advise his clients, or insure success in the forum, is less a thorough knowledge of the statute, of the English common law, or even of the ipse dixit of a standard author on the subject in question, than to be able to point out what has been decided by the courts in the State of the forum, or in a sister State, or by a Federal court, upon such point, or upon an analogous or cognate subject. Have he ever so clear an insight into the precise meaning of the statute, understand he ever so thoroughly the meaning of the standard author, or the common law, the advice to his clients cannot be safely based on such knowledge alone, for in the forum the chances are that all those authorities will succumb to the citation of a late decision of some American court. Unless, then, the American text-book cite or quote the authority upon which it asserts any proposition, its chief utility will be lost to the practitioner." writer, speaking of substantive law, says: "It consists of legal principles, lying above, and beneath, and around, and amid the decisions." A During the several years employed in the preparation of this volume the author has had free access to the Law Library at Washington, D. C., and has spared no pains in sifting and collecting the numerous authorities, both in England and America. The encouragement thus far received, from so large a number of the profession, tends greatly to alleviate the apprehension felt at the beginning of this effort; and, fully conscious of some defects and errors, this volume is submitted to the public, with the hope that at least some good has been done within the range contemplated in the enterprise. ASHEVILLE, N. C., July, 1883. W. H. MALONE. The Separate Estate of the Wife in Real Property-Modes of charg- ing the same by Contract, Express or Implied-Her Rights, Lia- REAL PROPERTY TRIALS. CHAPTER I. THE ACTION OF EJECTMENT. In a treatise on real property trials the action of ejectment, in some or all of its forms and changes, must necessarily have a conspicuous position. In order to better understand the legal remedies to recover land, employed at the present day, the form, nature, and fundamental principles of the technical action of ejectment should be thoroughly understood. In the early ages of Europe, when the public wealth consisted mostly of lands, the importance and necessity for some remedy to recover that possession which was lost by the wrongful act of the trespasser, was felt and acknowledged. The difference between personal and real property necessarily required a different kind of action and a different mode of redress. In the case of goods and chattels, if taken away and destroyed, the remedy was by an action against the person of the trespasser, and all he could recover was compensation in money, by way of damages, or in some article of equal value.* While in the case of land, if the owner be ejected the land remained where it was, and he is entitled to be restored to the possession by the enforcement of the appropriate remedy. The great feudal system was introduced into England by the Norman Conquest in the eleventh century, which continued until the restoration of Charles II., during which period the disputes about land were almost entirely between lords and tenants, and but little attention had been given to controversies respecting the absolute title to the same. What is known as the feudal system seems to have originated in the * Williams's Law of Real Property. |