JOHN DOE AND RICHARD ROE

Old English law being full of fictions, had pressing need ever and anon of imaginary characters to play imaginary parts. Sometimes a name was picked at random from the street, and Smith, you hear without surprise, was in great request, or, as those shadows came and went in couples, you find Richard Smith as often as not paired with William Styles. But your ancient scribe lusted after quaintness. He loved a jingle, so names like John Den and Richard Fen—rare in actual life—peopled his parchment, and strove for mastery in his mock combats. But his prime favourites were Doe and Roe, nor would he raise Den or Fen or any other ghost, excepting he had need of more than two. Here is a simple instance of their use. In early times a man who commenced an action had to give surety that he would go on with it; nowadays, if he discontinue, he must pay the costs of the other side, but costs, incredible as it may sound, were not always the necessary shadow, or perhaps the substance, of law; and hence the need for the pledge. Under Edward III. the practice went out of use, but the form of it, as legal forms are apt to do, lingered on for centuries in this style:—

In the old Action of Ejectment the pair were most active. So strange were their gambols that even the lay world was impressed. In the early years of Victoria John and Richard were common butts of popular satire. Nothing seemed more gratuitous, more idly superfluous; but, turn to their history, and you find how important and how serviceable were the parts they once played.

One must begin far back. In early feudal times the cultivator of another's land was either a serf or a person of no importance, holding at his lord's will. The tenant's position improved with the times, leases were granted, and if their conditions were broken, a Writ of Covenant, as the form of action was called, secured him in possession, and gave him damages for his wrongs. But this action lay, as the technical term is, between the original parties alone; so that if he were turned out by a complete stranger, or by a person claiming through another grant of the same landlord, his remedy was merely pecuniary. In the time of Henry III. a writ was invented giving him full protection against anyone interfering under colour of another lease from his lord: but the case of an Ouster (or dispossession) by an utter stranger was not adequately provided for until the beginning of Edward III.'s reign, when the writ of Ejectio FirmÆ, or ejectment, was adapted from the proceeding in trespass. It called upon the wrong-doer of every species to show why, "with force and arms," he had entered on and taken possession of the plaintiff's land. But, again, the result was only money damages: so that he was driven for relief to the equitable jurisdiction of the Chancellor, who, by injunctions and so forth, secured him in, or restored him to, possession of the very land itself. Presently the Common Law Courts took it ill that so much of their legitimate business should go elsewhere; and, at the end of the fifteenth century, they allowed the term itself, as well as damages for the Ouster, to be recovered under a Writ of Ejectment, and this remedy was held proper against every species of wrong-doer.

And if, not the tenant, but the landlord himself, were deprived of his property? or, if anyone not in possession claimed a piece of land as his freehold? These forms of procedure were not available, since they were personal actions, and a claimant to the freehold must proceed by a real action. These last were in early times the most important of all. But their forms were numerous and varied (the assizes of morte d'ancestor and novel disseisin, as they were called in old law French, were two of the best known), and their cumbersome and complicated technicalities were cause of much expense, irritation, and delay. At last it occurred to some ingenious, though forgotten, jurist so to twist this Writ of Ejectment, which had all the last improvements, as to make it available in an action for the recovery of the freehold. That was done in this way. A. was (let us suppose) the legal and rightful owner of an estate occupied in fact by B.; he entered on the land with C., to whom he, then and there, signed, sealed, and delivered a lease for the property in question; to them so engaged entered B., attracted by their manoeuvring, and speedily kicked both into the boundary ditch. Here were all the materials for the action of ejectment, since C. might truly declare himself dispossessed vi et armis by B. from land whereof he held a lease from A. In this action the main point evidently was: Had A. a right to grant C. the lease? In other words, was A. the real owner of the land? If the jury said "Yes," then judgment for possession followed for C., who, being merely the nominee of A., forthwith passed the property over to him. Improvements were speedily suggested. Actual ejection was like to prove unpleasant, so A. and C., instead of ostentatiously soliciting B.'s attention, took with them a confederate D., who, in a friendly and affable manner, performed the function of a chucker-out, and this casual ejector (as they named him) was made nominal defendant in the action wherein C. was nominal plaintiff. Lest B. should be condemned unheard, it was provided that the casual ejector must give him notice of the proceedings, whereupon he was let in to defend in place of D. This device was a brilliant practical success. Real actions pure and simple fell speedily into disuse, though it was not till 1833 that, with a few exceptions further tampered with in 1860, they were legally abolished.The Commonwealth was a time of legal as well as political change. The Lord Protector had, with quaint emphasis, described the Court of Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice of the Upper Bench, before and since known as the King's Bench, laid violent hands on the action of ejectment. "What," urged he in effect, "was the use of actual entry, lease and ouster? Let all be held as done: so that the Court may apply itself at once to the real question at issue." Finally, the action was in name Doe against Roe, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. The declaration stated that the land in question had been demised by A. (the real claimant) to John Doe; but that Richard Roe had entered thereon by force and arms and ejected him, "to the great damage of the said John Doe, and against the peace of our Lord the now King;" and that therefore he brought this action. To this there was appended a letter, signed "your loving friend Richard Roe," addressed to B., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (Richard), being sued "as a casual ejector only, and having no title to the same," he advised him (B.) to enter appearance as defendant, "otherwise I shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." Now, to succeed in his action, the plaintiff must clearly prove four things—Title, Lease, Entry, and Ouster; and the three last he could not do, since they never happened. This little difficulty was got over by a consent rule: the Courts allowed B. to take Richard Roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained.

So strangely had this action varied from its first use—which was to recover damages for wrongful possession of land—that in the result these were nominally estimated at a shilling; and if A. really wished to make B. disgorge the spoils of possession, he sued him again for Mesne Profits. Although the action was nominally "Doe against Roe," the cases are usually cited as "Doe on the demise of A." (the real plaintiff) "against B." (the real defendant), and whilst John and Richard were the favourite styles, we have occasionally "Good Title against Bad Title": a comically impudent begging of the question at issue. If the outside public mocked these venerable figures, par nobile fratrum, the suitor did so at his peril. A certain Unitt (temp. George I.), being served with a copy of a Declaration in Ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. So the masque of shadows went on till 1852, when the Common Law Procedure Act removed an obstacle which lawyers had walked round for centuries, and consigned John Doe and Richard Roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust.