James I (1603–1625)
Charles I (1625–1649)
Throughout Elizabeth’s long reign, ejectment was fictional in the sense that an artificial lease was used to secure leasehold recovery when the underlying issue was determination of freehold title, in the same sense that contract and tort had emerged from fictional adaptation of the action in trespass . References to leases sealed to try titles were common throughout Elizabeth’s reign. However, all stages of the procedure in the action were genuine, including the entry on the land, a grant of a real lease,1 and an ouster from the land.
The problem was legislation which prevented the true character of the action being revealed in open court which beefed up the rules on maintenance by prohibiting also the buying of pretended titles (Statute 32 Henry VIII, 1540, c. 9). In order to avoid the sanctions of the statute it was necessary either to have held possession of the land for the previous year or to have possession at the time of the grant of the lease, though possession for a single hour was sufficient. The sanction was draconian, consisting of the forfeiture of half of the value of the land to the Crown and the award of the other half to the plaintiff bringing the complaint, a penalty sufficient to inhibit avoidance. That a (genuine) lease was caught by this legislation was decided in Partridge v. Strange (1 Plowd. 77, c. 1552). The profession must have assumed that actual entry was required for a lease made for the sole purpose of trying title but this was confirmed in Gerarde v. Worseley (3 Dyer 374b, c. 1579) and reconfirmed in Slywright v. Page (Moore K.B. 266; Goulds. 101, 1 Leon. 166, c. 1588). Joan Wade had made a lease to her half-brother to try title when not in possession and away from the land, and this was treated as a pretended lease within the mischief of the statute. Apparently a lease to a brother of the whole blood would have been good (1 And. 201) and dicta in the case suggested that the real target was a lease made to a great person with the resources to oppress a poorer possessor. The point remained active 10 years later in Willis and Jermine’s case (2 Leon. 97) and apparently divided professional opinion in 1615 (West 1615: s. 449, an obscure text for which one must acknowledge the citation by Holdsworth (1925, p. 10, fn. 4)).
Coke (1628, fo. 369a) in his Commentary on Littleton used the case law to differentiate the position of commoners and great men and to suggest that commoners were relatively safe in granting leases off the land to try titles (Hawkins 1739, p. 264, nn. d–e) That view was disproved by the subsequent decision of the Star Chamber in Leach v. Fuljambe (Gardiner 1886, p. 65, c. 1632) following a riot at the collection of tithes at Chesterfield. Sir Francis Fulliam made a lease to Godfrey Somershill to try the title and, as a baronet, was convicted of champerty and maintenance and fined £ 1000. A common person would have been acquitted of maintenance but convicted of champerty. The whole issue of granting leases out of possession seems to have evaporated under the Commonwealth , presumably as a result of the abolition of the Star Chamber and its jurisdiction (Statute 16 Charles I, 1640, c. 10).
The tabulation set out above of the relative frequency of reported actions reinforces the received wisdom that the invention of ejectment very quickly killed off the real actions. Coke’s report of Alden’s case (5 Co. Rep. 105a, 1601) contains a lengthy lament by the reporter for the real actions , but he protested too much; the reports show what a good living he had made since 1583 arguing numerous ejectment cases, speaking on occasion for 2 days at a time. What he did not explain, and what is not well explained by existing literature, is why a trespass-based action came to triumph. It is conventional to blame the very precise rules of pleading that had to be followed in the real actions, but minute detail was needed to describe the land accurately in ejectment as well (Holdsworth 1925, vol. VII, p. 7). It is more that, at bottom, the real actions were weighted in favour of defendants in terms of delay whereas trespass was favourable to claimants, and it was claimants who chose the form of action.
However, that is not the whole story. This crucial point runs quite counter to received wisdom. It is conventional to think of ejectment as a possessory remedy from which the unsuccessful party could chance his arm on success in a real action . This may have been true later, but it was not the position during the reign of Elizabeth when the use of ejectment actions exploded. The position was the exact reverse. A Statute of Limitation passed in 1540 (32 Henry VIII c. 2) imposed a realistic limitation period in real actions of 50 years for a case based on the possession of an ancestor and even less if based on the plaintiff’s own possession. This did not delimit the right of entry which was tested in ejectment, a defect not corrected until 1623 when a limitation period of 20 years was imposed on a right of entry (Statute 21 James I c. 16). Reeve’s History suggested that limitation was a reason for the switch to ejectment (Reeves 1880, p. 418 n; Baker 2003, pp. 724–725), and if so the triumph of ejectment achieved during the period 1540–1623 arose because it allowed a claimant more scope to exploit long held grievances. This may also explain why ejectione firmae won over trespass , even though trespass was the form of action used in the most famous property case reported by Coke, Shelley’s case (1 Co. Rep. 93b), supposedly ranked by lawyers of the time ahead of Hamlet as literature.
Real actions determined the title to land and were conclusive between the parties to the action. Ejectment held a massive advantage for a wealthy claimant . An ejectment was litigated between the parties to a fictional lease and between those parties it was conclusive, and as to about the title to possession under the ejectment lease, but the outcome did not bind the rival claimants to the freehold , and a losing claimant could avoid stare decisis simply by granting a new fictional lease to a differently named tenant. It was stated quite correctly in Ferrer’s case that this operated to the infinite vexation of land owners—meaning potential defendants in settled possession of land (6 Co. Rep. 7a, 1603). A huge tactical advantage was handed to litigants with deep pockets such as the claimant in Thrustout d. Parke v. Troublesome (2 Strange 1099, 1726), who had forced a defendant to attend five different assizes to defend his land. The only solution for a defendant was yet more expense: an application for an injunction after repeated unsuccessful ejectments to Chancery as in Bath v Sherwin (4 Bro. P.C. 373, 1709, H.L.) or to the equitable jurisdiction of the Exchequer. Sadly, the lust for fees had prevailed over the interests of litigants.
In summary, it was 60 years after leasehold recovery was first allowed in 1499 that the leaseholder’s action was moulded to secure the recovery of freehold land. This development was suggested by the recovery of long leases of tithes and adapted to freehold land by the ingenuity of counsel. The origin is knowable, but is obscured from our understanding because it more or less coincides with the invention of the modern style of reporting. Very soon after the invention of ejectment the course of the pleadings and argument can be followed in great detail in Dyer and Plowden, a pattern of reporting perfected towards the end of the reign of Elizabeth by Sir Edward Coke. The action was convoluted in form because of the need to avoid the Henrician legislation against dealing with pretended titles, a development mirroring the evolution of conveyancing after the legislation against uses, but it was not in essence fictitious.
13.2 Confessing the Lease, Entry and Ouster
The process of evolution was described thus, long after the event, by Lord Blackburn:
A lease was made by the person wishing to recover the land. At first it was a real lease to a real person. The lessee entered on part of the farm; and, if his lessor had title, that entry put the lessee in possession of the whole farm, and enabled him to maintain an action against anyone who ousted him. Afterwards the person who sought to defend the possession was permitted to do so only on the terms that he should ‘confess lease, entry, and ouster, and rely only on title.’ After this, the lease, entry, and ouster, never took place in fact. (Bristow v. Cormican (1878) L.R. 3 App Cas. 641, 661)
During the Commonwealth ejectione firmae gave way to “trespass and ejectment”, and later still the recovery of possession in ejectment was separated from the question of mesne profits. An attempt will now be made to attach some dates to Lord Blackburn’s chronology.
Fictionalisation of the ouster occurred early in the reign of James I. Many cases suggest genuine parties as shown by a contemporaneous case in which the parties were mistaken. Litigation on the issue was very frequent which suggests that the principles were evolving at the time. An ejectment could occur on the day of the lease, but this was only too likely when entry against an established possession might be fleeting. More serious problems arose if an entry was alleged before the date of the lease pleaded; as such a lease must have been purely fictitious, unless the pleading had been quite extremely slack, and it was inevitable that the ejectment would fail when this defect in pleading emerged (Llewellyn v. Williams Cro. Jac. 258). The concentration of case law in the years 1606–1611 must suggest that a battle was underway for the heart of ejectment. Eventually the date of ouster did not have to be stated since it was recognised that this was not a real event (Sedgwick and Wait 1909, pp. 611, 630).
A casual ejector was a person who chanced upon the land after the claimant had entered and granted a lease to the notional plaintiff. Invention of the casual ejector seems to have been stimulated simply by the churn of case law. Wilson v. Weddell (Yelv. 144) was decided about 1609. A son who was trying to eject Margery from possession of copyhold land did so by taking action against a servant living with Margery. This choice was available to ensure that the master could not avoid proceedings by absconding.2 From this it was a short step to develop the idea of the casual ejector, a nominal defendant in an ejectment action whose role is to confess the plaintiff’s case and so lead to a default judgment for possession against the casual ejector, leaving the defendant to come in and defend the case on the merits of his own title if he wishes to do so. Moves toward the complete fictionalisation of the casual ejector date from the Commonwealth and are always attributed to Henry Rolle . He had practised in the King’s Bench throughout the reign of Charles I and was well versed in ejectment . When he was appointed Lord Chief Justice it was first to the King’s Bench in November 1648, but this soon transformed itself into the Upper Bench with the execution of the King in January 1649. He must be admired for the skill with which he avoided complicity in regicide, resigned rather than fall out with Cromwell, and died before facing the new king’s wrath. Rolle’s judgments can be followed in the reports of Style.
The rapid evolution of the casual ejector can be traced in the practitioner’s bible, Style’s Practical Register.3 First a notional ejectment was recognised (Easter 1646: Style 1657, p. 110) and then any occupation of land against the claimant (Trinity 1646: Style 1657, p. 108). An ejector could be casual in the extreme, possibly,
any person who comes upon any part of the Land …, although it be by chance, and with no intent to disturb the Lessee of the possession (Michaelmas 1648; Style 1657, p. 109.)
It was held at this time not to be acceptable to choose an artificial ejector, and also unacceptable for the real parties to agree upon an ejector if any other party would be prejudiced (Michaelmas 1646 and Michaelmas 1648: Style 1657, pp. 109, 111). After the execution of the King, a number of cases in the renamed Upper Bench in 1650 and the succeeding couple of years explicated details of the concept of the casual ejector (Style 1657, pp. 109–112).
Style appended to his discussion the nonsensical observation that “there is no prejudice to any person by having such an Ejector”. In fact purely fictional Casual Ejectors opened the door to collusive ejectments , as Lord Mansfield recognised long afterwards:
Ejectment is an ingenious fiction for the trial of titles to the possession of land. In form it is a trick between two to dispossess a third by a sham suit and judgment. The artifice would be criminal, unless the Court converted it into a fair trial between the proper parties. (Fairclaim v. Shamtitle (1792) 3 Burr. 1290, 1294; cf the second epigram by Jeremy Bentham cited in Lobban, this volume, Chap. 10, p. 199)
Quite clearly recognition of a purely fictional ejectment and the changed practice allowed by Rolle L.C.J. required to be balanced by protection for those claiming title to the land. Things moved very quickly between 1650 and 1652. First, it was decided that it was unnecessary to give notice of the sealing of the ejectment lease to the person claiming title since “it is sufficient to give notice of the Lease to the Tenant or Under-tenant of the Land in question” (Hilary 1647; Style 1657, pp. 167–168). This ruling follows logically from the fact that the ejectment action is based on entitlement to possession rather than title, “though the Title of the land doth also come into question and is tried collaterally” (Style 1657, pp. 107–108). In other words, the issue is the right to possession. Note how the ejectment lease on the eve of the interregnum is genuine and it continues to be so for the next few years.
If ejectment was designed for the trial of title to land, the corollary was that a person with an arguable title must be heard. Style extracts this point in these words:
So, both the tenant in possession and an outsider with title could defend an ejectment. When the claimant entered his declaration, the filing was accompanied by rules, drawn up by the claimant, in a standard form approved by the court, allowing pleading to the ejectment, but only on terms authorised by the court. Throughout the Commonwealth the defendant to an ejectment was required to confess the entry, lease and ouster. If he did not he would face eviction under the default judgment against the casual ejector . Rolle’s innovation was to require this confession in order to force the parties to confront their real dispute, opening the way for fictionalisation and, at the same time, a formal separation of the scaffolding from the underlying structure.
The step described above required a potential defendant to raise a motion before the court. The next step was the making a general Rule of the Court , issued on a Wednesday in March 1649,5 which provided that
It is ordered that after the ordinary rule of this Court hereafter given to the Defendant to plead in any action of trespass and Ejectment , and the Defendant doth not plead to the Declaration, Judgment may be given and entered for the Plaintiff against the defendant, for want of Plea, as in other Actions … (Cooke 1747: Hillary 1649)