So much curiosity has been excited among lay readers in this country and in America, and also among professional persons in France and Germany, as to the real nature of the species of action mentioned in the text, that the author is induced here to give some further account of a matter which enters so considerably into the construction of this story. The action of Ejectment is described with minute accuracy in the text; has been in existence for at least five hundred years, (i. e. since the close of Edward II., or beginning of Edward III., A. D. 1327;) and its venerable but tortuous fiction has been scarcely even touched by the "amending hand," which lately (1834) cut away so many cumbrous, complicated, and quasi obsolete portions of the law of action, (see Stat. 3 and 4 Will. 4, c. 27, § 36.) The progress of this action is calculated to throw much light on some of our early history and jurisprudence. See an interesting sketch of it in the first chapter of Mr. Sergeant Adams' Treatise on Ejectment. It was resorted to for the purpose of escaping from the other dilatory, intricate, and expensive modes of recovering landed property anciently in existence. The following is the description given of it by Lord Mansfield—and is equally terse and correct, and applicable to the present mode of procedure. "An 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 with the proper party. The control the Court have over the judgment against the Casual Ejector, enables them to put any terms upon the plaintiff which are just. He was soon ordered to give notice to the tenant in possession. When the tenant in possession asked to be admitted defendant, the Court was enabled to add Conditions; and therefore obliged him to allow the fiction, and go to Trial on the real merits."—(Fair Claim v. Sham Title,[*] 3 Burr. 1294.) This action is now, in effect, the only direct common-law remedy for the recovery of land in England and Ireland; in many of the United States of America the action of Ejectment is retained—"with its harmless, and—as matter of history—curious and amusing English fictions."—(4 Kent's Comment. p. 70, note e:) but in New York, the action of Ejectment is "stripped of all its fictitious parts."—(Id. ib.)
[*]These fantastical names are now almost invariably abandoned for those of "John Doe" and "Richard Roe."
Note 16 [Page 309].
Blackstone's Commentaries, vol. iii. App. pp. ix. x.
Note 17 [Page 310].
"A warranty will not extend to guard against defects which are plainly and obviously the object of one's senses: as if a horse be warranted perfect, and wants either a tail, or an ear: unless the buyer in this case be blind."—3 Blackst. Comm. 166.
Note 18 [Page 310].
On the 22d August, 1843, (since the publication of this work,) a brief but most important statute (6 and 7 Vict. c. 85) was enacted, "for improving the Law of Evidence"—the chief object of which was, to remove all such difficulties as that which formed the subject of Mr. Parkinson's inquiries. Witnesses are now no longer "incompetent" to give evidence by reason of crime or of any interest which they may have in, or in respect of, the subject-matter of the action.
Note 19 [Page 346].
Whether Mr. Aubrey was justified in doing this, under his circumstances, is a question which the author has seen, and heard, several times keenly discussed. It is surprising how much may be said on both sides of the question, by ingenious casuists.