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EJECTMENT (Lat. e, out, and jacere, t...

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Originally appearing in Volume V09, Page 138 of the 1911 Encyclopedia Britannica.
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EJECTMENT (Lat. e, out, and jacere, to throw), in English law, an action for the recovery of the possession of land, together with damages for the wrongful withholding thereof. In the old classifications of actions, as real or personal, this was known as a mixed action, because its object was twofold, viz. to recover both the realty and personal damages. It should be noted that the term " ejectment " applies in law to distinct classes of proceedings—ejectments as between rival claimants to land, and ejectments as between those who hold, or have held, the relation of landlord and tenant. Under the Rules of the Supreme Court, actions in England for the recovery of land are commenced and proceed in the same manner as ordinary actions. But the historical interest attaching to the action of ejectment is so great as to render some account of it necessary. The form of the action as it prevailed in the English courts down to the Common Law Procedure Act 1852 was a series of fictions, among the most remarkable to be found in the entire body of English law. A, the person claiming title to land, delivered to B, the person in possession, a declaration in ejectment in which C and D, fictitious persons, were plaintiff and defendant. C stated that A had devised the land to him for a term of years, and that he had been ousted by D. A notice signed by D informed B of the proceedings, and advised him to apply to be made defendant in D's place, as he, D, having no title, did not intend to defend the suit. If B did not so apply, judgment was given against D, and possession of the lands was given to A. But if B did apply, the Court allowed him to defend the action only on condition that he admitted the three fictitious averments—the lease, the entry and the ouster—which, together with title, were the four things necessary to maintain an action of ejectment. This having been arranged the action proceeded, B being made defendant instead of D. The names used for the fictitious parties were John Doe, plaintiff, and Richard Roe, defendant, who was called " the casual ejector." The explanation of these mysterious fictions is this. The writ de ejection firmae was invented about the beginning of the reign of Edward III. as a remedy to a lessee for years who had been ousted of his term. It was a writ of trespass, and carried damages, but in the time of Henry VII., if not before that date, the courts of common law added thereto a species of remedy neither warranted by the original writ nor demanded by the declaration, viz. a judgment to recover so much of the term as was still to run, and a writ of possession thereupon. The next step was to extend the remedy—limited originally to leaseholds—to cases of disputed title to freeholds. This was' done indirectly by the claimant entering on the land and there making a lease for a term of years to another person; for it was only a term that could be recovered by the action, and to create a term required actual possession in the granter. The lessee remained on the land, and the next person who entered even by chance was accounted an ejector of the lessee, whb then served upon him a writ of trespass and ejectment. The case then went to trial as on a 1 According to Jones's Bardic Remains, " To sing ` Pennillion with a Welsh harp is not so easily accomplished as may be imagined. The singer is obliged to follow the harper, who may change the tune, or perform variations ad libitum, whilst the vocalist must keep time, and end precisely with the strain. The singer does not commence with the harper, but takes the strain up at the second, third or fourth bar, as best suits the ` pennill ' he intends to sing. Those are considered the best singers who can aslant stanzas of various metres to one melody, and who are acquainted with the twenty-four measures according to the bardic laws and rules of composition." common action of trespass; and the claimant's title, being the real foundation of the lessee's right, was thus indirectly deter-mined. These proceedings might take place without the know-ledge of the person really in possession; and to prevent the abuse of the action a rule was laid down that the plaintiff in ejectment must give notice to the party in possession, who might then come in and defend the action. When the action came into general use as a mode of trying the title to freeholds, the actual entry, lease and ouster which were necessary to found the action were attended with much inconvenience, and accordingly Lord Chief Justice Rolle during the Protectorate (c. 1657) substituted for them the fictitious averments already described. The action of ejectment is now only a curiosity of legal history. Its fictitious suitors were swept away by the Common Law Procedure Act of 1852. A form of writ was prescribed, in which the person in possession of the disputed premises by name and all persons entitled to defend the possession were informed that the plaintiff claimed to be entitled to possession, and required to appear in court to defend the possession of the property or such part of it as they should think fit. In the form of the writ and in some other respects ejectment still differed from other actions. But, as already mentioned, it has now been assimilated (under the name of action for the recovery of lands) to ordinary actions by the Rules of the Supreme Court. It is commenced by writ of summons, and--subject to the rules as to summary judgments (v. inf.)—proceeds along the usual course of pleadings and trial to judgment; but is subject to one special rule, viz: that except by leave of the Court or a judge the only claims which may be joined with one for recovery of land are claims in respect of arrears of rent or double value for holding over, or mesne profits (i.e. the value of the land during the period of illegal possession), or damages for breach of a contract under which the premises are held or for any wrong or injury to the premises claimed (R.S.C., O. xviii. r. 2). These claims were formerly recoverable by an independent action. With regard to actions for the recovery of land—apart from the relationship of landlord and tenant—the only point that need be noted is the presumption of law in favour of the actual possessor of the land in dispute. Where the action is brought by a landlord against his tenant, there is of course no presumption against the landlord's title arising from the tenant's possession. By the Common Law Procedure Act 1852 (ss. 210-212) special provision was made for the prompt recovery of demised premises where half a year's rent was in arrear and the landlord was entitled to re-enter for non-payment. These provisions are still in force, but advantage is now more generally taken of the summary judgment procedure introduced by the Rules of the Supreme Court (Order 3, r. 6.). This procedure may be adopted when (a) the tenant's term has expired, (b) or has been duly determined by notice to quit, or (c) has become liable to forfeiture for non-payment of rent, and applies not only to the tenant but to persons claiming under him. The writ is specially endorsed with the plaintiff's claim to recover the land with or without rent or mesne profits, and summary judgment obtained if no substantial defence is disclosed. Where an action to recover land is brought against the tenant by a person claiming adversely to the landlord, the tenant is bound, under penalty of forfeiting the value of three years' improved or rack rent of the premises, to give notice to the landlord in order that he may appear and defend his title. Actions for the recovery of land, other than land belonging to spiritual corporations and to the crown, are barred in 12 years (Real Property Limitation Acts 1833 (s. 29) and 1874 (s. 1). A landlord can recover possession in the county court (i.) by an action for the recovery of possession, where neither the value of the premises nor the rent exceeds boo a year, and the tenant is holding over (County Courts Acts of 1888, s. 138, and 1903, s. 3) ; (ii.) by " an action of ejectment," where (a) the value or rent of the premises does not exceed £loo, (b) half a year's rent is in arrear, and (c) no sufficient distress (see RENT) is to be found on the premises (Act of 1888, s. 139; Act of 1903, s. 3; County Court Rules 1903, Ord. v. rule 3). Where a tenant at a rent not exceeding £2o a year of premisesat will, or for a term not exceeding 7 years, refuses nor neglects, on the determination or expiration of his interest, to deliver up possession, such possession may be recovered by proceedings before justices under the Small Tenements Recovery Act 1838, an enactment which has been extended to the recovery of allotments. Under the Distress for Rent Act 1737, and the Deserted Tenements Act 1817, a landlord can have himself put by the order of two justices into premises deserted by the tenant where half a year's rent is owing and no sufficient distress can be found. In Ireland, the practice with regard to the recovery of land is regulated by the Rules of the Supreme Court 1891, made under the Judicature (Ireland) Act 1877; and resembles that of England. Possession may be recovered summarily by a special indorsement of the writ, as in England; and there are analogous provisions with regard to the recovery of small tenements (see Land Act, 186o ss. 84 and 89). The law with regard to the ejectment or eviction of tenants is consolidated by the Land Act 186o. (See ss. 52-66, 68-71, and further under LANDLORD
End of Article: EJECTMENT (Lat. e, out, and jacere, to throw)
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