Dower, the writ of Quare Impedit and of Ejectment being, however, specially exempted from the operation of this statute. Prior to the Common Law Procedure Act, 1852, the action of ejectment was often considered as a mixed action, although in its form it was a species of the personal action for trespass. This arose through the fact that personal actions were not subject to the disadvantages stated above, and the application of this form of personal action to the recovery of real property seems to have been invented as early as the reign of Henry VIII. This personal action of trespass was called de ejectione firmae, and afterwards simply an ejectment. The Action of Ejectment.-Prior to the Common Law Procedure Act, 1852, the procedure in the action of ejectment was as follows (and it may here be noted that, in addition to damages, it had been decided that the plaintiff, if he succeeded, was entitled to the recovery of the land itself; so that any person who had been ousted of land in any way whatever brought his action in this form, the title to the land being decided by it, and not only the question of damages). The action commenced with a declaration by a fictitious plaintiff (John Doe) against a fictitious defendant (John Roe) complaining that the real claimant, A, having granted a lease for a term of years to Doe, and Doe having entered, the defendant Roe ousted him, for which Doe claimed damages; a notice to the real tenant in possession (i.e. the defendant, B) was subjoined, to the effect that Roe was sued as casual ejector only, and would make no defence. Therefore, if B wished to defend his title he had to appear in court the following term, otherwise judgment would be given against Roe, and B would be turned out of possession. In the following term A, the real plaintiff (called the lessor of the plaintiff), moved the court in the name of Doe for a rule for judgment against the casual ejector (Roe). The court then granted a rule nisi, that is to say, the rule would be made absolute unless in the time named the defendant B appeared to plead. If B now wished to defend, he had to sign a consent rule, which confessed possession on his part, the lease made by the lessor of the plaintiff, the entry of the plaintiff, and the ouster by himself as alleged. He was then allowed to enter an appearance and plead not guilty. The issue was then sent for trial as an action at the suit of Doe on the demise of A (the lessor of the plaintiff) against B, the defendant in possession, and the real question turned on the point whether A had a good title to demise to Doe on the day stated. A (lessor of the plaintiff) was bound to make out a clear title, otherwise he lost the action; but if he did so, then he obtained judgment and a writ of ejectment. (g) Now by the effect of the Common Law Procedure Act, 1852, and of the Judicature Acts, an action for the recovery of land is commenced with the ordinary writ of summons endorsed with a claim for the recovery of the land in question, and no other claim may be joined with it (except by leave of the court) except for mesne profits, arrears of rent, or damages for breach of covenant (Order XVIII. 22); the usual pleadings, statement of claim, defence, and reply follow as in the ordinary course of an action. We may here also notice fines and recoveries. These were a species of fictitious or collusive action, which had the effect of conveyances by matter of record; originally they were actions commenced in the Court of Common Pleas at Westminster for the recovery of land, but eventually they were adopted as a means of conveying estates where the ordinary conveyances could not be brought into play, and more particularly in the case of entailed estates. In such cases they were merely collusive actions. Fines. These were of very ancient origin, dating back to a period prior to the Norman Conquest. The statute 18 Ed. I. (called Modus Levandi Fines) regulated the procedure. They were so called because they put an end to all other suits concerning the same land. The party levying the fine (who was always in collusion with the defendant) was called the cognizor, and the person to whom it was levied (or the defendant in the action) the cognizee. The point of the action consisted in an acknowledgment made in the Court of Common Pleas by the defendant that the land in question was the plaintiff's. The concluding stages of the action were (1) the note of (g) See Steph. Comm., iii. 424 et seq.; Bl. Comm., iii. 177 et seq. the fine, which was an abstract of the writ, and the acknowledgment or concord, and which was enrolled in the proper office; (2) the foot of the fine, which recited the whole proceedings at length. Of this indentures were made and delivered to the cognizor and cognizee (or plaintiff and defendant). By 4 Hen. VII. c. 24 it was enacted that a fine after being engrossed should be openly proclaimed in court sixteen times, and these proclamations were endorsed on the record. Fines were of four kinds: (1) The fine Sur cognizance de droit come ceo que il ad de son don, which operated to pass an estate in fee-simple or for life, an acknowledgment of a former feoffment being made in court; (2) Sur cognizance de droit tantum, which passed a reversionary interest after the particular estate determined; (3) Sur concessit, when a new estate for life or years was granted, reserving a rent; (4) Sur don grant ei render, which was used to create particular limitations. Fines then became one of the common methods of conveying estates, and by 32 Hen. VIII. c. 36 it was enacted that a fine levied with proclamations should bar all those claiming under an entail, but not those in reversion or remainder. (h) Recoveries. These were also collusive actions in which the plaintiff (the recoveror) recovered the land in question from the defendant (the recoveree) in an action carried through all its stages. A fictitious person (called the common vouchee), generally the crier of the court, was brought into the action, who was supposed to have warranted the title to the defendant. But he making default, by understood arrangement, in showing his title, judgment went for the plaintiff, the defendant being left to get land of an equal value from the common vouchee under the warranty, which, of course, he never did, the whole action resulting as an absolute conveyance from the defendant to the plaintiff. (2) The principal use of recoveries was to convey entailed estates, for it was decided in Taltarum's case (k) that a common recovery suffered by tenant in tail should convert the estate (h) Bl. Comm., ii. 302 et seq.; Steph. Comm., i. 540 et seq. (k) (1472) Year Book, 12 Ed. IV. 14, 19. into a fee-simple absolute, barring not only those claiming under the entail, but those in reversion and remainder also. These methods of conveyancing being found intricate and costly, an Act was passed in 1834 (l) for the abolition of fines and recoveries and the substitution of more simple modes of assurance. With regard to estates tail, a simple deed enrolled in Chancery within six months of execution is substituted, subject to the provisions in the Act as to the consent of the protector (if any) of the settlement. Fines and recoveries were also used to pass the estates of married women, but by the same Act a married woman is empowered to convey her estate as if she were a feme sole, provided that at the time of the execution of the deed an acknowledgment be made by her before the proper authorities appointed for that purpose, the woman being examined apart from her husband. By the Conveyancing Act, 1882, s. 7, a memorandum of such acknowledgment in the cases in which it is required is simply made at the foot or in the margin of the deed, the acknowledgment being taken before one commissioner instead of two; and by the Married Women's Property Act, 1882, a married woman may now in all cases convey her separate estate as a feme sole without acknowledgment, provided she was married, or the property accrued to her, after the date of the Act. Trial by Jury. The Civil Jury. Some sort of trial by jury no doubt existed in civil cases in Anglo-Saxon times, but the jurors were the suitors of the court and swore to the facts of their own knowledge. The modern jury, however, had its origin in the system of inquest introduced by the Normans, and which Henry II. used in the grand and petty assizes referred to above. The grand assize was composed of twelve knights of the neighbourhood, who were themselves chosen by four knights appointed for the purpose in the presence of the justices. (7) 3 & 4 Will. IV. c. 74. The petty assize was composed of twelve freemen chosen by the sheriff. In an action for the recovery of land the defendant might choose battle, which was fought out by champions, and not as in criminal cases by the parties themselves, (m) or he might put himself upon the country, that is to say, he might have the matter tried by the new assizes. The jurors combined the functions of the modern jury and of witnesses, and spoke from their own knowledge of the facts (de proprio visu et auditu). In a small society this was perhaps possible; but as the community grew it would become difficult to find twelve men who knew the facts, and it became the jurors' duty to make inquiries from those who did know. Gradually documents, charters, etc., could be used as evidence, and the jurors could listen to persons produced in court by litigants. Still the jurors were bound to be of the vicinage, and up to the reign of Elizabeth it was a cause of challenge to a juror that he was not a hundredor. Some hundredors were required to be present up to the reign of Anne, when it was enacted (n) that the absence of hundredors should not be a cause of challenge to the jury. The jury were now summoned independently of any knowledge of the case they might be supposed to possess, and the practice of summoning witnesses who had that knowledge and could expound it to the jury became firmly established through actual necessity. Thus the jury who had originally acted both as witnesses and judges eventually acted in the latter capacity alone. In the year 1851 (14 & 15 Vict. c. 99) the parties to a civil action became competent witnesses. The Criminal Jury.-Trial by battle, as we have seen, was introduced by the Normans, and this was incidental to the mode of criminal accusation known as appeal. (0) Usually, however, the accusation was brought in the first instance by indictment or the presentment of twelve knights of the shire, and appeal and battle were only resorted to in case the relatives were greatly dissatisfied with the verdict. (m) See Bl. Comm., iii. 338 et seq. (n) 4 & 5 Anne, c. 16. (0) For examples of procedure by battle see Lowe v. Paramour (1571), Dyer, 301; Claxton v. Lilburn (1638), Lea, 244. |