CHAPTER III.

ACTIONS.

SECTION 1. COMMON-LAW ACTIONS.1

3 BLACKSTONE'S COMMENTARIES 117.

With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds: actions personal, real, and mixed.

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs; and they are the same which the civil law calls "actiones in personam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere."2 Of the former nature are all actions upon debt or promise; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like.

Real actions, (or, as they are called in the Mirror,3 feodal actions) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process: a much more expeditious method of trying titles being since introduced, by other actions personal and mixed.

Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance an action of waste; which is brought by him who hath the inheritance in remainder or revision, against the tenant for life who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester, which is a personal recompense; and so both, being joined together, denominate it a mixed action.

Under these three heads may every species of remedy by suit or action in the courts of common law be comprised.

1 See Maitland's History of the Register of Original Writs, 3 Harvard Law Review, 97 et seq., reprinted in Select Essays in Anglo-American Legal History, vol. II, p. 549. Stephen on Pleading, Chap. I; Gould on Pleading (Will's ed.) Chap. I; Chitty on Pleading, Chap. II.

4 Inst. 6, 15.

'Ch. 2, § 6.

'6 Edw. I, ch. 5.

3 STREET'S FOUNDATIONS OF LEGAL LIABILITY 44.5

To go through the catalogue of actions in order to place them. properly in this classification would be unprofitable and the result unsatisfactory. We have a hint of the difficulties that would be encountered in such an undertaking when we learn that Bracton could hardly determine in his own mind whether the assizes of novel disseisin and morte d'ancestor were actions in rem or in personam. We must, however, notice a few of the most important of the actions and observe where they belong.

At the top of the scale actions avialable for the recovery of lands and interests therein was the writ of right, the most real of the real actions, the great and final remedy for the recovery of proprietary interests in land. Closely associated with this remedy in procedure were certain other writs said to be in the nature of the writ of right. Such were the writ of right of dower, the formedon in descender and reverter, and the writ of right de rationabili parte.

Below the writ of right were the possessory real actions known as the assizes and the writ of entry. In the assize of novel disseisin the plaintiff recovered both seisin and damages, this being, says Blackstone, the only instance where damages were recoverable in a possessory action at common law.

The assizes were in the nature of statutory remedies, and available only under circumstances defined for each. The writ of entry, on the other hand, was the universal remedy for the recovery of possession wrongfully withheld from the owner. Its forms were many, "being plainly and clearly chalked out in that most ancient and highly venerable collection of legal forms, the Registrum Brevium.” Some form of this writ was available by a party ousted of his tenements by abatement, intrusion, or disseisin, and, in general, for deforcements. But the widow's writs for obtaining her dower had special names: writ of dower and writ of dower unde nihil habet. If too much were assigned for dower her holdings could be cut down by means of a writ for the admeasurement of dower, sued out at the instance of the heir or his guardian. The writs of dower were analogous to the writ of right.

For disturbance or usurpation of the right of presentation to a benefice there was a scheme of real actions beginning with the writ of right of advowson and ending in the quare impedit, which latter remedy, in Blackstone's day, had supplanted the others and then remained almost the sole real action in common use. For disturbance in franchises, commons, ways, and tenures, the usual remedy was by an action on the case; but a real action for the admeasurement of common and an action upon a writ quod permittat were respectively available for surcharging and disturbing the common.

The writs de ejectione firmae and quare ejecit infra terminum were maintainable at the suit of a tenant for years who was dispossessed of his interest in the term. The former lay against the lessor, reversioner, remainderman, or any stranger who was himself

See this volume generally for the personal actions at common law.

ACTIONS

145 the wrongdoer; the other against a person claiming under a wrongdoer. From the quare ejecit came the modern action of ejectment. These actions are, like waste, mixed, inasmuch as the plaintiff recovers the unexpired term and damages for the injury. Originally the recovery of damages was the chief object in ejectment, but as the remedy came to be more and more real and was principally used to try questions of title, this object was lost sight of. The damages recoverable in the action of ejectment thus became nominal, and the plaintiff was allowed to sue for his actual damages in an independent action for mesne profits.

Of personal common-law actions the most important are account, covenant, debt, detinue, assumpsit, trespass, case, trover, and replevin. These, as we have seen, are divided into two classes-actions ex contractu and actions ex delicto; a classification logical enough in itself, but made somewhat unsatisfactory by the supposed necessity of forcing the action of detinue into one or the other divisions.

One who compares the treatise of Bracton with such a modern work as Chitty on Pleading will be struck with the fact that the comparative importance of the real and personal actions has been reversed in the period spanning the six intervening centuries. Bracton wrote a big book, and a large part of the really English law which he undertook to expound is found in connection with the subject of real actions. Of the personal actions he has little or nothing to say. In Blackstone's treatise only the personal actions are thought deserving of attention. The old real actions were practically obsolete when Chitty wrote (1808), and within the succeeding generation legislation abolished nearly every remaining vestige of them. The procedure incident to their prosecution was too cumbersome.

It was a toilsome and tedious process, that by which English remedial law was wrought out. Remedies conceived and partially developed in one field had to be warped and bent to strange uses. Ejectment, assumpsit, trover, all illustrate this. Wondrous are the mazes encountered even in a casual glance at the history of the various actions. That there has never been a logical classification in this field is not surprising. Before the time of Blackstone no man could have been in a position to see the subject in its entirety. Even when Coke wrote, many new things were yet to be done with such actions as assumpsit, detinue, trover, and replevin, and in Blackstone's day some parts of the long cavalcade of actions had already passed or were receding from view.

10 CIV. PROC.

(a) Ejectment.

DEN ex dem. JOHNSON v. MORRIS.

SUPREME COURT OF NEW JERSEY, 1822.

7 N. J. L. 6.

This was an action of ejectment, and came before the court upon a rule to show cause why the nonsuit which had been granted by the judge, at the circuit, should not be set aside and a new trial granted.

KIRKPATRICK, C. J.: This is an ejectment for lands in Salem. At the trial of the cause, it was moved for a nonsuit by the defendant's counsel; because the lessor of the plaintiff had not shown a title by deed or other conveyance, nor a possession in themselves and those under whom they claimed, for the term of twenty years, and the plaintiff was called accordingly.

The ground of the nonsuit, as thus presented by the counsel, and taken by the court, is not quite so precisely stated as could have been wished. From the manner in which it is expressed, it is left doubtful whether it was intended to say, that the lessors of the plaintiff had not shown a possession of twenty complete years, and therefore not a sufficient one to maintain an action of ejectment, or that they had not shown a possession within twenty years before action brought, and therefore were barred by the statute.

It will be necessary, therefore, to look into the case, and see how far the motion is supported in point of fact, upon either the one or the other of those grounds.

But before I proceed to this, I feel myself constrained, from the course which the argument at the bar has taken, rather than from anything in the case itself, to make a few observations respecting the action of ejectment, as it has been used in this state, from the earliest settlement of the country down to this time. I say, I feel myself constrained to do this from the course of the argument; for it has been insisted, that the plaintiff in ejectment always has been, and still is obliged, in order to maintain his suit, to show, what the counsel call, a complete, substantive, impregnable title; that is, as it has been explained, a regular deduction of title, by deed from Charles II down to himself, or an exclusive and uninterrupted possession in himself and those under whom he claims, formerly for sixty years, then for thirty, and now for twenty, according as the successive statutes of limitation prevailed; or in other words, such a title as might be disputed, indeed, in point of fact, but could never be overcome by one superior to it. And by way of fortifying this position, reference is made to former practice, in which it is said such deduction was uniformly made, and always required.

See 3 Blackstone's Commentaries, 199; 3 Stephen's Commentaries (15th ed.), 403; Adams on Ejectment, ch. 1; Sedgwick & Wait on Trial of Title to Land, ch. 1.

Part of the opinion is omitted.

Let us examine this position a little. By the common law, estates of freehold in lands passed by livery of seisin only; that is, by a delivery over the actual possession. He, therefore, who was in the actual possession of land, was, prima facie, the tenant of the freehold, and had in him the heritable sesina facit stipitem. If he were ousted or dispossessed of this freehold, by one who had no right, he might without process of law, make a peaceable entry, or, if deterred from that, he might make claim from year to year, which was called continual claim, as near the land as he could, and such entry or claim restored him to his lawful seisin, and made him capable again of conveying, either by descent or purchase. This right of entry, though it might be tolled or taken away by a descent cast, and so, generally speaking, must be pursued during the life. of him that made the ouster, or be forever lost, yet it was limited to no particular period or number of years; so that if it was not actually lost by descent or otherwise, the lawful owner might, at all times, restore himself by entering upon the wrongdoer, in a peaceable manner, and turning him out; but if he suffered it to be once lost, he could no longer restore himself by his own act, but must have recourse to his action at law. And, indeed, even where it was not lost, as it but seldom happened that the wrongdoer would tamely submit to be turned out without force, the owner, if his object was to gain the actual possession and enjoyment of the land, and not merely to put himself in a capacity to make a lawful conveyance, was generally obliged to have recourse to such action, and to call to his aid the process of the law, to restore to him that right which he could not obtain by peaceable means without it; so that, in most cases it may be said, he was put to his action, even when his right of entry was not tolled or taken away.

This action might be, in the first place, by writ of entry," in which he undertook to prove his own former possession, and that the defendant, or some one under whom he held, had dispossessed him; to which the defendant might answer by denying the fact of the dispossession, or by showing in himself an older and a better possession; and then, upon the trial, it was adjudged for him who had the clearest right, or it might be, in the second place, after the

It would seem that in the time of Bracton "A term of four days was the time during which one who has ousted the owner must de facto hold it in order that he may have seisin of it." Maitland, The Beautitude of Seisin, 4 Law Quarterly Review, 31.

9 Ất common law a writ of entry was a possessory action brought against the occupant of a freehold in possession under an entry alleged to have been unlawfully made by him or those under whom he claimed. Booth on Real Actions, 172; III Blackstone's Commentaries, 181; 15 Cyc. 1059. These writs were of various sorts according to the nature of the injury intended to be redressed. Stearn on Real Actions, 139. By the middle of the eighteenth century they were nearly obsolete and were abolished by the act of 3 and 4 William IV, ch. 27, § 36 (1833), but in America they were used in several of the colonies in preference to ejectment and, with modifications, survived the Revolution. Hancock v. Wentworth, 46 Mass. 446 (1843); Bussey v. Grant, 20 Maine 281; Witherow v. Keller, 11 S. & R. Pa. 271 (1824); Potter v. Baker, 19 N. H. 166 (1848). Where still in use, the proceedings are largely statutory. Rev. Laws of Mass. (1902), ch. 179.