As is well known, English practice in the eighteenth-century, as a general matter, was to try title to land by means of a variety of the action on the case known as ejectment. For historical reasons, the English action of ejectment was framed in the form of a claim by a lessee of the land that he or she had been ejected from the land. By the eighteenth-century, the lease, in many, but not all, cases, was fictional as was the lessee. The case was described as John Doe on the demise (i.e., lease) of X (the real party at interest) v Y (the defendant). In some cases colonial practice followed this form, and colonial laywers seem to have been quite imaginative in devising names for the fictitious lessee. We find, for example, ‘Timothy Thrustout’ and ‘Crispin Heeltap’. There are seven ejectment cases in our reports that involve a ficititious lessee (4 from Virginia, 2 from Pennsylvania, and 1 from Maryland) and three (1 from East Jersey and 2 from Virginia) where the lessee may be a real person, but the lease is probably fictitious or entered into solely for the purpose of setting up the action. See the list below.

There are, however, an additional thirty-seven cases (38 if one counts actions rather than cases) where the Privy Council registers mention ejectment or its equivalent but where, for the most part, the fiction does not seem to be being used. Twenty-one of these cases describe the action as ‘trespass and ejectment’ (1 from Maryland, 2 from Massachusetts, 15 from Rhode Island, 3 from Virginia). That a form of trespass should be being used to try title is not surprising. Such actions are found in England even before ejectment in its eighteenth-century form came into common use. Only three of these mention a lease, one of which is probably genuine (Maryland), one of which is dubious (Virginia), and one of which is clearly fictional (Virginia).

How the colonial action of trespass and ejectment worked can only be determined by careful study of the surviving colonial records. The practice may have varied from colony to colony, perhaps even within colonies, and it may well have varied over time. A hint, however, about how it might have worked is contained in four cases that are not described as ‘trespass and ejectment’ but as ‘declaration in/of ejectment’ (2 from Massachusetts and 2 from Rhode Island). This action may have begun as an ordinary action of trespass to land, but when the parties came into court, the plaintiff made a declaration (the initial pleading in eighteenth-century practice) in ejectment. By the time that the case reached the Privy Council the fictitious lessee, if one was ever alleged, was forgotten, and the case was styled simply as X v Y, the person claiming ownership against the possessor.

That leaves sixteen actions that are not called ‘trespass and ejectment’, but where ejectment or its equivalent is mentioned, and no lease is mentioned. It is possible, perhaps even likely, that many of these actions, too, were either ones that the Privy Council registers elsewhere call ‘trespass and ejectment’ or some other form of action that allowed the plaintiff to set up an action to try title without using the fictitious lessee.

Listed below are the forty-seven cases (48 actions) in which ejectment or its equivalent is mentioned, giving the report number, case name and colony, the term used to describe the action in the Privy Council register, and a statement about the presence or absence of a lease. In some cases, this is followed by a note, supplementary to those found in the report, that is specific to the case. The classification is quite speculative, as is the characterization of some of the actions. It could well be upset by further study of the colonial court records. That said, the 48 actions break down as follows: 7 ejectment actions with fictitious lessees; 3 ejectment actions with what are probably real persons named as lessees but where we may doubt the reality of the lease; 21 trespass and ejectment actions, 3 of which involve a lease (1 probably genuine, 1 dubious, and 1 fictitious) and 18 of which mention no lease; 16 actions described as ejectment (or its equivalent, including 4 described as ‘declaration in/of ejectment’) in which no lease is mentioned and which probably are the same as, or the equivalent of, what the Privy Council register elsewhere calls ‘trespass and ejectment’; and 1 equity action to enjoin ejectment actions.

Also included is one case (06_1701_00 Allen v Waldron), where ejectment is not mentioned, but which poses some puzzles about an original action concerning rights in land.

While Sharon O’Connor takes no responsibility for the legal historical conclusions suggested here, I would like to acknowledge her assistance in the preparation of this memo. She saved me from three potentially embarrassing errors and a number of infelicities. Those that remain are my own.

Charles Donahue, Jr.