deprived of his
property? or, if anyone not in possession claimed a piece of land as
his freehold? These forms of procedure were not available, since they
were personal actions, and a claimant to the freehold must proceed
by a real action. These last were in early times the most important
of all. But their forms were numerous and varied (the assizes of
_morte d'ancestor_ and _novel disseisin_, as they were called in old
law French, were two of the best known), and their cumbersome and
complicated technicalities were cause of much expense, irritation,
and delay. At last it occurred to some ingenious, though forgotten,
jurist so to twist this Writ of Ejectment, which had all the last
improvements, as to make it available in an action for the recovery
of the freehold. That was done in this way. A. was (let us suppose)
the legal and rightful owner of an estate occupied in fact by B.;
he entered on the land with C., to whom he, then and there, signed,
sealed, and delivered a lease for the property in question; to them
so engaged entered B., attracted by their manoeuvring, and speedily
kicked both into the boundary ditch. Here were all the materials
for the action of ejectment, since C. might truly declare himself
dispossessed _vi et armis_ by B. from land whereof he held a lease from
A. In this action the main point evidently was: Had A. a right to
grant C. the lease? In other words, was A. the real owner of the land?
If the jury said "Yes," then judgment for possession followed for C.,
who, being merely the nominee of A., forthwith passed the property over
to him. Improvements were speedily suggested. Actual ejection was like
to prove unpleasant, so A. and C., instead of ostentatiously soliciting
B.'s attention, took with them a confederate D., who, in a friendly
and affable manner, performed the function of a chucker-out, and this
casual ejector (as they named him) was made nominal defendant in the
action wherein C. was nominal plaintiff. Lest B. should be condemned
unheard, it was provided that the casual ejector must give him notice
of the proceedings, whereupon he was let in to defend in place of D.
This device was a brilliant practical success. Real actions pure and
simple fell speedily into disuse, though it was not till 1833 that,
with a few exceptions further tampered with in 1860, they were legally
abolished.
Public-domain text, read in full here on John Shaqi.
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