Jackson ex dem. Clowes v. Hakes

Headnote

An ejectment is merely a possessory remedy, and tlierefore if a landlord, in possession, "bring it to bar the right of his absconding lessee, it cannot bo maintained.

Woodworth (Attorney-General) moved to set aside tbe judgment and execution in tbis cause for irregularity, on affidavits, tbe facts of wbicb were shortly these:

Tbe defendant, being a tenant, absconded whilst rent was in arrear, upon wbicb tbe lessor of tbe plaintiff took possession of tbe premises, and, when thus in perfect enjoyment of them, brought an ejectment under tbe 23d section of tbe

act “ concerning distresses,” &c. (1 Bev. Laws, 142,) in order to bar tbe tenant’s right under the lease,,, as if the premises had been then vacant.

that though the lessor of the plaintiff was then actually in the occupation of the lands, they were, even as to him, in the eye of the law, regarded as vacant, because the only possession known to the law was that of the tenant. That if this were not so, the landlord of an absconding tenant would be in a worse situation when in possession of the demised property than when out of possession ; because, if he was out of possession, he might, after a suit and lapse of six months, get into the possession and keep it; but if in possession, he was never sure of retaining it, as the tenant might, at any time, turn him out. From these considerations he insisted that the only mode of barring the interest of the lessee was by adopting such proceedings as he had in (he present case advised. , That they were grounded *on an affidavit which was framed, with the caution necessary, to comport with the peculiar situation of the lessor of the plaintiff, who could not swear there was no sufficient distress on the premises, because his own cattle 'were there, but that there was no sufficient distress belonging to the tenant.