remedies. The name of an action which lies for the
the possession of real property, and of damages for the unlawful detention.
In its nature it is entirely different from a real action. 2 Term Rep, 696,
700. See 17 S. & R. 187, and, authorities cited.
2. This subject may be considered with reference, 1st. To the form of
the, proceedings. 2d. To the nature of the property or thing to be
recovered. 3d. To the right to such property. 4th. To the nature of the
ouster or injury. 5th. To the judgment.
3. - 1. In the English practice, which is still adhered to in some
states, in order to lay the foundation of this action, the party claiming
title enters upon the land, and then gives a lease of it to a third person,
who, being ejected by the other claimant, or some one else for him, brings
a suit against, the ejector in his own name, to sustain the action the
lessee must prove a good title in the lessor, and, in this collateral way,
the title is tried. To obviate the difficulty of proving these forms, this
action has been made, substantially, a fictitious process. The defendant
agrees, and is required to confess that a lease was made to the plaintiff,
that he entered under it, and has been ousted by the defendant, or, in
other words, to admit lease, entry, and ouster, and that he will rely only
upon his title. An actual entry, however, is still supposed, and therefore,
an ejectment will not lie, if the right of entry is gone. 3 Bl. Com. 199 to
206. In Pennsylvania, New York, Arkansas, and perhaps other states, these
fictions have all been abolished, and the writ of ejectment sets forth the
possessionof the plaintiff, and an unlawful entry on the part of the
4. - 2. This action is in general sustainable only for the recovery of
the possession of property upon which an entry might in point of fact be
made, and of which the sheriff could deliver actual possession: it cannot,
therefore, in general, be sustained for the recovery of property which, in
legal consideration, is not tangible, as, for a rent, or other incorporeal
heriditaments, a water-course, or for a mere privilege of a landing held in
common with other citizens of a town. 2 Yeates, 331, 3 Bl. Com. 206, Yelv.
143, Run. Eject. 121 to 136 Ad. Eject. c. 2, 9 John. 298, 16 John. 284.
5. - 3. The title of the party having a right of entry maybe in
fee-simple, fee-tail, or for life or years, and if it be the best title to
the property the plaintiff will succeed. The plaintiff must recover on the
strength. of his title, and not on the weakness or deficiency of that of
the defendant. Addis. Rep. 390, 2 Serg. & Rawle, 65, 3 Serg. & Rawle, 288,
4 Burr. 2487, 1 East, R. 246, Run. Eject. 15, 5 T. R. 110.
6. - 4. The injury sustained must in fact or in point of law have
amounted to an ouster or dispossession of the lessor of the plaintiff, or
of the plaintiff himself, where the fictions have been abolished, for if
there be no ouster, or the defendant be not in possession at the time of
bringing the action, the plaintiff must fail. 7 T. R. 327, 1 B. & P. 573, 2
Caines R. 335.
7. - 5. The judgment is that the plaintiff do recover his term, of and in
the tenements, and, unless the damages be remitted, the damages assessed by
the jury with the costs of increase. In Pennsylvania, however, and, it is
presumable, in all those states where the fictitious form of this action
has been abolished, the plaintiff recovers possession of the land
generally, and not simply a term of years in the land. See 2 Seam. 251, 4
B. Monr. 210, 3 Harr. 73, 1 McLean, 87. Vide, generally, Adams on Ej., 4
Bouv. Inst. n., 3651, et seq., Run. Ej., Com. Dig. h. t., Danes Ab. h. t.,
1 Chit. Pl. 188 to 193, 18 E. C. L. R. 158, Woodf. L. & T. 354 to 417, 2
Phil. Ev. 169., 8 Vin. Ab. 323, Arch. Civ. Pl. 503, 2 Sell. Pr. 85, Chit.
Pr. lndex, h. t., Bac. Ab. h. t Doct. Pl. 227, Am. Dig. h. t., Report of
the Commissioners to Revise the Civil Code of Pennsylvania, January 16,
1835, pp. 80, 81, 83, Coop. Justinian, 448.
Source: Bouviers Law Dictionary 1856 Edition
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