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As the plaintiff, in the ancient practice, is the person actually in existence, his death would, of course, abate the action, according to the general rules of law; but as the courts look upon the lessee of the plaintiff to be the person concerned in interest, they will not suffer hiin to be deprived of his remedy by such an event. If, therefore, there be any one of the same name with the plaintiff, he will be presumed to have been the person; and it seems also to have been hield to be a contempt of the court to assign for error the death of the nominal plaintiff. (Addison v. Otway, 1 Mod. R. 250, 252. Moore v. Goodright, Strange's R. 899.)
In like manner, before the introduction of the modern practice, it was said that if the plaintiff released to one of the tenants in possession, who had been made defendant, such release would be a good bar, because the plaintiff could not recover against his own release, since he was the plaintiff upon the record; but the courts considered such a release as a contempt, and it is said that a plea of this nature does not appear ever to have occurred in practice. (Peto v. Cheny, 2 Brown's R. 128. Anonymous, 1 Salk. R. 260.) In England, before the present common law procedure act, a release by a lessee of the plaintiff was no bar. They then looked to the plaintiff on the record. They considered the nominal plaintiff as the real party. (Byne v. Brewer, 4 Maule & Selw. R. 301.) But the courts of the state of New York, from a very early period, have been in the practice of considering the parties as they really are; tlie lessees as the parties in interest, and the nominal plaintiff as an ideal and fictitious person; and the New York courts endeavor to practice upon the maxim, that fiction shall do no prejudice. In this respect, the practice in New York has always been more in accordance with the ancient than the modern common law practice in England.
In a very early case in New York, it was decided that a release after issue joined in ejectment may be pleaded puis darrein continuance, and if well pleaded is a bar to the action. In that case there were two lessors. The plaintiff showed title in one of the lessors, and rested. The defendant showed a conveyance from the same lessor to the landlord of the defendant, dated after issue joined. The plaintiff then produced a deed from the same lessor to the other lessor, older than the deed to the defendant's landlord; but it appeared that when this last deed was executed, the defendant was in possession, holding adversely; on that ground the court held the plaintiff could not recover on it. It therefore became necessary to decide whether the plaintiff could recover upon the title of the first-named lessor, potwithstanding his deed to the landlord of the defendant. The objection was raised, that such a release
a cannot be pleaded or given in evidence, because the lessor is not a party to the record; but it was urged that it was void for maintenance. The court held that even if it was an act of maintenance, which they did not decide, yet it was good between the parties, and that such lessor could not recover against his deed, but that he was estopped by it; that the only objection which could have been made at the trial was, that it was not pleaded. In the action of ejectment, they say, we must look steadily to the legal title. (Jackson v. Duinont, 9 Johns. R. 55. Vide, also, to the same effect, Jackson v. Wheeler, 10 ib. 164. Jackson v. Foster, 12 ib. 490.
. Jackson v. McClaskey, 2 Wend. R. 541.) It will be discovered, when the subject is considered, that the present practice in New York is the same as when the cases above cited were determined.
It has been decided by the supreme court of the United States, that although an action of ejectment is founded in fiction, yet for certain purposes it is considered in the same manner as if the whole proceedings were real; for all the purposes of the suit the lease is to be deemed a real possessory title. It was accordingly held that a conveyance by the plaintiff's lessor during the pendency of an action of ejectinent, can only operate upon his reversionary interest, and cannot extinguish the prior lease. The existence of such a lease is a fiction; but it is upheld for the purpose of justice. If it expire during the pendency of a suit, the plaintiff cannot recover his term at law, without procuring it to be enlarged by the court, and can proceed only for antecedent damages. (Robeson v. Campbell, 3 Wheaton's R. 212.)
The casual ejector is also in the ancient practice a real person, but the court will not allow him to confess a judgment; and where, upon proceedings on a vacant possession, the casual ejector gave a warrant of attorney for this purpose, the court set the judgment aside. (Fooper v. Dale, Strange's R. 531.)
In many respects the practice in this country in the action of ejectment has always been quite similar to the ancient practice in England; and it was quite early decided that the strict principles applicable to the proceedings in ejectment as for a vacant possession in England could not, without manifest landship and inconvenience, be applied to the unsettled lands in this country. (Saltonstall v. White, 1 Johnson's Cases, 221.) Accordingly, where the lessor of the plaintiff proceeded as for a vacant possession, and obtained a regular judgment by default, it was set aside, and the person claiming to be owner of the land, on the affidavit of merits, was admitted a defendant, on payment of costs and stipulation to admit he was in possession at the commencement of the suit. (Wood v. Wood, 9 Johns. R. 257.)
OF THE MODERN ACTION OF EJECTMENT THE DECLARATION OF ENTIT
LING THE SAME THE VENUE THE DEMISE - DESCRIPTION OF THE PREMISES CLAIMED THE ENTRY - THE OUSTER AMENDING THE DECLARATION.
The practical proceedings in the modern action of ejectment, vary from the proceedings in all other actions; that is to say, this is true in all cases where the action is prosecuted according to the principles of the common law, or in accordance with the practice in England until the adoption of the common law procedure act of 1852. The practice has been changed in many of the American states, which will be considered in another place. What is understood by the modern action of ejectment, as contradistinguished from other forms of action only, and the practice in such action will be considered in this, and the five following chapters.
The modern action of ejectment, strictly speaking, so called, is commenced by the delivery of the declaration against the casual ejector to the tenant in possession; and it has been held, that declaration in ejectinent is so far considered a process of the court, that the court will punish as a contempt, any improper conduct of the tenant at the time it is delivered to him. (Rex v. Smith, Strange's R. 567.) The action is commenced by the service of a declaration, because the plaintiff and defendant are only fictitious persons, and therefore the suing ont of a writ would be a useless form. The declaration is the only means by which the party in possession is informed of the claim set up by the lessor, and
required to appear and defend his title. (Rex v. Smith, Strange's R. 567.)*
The several requisites of the declaration will first be considered, as those naturally come first in order. The rules which relate to personal actions only, do not extend to the action of ejectment, which is regarded in England as a mixed action, and therefore it is held that the old forms of entitling and commencing the declaration should be observed. (Doe v. Roe, 3 Moore & Scott's R. 370. Doe v. Roe, 1 Adolph. & Ell. R. 11. Doe v. Roe, 2 Dowl. P.
1 C. 690.)
The declaration should be regularly entitled of the term immediately preceding the vacation in which it is delivered; but if it should be entitled of a wrong term, or a term not arrived, or not of any terin, it seems from the cases to be immaterial, provided the notice to appear at the foot of the declaration was sufficient to give the tenant due warning of the time of his appearance. (Doe v. Roe, 2 Dow. P. C. 186. Doe v. Ross, 3 ib. 5. Doe v. Rowe, 4 ib. 374. Doe v. Roe, 5 ib. 380. Doe v. Roe, Ib. 508. Doe v. Roe, 6 ib. 184. Doe v. Roe, 9 ib. 347. Doe v. Roe, 6 Man. & Gr. R. 754.) The same doctrine has been held in this country. In the state of New York, where the practice in ejectment was similar to that lately prevailing in England, the supreme court held, that the title to a declaration in ejectment is mere form, and good, though of a term after its service; and that the declaration would be good, even without any title at all. (Jackson v. Stiles, 6 Cow. R. 597.) And the same rule has been recognized in the state of New Jersey. (Vide Den v. Snowhill, 1 Green's R. 23. Den v. McShane, Ib. 35.)
In England declarations have been upheld entitled Michaelmas term, “54 George III," instead of “55 George III” (Goodtitle v. Roe, 2 Chitty's R. 172); Trinity term, “56 George III," instead of " 55 George III” (Doe v. Graves, 2 Chitty's R. 132); Michaelmas term, “8 William IV," instead of “7 William IV," Trinity term, “6 William IV," instead of “5 William IV ”
* The fictions of what is called in the books the modern action of ejectment are no longer retained in practice in England, or in most of the United States But, inasmuch as the old common law practice in the action is still in vogue in portions of the United States, and as many of the principles governing such practice are everywhere recognized in actions to recover real property, these chapters in respect to the modern action of ejectment, so called, cannot well be omitted.
(Goodtitle v. Roe, 2 Chitty's R. 172); “Hilary," instead of “Michaelmas” term (Anonymous, 2 Chitty's R. 172); and
Michaelmas," instead of “ Easter” term (Anonymous, 2 Chitty's R. 173), the notices to appear being correct, and the declarations being delivered at the proper time. So also “In the common pleas, June 12, 1834" (Doe v. Roe, 1 Bing. N. C. 253); and when the declaration was delivered before the first day of “Hilary” term, and the notice at its foot was dated “January 1, 1818," and was to appear within the first four days of the next term, it was held sufficiently certain, although not entitled at all. (Goodtitle v. Badtitle, H. T. 1818, C. B. M. S.) These are the cases referred to by Mr. Adams on the subject of entitling the declaration, and sufficiently illustrate the views of the court in respect to it.
On the contrary it seems that a declaration entitled Trinity terın, " 4th Victoria," instead of “3d Victoria,” has been held insufficient, although it was sworn that the service was effected on the 29th day of October, with notice to appear in the next Michaelmas term. (Doe v. Roe, 9 Dowl. P. C. 43. Doe v. Roe, 1 Wol. P. C. 58. Doe v. Roe, 2 Dowl. N. S. 392.) So, also, a declaration entitled “ 6 William IV," instead of “7 William IV," has been held insufficient; and so, also, a declaration entitled “ Michaelmas term, 1840,” with a notice to appear in “next Mich
a aelmas term," and which declaration was served before the commencement of the term, on which occasion the tenant said he knew no step could be taken until March, was held insufficient. (Doe v. Roe, 5 Dowl. P. C. 273. Doe v. Roe, 9 ib. 67.)
, If the declaration be irregularly entitled, and the notice to appear does not demonstrate the time for appearance with sufficient certainty, as where the declaration was entitled of a term not arrived, and there was no date to the notice, it seems, upon principle, that such declaration ought not to be supported; but Mr. Adams says it has been ruled both ways, and cites authorities to show it. (Doe v. Roe, 7 Dowl. P. C. 579. Doe v. Roe, 9 ib. 131. Anonymous, 2 Chitty's R. 172. Doe v. Roe, 8 Scott's R. 385.)
It has also been held in England, as well as in this country, that the omission of the name of the court on entitling the declaration, is immaterial, if the notice at the foot gives the required information. (Doe v. Roe, 8 Dowl. P. C. 612.) It is also held to be immaterial whether the declaration be filled in with the name of the casual ejector or the tenant in possession, except that in the