Abstract
Fictional ejectment evolved under Elizabeth I and morphed into a completely new form at the beginning of the Commonwealth. At a much later stage openly fictitious names were used. Baker has asserted that the origins of fictions are inherently unknowable, and an attempt is made to explore the origins of these three forms of ejectment to see whether the available evidence supports his view of the genesis of fictions. Attention will then turn to the end of the fictional action in 1852 when it moved to an ‘honest’ basis of jurisdiction. Fictions can be seen as scaffolding which supports case law development but which becomes obsolete once the building is complete. The procedural mechanism used to mould leasehold ejectment into a form suitable for testing freehold titles represents the scaffolding. If the metaphor holds good, it should be possible to discard this mechanism without affecting the substance of the action. Abolition of the fiction was not wholly successful because removal of the scaffolding left an unfinished building.
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- 1.
A partially fictionalised lease appears early on in Griffyn v. Leonard (Baker 1993, p. 129, c. 1566) in which the defendant was the custos of the brevium of the Bench and was presumably not genuinely interested in the litigation.
- 2.
During the Parliamentarian period it was indicated that the master was the appropriate defendant when the servant was in possession: Michaelmas 1647 and Easter 1648: Style 1657, pp. 110–111.
- 3.
I must acknowledge the exceptional help I received from Joy Caisley, law librarian of Southampton Law School, in finding materials for this essay.
- 4.
This Rule could not be avoided by a collusive release between the claimant and the casual ejector: Keys v. Brandon Raym. T. 93 (also referring to Leicester v. Holborn).
- 5.
The chronology is complicated by the retention of the Julian calendar at the time under which the year ended on March 24th; the King was executed in January 1648 (old style) but 1649 (new style).
- 6.
Capitalisation has been modernised in order to emphasise the Rule/rule dichotomy.
- 7.
This is dated inconsistently both to Michaelmas 23 Car. (= 1647) and to B.S. (= Upper Bench); the latter makes more sense and if so the decision may date from 1649.
- 8.
Sedgwick and Wait 1909, p. 627 give the date as 1625, a most unfortunate typo since it was actually decided in 1652.
- 9.
In King’s Bench costs for the preparation of the lease were disallowed, whereas in Common Pleas the costs of lease were allowed despite the lease being confessed, a situation which for a time threatened to divert the whole business of ejectment to Common Pleas.
- 10.
There were four exceptional cases where this “new practice” described in Style’s Register could not be used and an ejectment lease remained essential, notably when the property was vacant. This was decided in Harvey v. Mountnet, (Style 1657, p. 425) and confirmed after the restoration (Cooke 1747: Trinity 1662, 14 Car. II).
- 11.
Indeed the interests of the King were best served by preserving the lands of the rebels, since their property was forfeited when they were attainted for treason; much of the rebels’ property was assigned to the Duke of York, afterwards James II.
- 12.
According to the definition offered by Del Mar (this volume, Chap. 11) consciousness of falsity is not required for a fiction, and in any event it is clear that after the Restoration, at least, the courts were turning a blind eye to fictitious parties.
- 13.
Recognisances were required before proceeding in error; O Bridgman who reported in the first 6 years of the Restoration has two cases (at 464 and 475) of recongisances of £ 1000 and £ 2000, huge sums at the time.
- 14.
A similar view was taken of the Judicature reforms of 1873–1875: Gledhill v Hunter (1880) 14 Ch. D. 492, Jessel M.R.
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Sparkes, P. (2015). Ejectment: Three Births and a Funeral. In: Del Mar, M., Twining, W. (eds) Legal Fictions in Theory and Practice. Law and Philosophy Library, vol 110. Springer, Cham. https://doi.org/10.1007/978-3-319-09232-4_13
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