the result of negligence or omission, this action will lie. Of course, it embraces a much greater variety of injuries than any other action. (It is in fact what the statute of Westminster iutended it to be, a general remedy for all civil injuries, not before provided for by the established forms in the register. Case is often rendered concurrent with covenant and assumpsit, by waiving the contract, and proceeding for the negligence or tort. It may also in some cases be rendered concurrent with trespass or trover, by waiving the force or conversion, and proceeding for negligence in not returning or taking care of chattels. In fact, all these actions are in their nature separated by such minute shades of difference, and their original boundaries have been so often enlarged for the furtherance of justice, which was too much hampered by the ancient forms, that the most accomplished practitioner is often at a loss which one of two or more actions he ought to adopt. (a)

Ejectment. (b) The action of ejectment is the remedy now used

(a) Declaration in Case. For that whereas the plaintiff has always sustained a fair reputation for honesty, and has never been guilty or suspected of the crime of larceny ; yet the defendant, well knowing this, but maliciously intending to injure the reputation of the plaintiff, and expose him to the penalties of the law for larceny, did utter and publish, in the hearing of sundry persons, of and concerning the plaintiff, the following false and scandalous words, to wit: You [meaning the plaintiff are a thief, and I [meaning the defendant] can prove it; by means whereof the plaintiff is greatly injured in his reputation, and has been rendered liable to a prosecution for larceny.

The above is but a single example of a declaration in case for slanderous words. No general form can be given; for, from the very nature of the action, the declaration must vary with each particular case.

(b) See 1 Swift's Dig. 504; 1 Chitty's Plead. 188; Steph. Plead. 11; 3 Black. Com. 199; Adams on Ejectment, with notes by Tillinghast; Runnington on Ejectment. Although the action of ejectment is superseded by the Code, I have deemed it advisable to add some particulars to the very general view presented in the text. In Holt v. Hemphill, 3 Ohio, 232, the court say, "From the practice which has prevailed since the passing of the limitation act of 1804, it would seem that the action of ejectment has been considered the proper remedy for the recovery of real property under all circumstances; although neither that act, nor those which have since been passed, can be considered as prohibiting real actions, yet there is reason to conclude, and such appears to have been the prevailing opinion, that, by a fair interpretation of those acts, the writ of ejectment may be used in all cases in which the writ of right can be sustained at common law."

Parties. If one having the exclusive title, unite with himself in a joint demise persons having no title, it will be erroneous. Adams v. Turner, 7 Ohio, pt. 2, 136. Tenants in common are authorized by statute to declare upon a joint demise; but if they be infants, they cannot demise by prochein ami. Massie v. Long, 2 Ohio, 287; Wilkinson v. Fleming, 2 id. 301. Where the owners were non-residents, and their tenants did not ask to be admitted to defend, the owners were allowed to remove the case to the federal court. Gwynne v. Roe, 4 Ohio, 435.

Title. The plaintiff must rely wholly upon the strength of his own title, and cannot be aided by the weakness of his adversaries, because bare possession is good against all who cannot show something better. Hence the defendant may prove a superior title in a third person. But this privilege is confined to him. If the plaintiff should endeavor to rebut the defendant's title, by showing one still better than either, he would defeat his own first set up. Ludlow v. Barr, 3 Ohio, 388; Devacht v. Newsam, 3 id. 57; Treon v. Emerick, 6 id. 391; Abram v. Will, 6 id. 164; Dresback v. M'Arthur, 7 id. pt. 1, 146. Fenno v. Holme, 21 How. 481, and evidence of an equitable title is not sufficient. Id.

Evidence. The points to be established are, a legal title in the plaintiff, with a present right of possession; and the fact of possession by the defendant, which is usually

for recovering the possession of real property. In Ohio, and several other States, it is the only action employed for this purpose, having

admitted by the consent rule. But if the defendant is in as tenant, he cannot dispute his landlord's title.

If the claim rest upon occupancy only, it may be shown by proving such facts as enclosing, cultivating, taking the profits, and the like. If this has continued for twentyone years, a deed will be presumed. If for a less time, it will still be good against a subsequent occupancy for a less term. Courcier v. Graham, 1 Ohio, 330; Ludlow v. Barr, 3 id. 388; Stark v. Smith, 5 id. 455; Wallace v. Minor, 7 id. pt. 1, 249; Armstrong v. M'Coy, 8 id. 128.

If the claim rest upon marriage, it must be dower or curtesy. And dower is not here recovered by ejectment, but curtesy is. In either case, the facts to be proved are, a legal marriage, seisin during coverture, and death. In curtesy there was a fourth fact, the birth of a living heir, but the statute dispenses with this. With regard to marriage, if an actual one be proved, it will be presumed to be legal. The best evidence is that of an eye-witness of the ceremony, or a certified copy from the legal register. In the absence of these, proof of cohabitation and general reputation is sufficient.

If the claim rest upon descent, the points to be established are, title in the ancestor, and heirship. Where births are required to be registered, a certified copy is the most convenient proof of pedigree. But in the absence of this, or of direct testimony, we resort to general reputation, declarations of deceased members of the family, entries in family books, monumental inscriptions and the like.

If the claim rest upon devise, the production of the certified copy of the will and probate is sufficient.

If the claim rest upon a deed, or a succession of deeds, our practice is to require only the last deed to be produced, and to receive recorder's copies of all prior conveyances. Burnet v. Brush, 6 Ohio, 32. Ancient deeds are said to prove themselves, and thirty years will make a deed ancient; but in these cases it is important that possession has corresponded. So if a deed not recorded has been lost, its contents may be proved in the best way possible. Allen v. Parish, 3 Ohio, 107; Blackburn v. Blackburn, 8 id. 81.

Judgment and Execution. A judgment in execution is conclusive as to the right of possession for the time laid in the declaration, until reversed on error or made void by a subsequent adverse recovery in another action. Hinton v. M'Neil, 5 Ohio, 509. If judgment by default has been rendered against the casual ejector, a writ of error may be prosecuted in his name. Roe v. Bank U. S. 3 Ohio, 26. When the plaintiff has been put in possession under the writ of habere facias, if he be disturbed he cannot have a second writ, but must bring a new action. Hinton v. M'Neil, 5 Ohio, 509; Hough v. Norton, 9 id. 45.

Injunction to prevent repeated Actions. The question with a court of equity is, whether the litigation, from any cause, either in the number of trials or the loss of evidence, has become vexatious. 2 Story, Eq. Juris. § 859; Bath v. Sherwin, Finch, Prec. 262; 1 Brown, P. C. 266; Leighton v. Leighton, 1 Peere Wms. 672; 2 Brown, P. C. 217; Tenham v. Herbert, 2 Atkyns, 483; Weller v. Smeaton, 1 Brown, Ch. Rep. 573; Huntington v. Nicoll, 3 Johns. 586; Harmar v. Gwynne, 5 M'Lean, 313.

on

Declaration in Ejectment. For that one [the lessor and real plaintiff] had demised to John Doe the following real estate situated in said county, to wit [describe the land], together with the appurtenances, for the term of years from the date aforesaid, which is not yet expired; by virtue of which demise the said John Doe entered into possession thereof for the said term; and Richard Roe afterwards, to wit, at the county aforesaid, with force and arms entered into the said demised premises, and ejected the said John Doe therefrom, and other wrongs to him then and there did, against the peace. Notice. To [the person in possession and real defendant]. Sir, I am informed that you are in possession of, or claim title to, the premises in the above declaration mentioned, or some part thereof; and I, being sued in this action as casual ejector only, and having no claim to the said premises, do advise you to appear at the next term of the [describe the court], to be holden in said county, on the , by some attorney of said court, and by a rule of said court, to cause yourself to be made defendant in my stead; otherwise I shall suffer judgment by default, and you will be turned out of possession.

Consent Rule and Plea. The defendant comes and confesses the lease, entry, and ouster in the declaration mentioned, and admits himself to be in possession of the premises therein described, and says that he is not guilty of the trespass and ejectment complained of.

silently taken the place of all real actions, strictly so called. EjectInent was not originally designed for trying the title to land; but has been adapted to this object by means of a series of fictions. In arriving at its present state, it has passed through three distinct stages. At first, it was only used by the lessee of land, who had been ejected or ousted therefrom by a stranger, to recover damages for the ouster. We have seen that in early times a lessee for years had no security for the permanence of his title. As against the lessor, if there was no covenant for quiet enjoyment, the lessee was without remedy; for the lessor could not be treated as a trespasser. But if the ejector was a stranger, the lessee might sue him for the ejectment in an action of trespass, and recover damages, but not possession of the land. In process of time, however, the courts of chancery undertook to compel the ejector, unless he could justify the ejectment under a superior title, to make restitution of the land to the lessee. In this the courts of law soon followed them, though without altering the form of the action. The next stage, therefore, was to enlarge its scope, so as to enable the lessee to recover possession of the land for the unexpired term, as well as damages for the ouster. But for this purpose it was necessary to show a better title than the ejector, which incidentally brought up for examination the title of the lessor, since the lessee could have no other title than that derived from him. In this state of things it was perceived by the lawyers that, by recourse to several fictions, the trial of the lessor's title might be made the direct and main object of the action, instead of being an incidental circumstance. For this purpose there were only wanting a fictitious lessee, a fictitious ejector, and a fictitious ouster: and for the sake of getting rid of the almost endless technicalities and subtleties of real actions, the courts readily sanctioned the introduction of these fictions, which have now been acquiesced in for more than three centuries; and the result is, that if I claim title to a piece of land of which you are in possession, I begin by serving upon you a declaration and notice, which in this action takes the place of a writ. The declaration states that I made a lease or demise to a fictitious person, say John Doe; that he entered into possession; and that another fictitious person, say Richard Roe, forcibly ejected or ousted him from the premises. Thus John Doe becomes the nominal plaintiff, and Richard Roe the nominal defendant. But appended to this declaration is a notice purporting to be written by Richard Roe to you, informing you that he has been sued, but that being a casual ejector only he shall not defend, and advising you to appear and defend. This the court will permit you to do, by entering into a consent rule, by which you confess the fictions of a lease, entry, and ouster, as alleged in the declaration, and agree to try the question of title only. Such is the circuitous manner in which one of the most important actions is made to effect its purpose. The form still remains that of trespass to recover damages for the ouster; but these damages are now merely nominal. You cannot even recover, in

this action, the intermediate profits of the land, while the defendant has been in the unlawful possession of it; but must bring a separate action of trespass for mesne profits. Nor is a final judgment in ejectment conclusive of the controversy, as it is in other cases. Ordinarily, a final judgment is conclusive between the same parties, in relation to the same matter. But in ejectment, the parties, being fictitious, may be changed at will, and the same matter litigated again, until a court of chancery should interfere by injunction. While, therefore, much has been gained by thus superseding real actions, a still further improvement would be to abolish these fictions, and so shape the action as to recover not only possession, but mesne profits.

§ 209. Analysis of Wrongs and Remedies. I have thus glanced at the various actions by which civil remedies are administered. Perhaps you will now be tempted to inquire, what necessity there is for such a variety? Why one action of contract would not answer all the purposes of three? Why the five actions of tort might not be reduced to two; namely, one for the recovery of the specific thing, and the other for the recovery of damages for injury or detention? And why the action of ejectment would not be equally efficient and still more conclusive when divested of its circuitous and fictitious character? It might be difficult to satisfy a philosophic mind that all these changes would not be improvements. If the forms of civil redress were now for the first time to be prescribed, and the task were committed to capable men, it is not probable they would much resemble those in present use; because no analysis, either of contracts or torts, would produce such a result. If each minute difference were to require a peculiar form, the number would be infinitely greater. If not, there would be no reason for making it so great. But these forms have come down to us through the lapse of centuries; and by the various contrivances before alluded to, they have been gradually moulded and extended so as to meet the increasing wants of civilization; and the true question now is, whether a reform be on the whole expedient? No doubt this part of the law is susceptible of great simplification; and it is equally clear that a consolidation of the forms of action would render litigation much less expensive. It would likewise go far to exculpate the remedial part of the law from the charge of unnecessary intri cacy and technicality. The number of cases decided upon mere questions of form would be vastly diminished. Fictions would no longer occupy the place they now so unworthily hold in the administration of justice, and the common law would approximate more nearly to the common sense of mankind. But would these advantages compensate for the evil always attendant upon any radical reform in jurisprudence? Upon this grave question the inexperienced may well hesitate; for it now divides the best opinions of the age. But one can hardly help wishing that the experiment might be made; for as the system now exists, it probably takes more time

to become familiar with the forms of law, than to comprehend its abstract principles. Should these suggestions have no other effect, I trust they will stimulate your curiosity to examine the more carefully whether the evils alluded to really exist. In the mean time, before describing the proceedings in these actions, I shall give a brief analysis of the wrongs they are designed to redress, with a view to impress the scope and purpose of each more deeply on the memory. We have before seen that all wrongs have relation either to the person or property, and that those of a more atrocious character than ordinary are punished as crimes; but the present inquiry will be confined to civil injuries.

Wrongs relating to the Person. These are either to the body, liberty, health, reputation, or domestic comfort of individuals. 1. If one unlawfully threaten me with bodily harm, so as to interrupt my business, I may sue him in trespass, and recover damages for such interruption, although mere threats, which do not interrupt business, furnish no cause of action. Here, then, the interruption is the injury, and must be specially counted upon under what is called a per quod, or special allegation. Again, if one unlawfully assault me, that is, attempt or offer to beat me, though my business be not interrupted, I may sue him in trespass, and recover damages for assault merely; for here is something more than mere threats. Again, if one unlawfully beat me, I may sue him in trespass and recover damages for such battery. Every battery, of course, includes an assault, and hence this injury is commonly called an assault and battery. The degree of violence is of no further consequence than to enhance or reduce the damages; for if one barely touch me unlawfully, it is a battery; and it is no more than a battery, if he wound, maim, or otherwise hurt me, to the very verge of taking life. But the damages to be recovered will be in proportion to the injury; and very exemplary or vindictive damages are often recovered, under the name of smart money. I am, of course, supposing that there is no justification for the wrong thus done. For the law permits a parent, master, guardian, or teacher, in reason and moderation, to correct his child, apprentice, ward, or pupil, without becoming a trespasser. So one may defend himself, his property, wife, child, ward, servant, or pupil, against an unlawful attack, if he use no unnecessary violence, without becoming a trepasser. Here the defence is termed son assault demesne, meaning that the plaintiff made the first assault. 2. The only wrong to one's liberty, is the unlawfully depriving him of it; and it makes no difference whether this be done by confining him in prison or in a private house, or by forcibly detaining him anywhere else. The injury thus done is termed a false imprisonment, and the remedy is by an action of trespass, because in any unlawful detention of another, the law presumes force. Nor is the time or manner of the detention material, except to increase or diminish the amount of damages, which are often very great. In addition to this, we have before seen that a speedy restoration to liberty may be had