PRIVATE WRONGS.
BOOK III.

CHAPTER THE TENTH.

OF INJURIES TO REAL PROPERTY, AND
FIRST OF DISPOSSESSION, OR OUSTER,
OF THE FREEHOLD.

I COME now to confider fuch injuries as affect that fpecies of property which the laws of England have denominated real; as being of a more fubftantial and permanent nature than thofe tranfitory rights of which perfonal chattels are the object.

REAL injuries then, or injuries affecting real rights, are principally fix; 1. Oufter; 2. Trefpafs; 3. Nufance; 4. Wafte; 5. Subtraction; 6. Difturbance.

OUSTER, or difpoffeffion, is a wrong or injury that carries with it the amotion of poffeffion: for thereby the wrongdoer gets into the actual occupation of the land or hereditament, and obliges him that hath a right to feek his legal remedy; in order to gain poffeffion, and damages for the injury fuftained. And fuch oufter, or difpoffeffion may either be of the freehold, or of chattels real. Oufter of the freehold is effected by one of the following methods: 1. Abatement; 2. Intrufion; 3. Diffeifin; 4. Difcontinuance; 5. Deforcement. All of which in their order, and afterwards their refpective remedies, will be confidered in the prefent chapter.
1. AND,
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1. AND, firft, an abatement is where a perfon dies feifed of an inheritance, and before the heir or devifee enters, a ftranger who has no right makes entry, and gets poffeffion of the freehold: this entry of him is called an abatement, and he himfelf is denominated an abator ^a. It is to be obferved that this expreffion, of abating, which is derived from the French and fignifies to quafh, beat down, or deftroy, is ufed by our law in three fenfes. The firft, which feems to be the primitive fenfe, is that of abating or beating down a nufance, of which we fpoke in the beginning of this book ^b: and in a like fenfe it is ufef in ftatute Weftm. 1. 3 Edw. I. c. 17. where mention is made of abating a caftle or fortrefs; in which cafe it clearly fignifies to pull it down, and level it with the ground. The fecond fignification of abatement is that of abating a writ or action, of which we fhall fay more hereafter: here it is taken figuratively, and fignifies the overthrow or defeating of fuch writ, by fome fatal exception to it. The laft fpecies of abatement is that we have now before us; which is alfo a figurative expreffion, to denote that the rightful poffeffion or freehold of the heir or devifee is overthrown by the rude intervention of ftranger.

THIS abatement of a freehold is fomewhat fimilar to an immediate occupancy in a ftate of nature, which is effected by taking poffeffion of the land the fame inftant that the prior occupant by his death relinquifhes it. But this however agreeable to natural juftice, confidering man merely as an individual, is diametrically oppofite to the law of fociety, and particularly the law of England: which, for the prefervation of public peace, hath prohibited as far as poffible all acquifitions by mere occupancy; and hath directed that lands, on the death of the prefent poffeffor, fhould immediately veft either in fome perfon, expreffly named and appointed by the deceafed, as his devifee; or, on default of fuch appointment, in fuch of his next relations as the law hath felected and pointed out as his natural reprefentative or

.{FS}
^a Finch. L. 195.
^b page 5.
.{FE}
heir.
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heir. Every entry therefore of a mere ftranger, by way of intervention between the anceftor and heir or perfon next entitled, which keeps the heir or devifee out of poffeffion, is one of the higheft injuries to the rights of real property.

2. THE fecond fpecies of injury by oufter, or amotion of poffeffion from the freehold, is by intrufion: which is the entry of a ftranger, after a particular eftate of freehold is determined, before him in remainder or reverfion. And it happens where a tenant for term of life dieth feifed of certain lands and tenements, and a ftranger entereth thereon, after fuch death of the tenant, and before any entry of him in remainder or reverfion ^c. This entry and interpofition of the ftranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devifee; an intrufion is always to the prejudice of him in remainder or reverfion. For example; if A dies feifed of lands in fee-fimple, and, before the entry of B his heir, C enters thereon, this is an abatement; but if A be tenant for life, with remainder to B in fee-fimple, and, after the death of A, C enters, this is an intrufion. Alfo if A be tenant for life on leafe from B, or his anceftors, or be tenant by the curtefy, or in dower, the reverfion being vefted in B; and after the death of A, C enters and keeps B out of poffeffion, this is likewife an intrufion. So that an intrufion is always immediately confequent upon the determination of a particular eftate; an abatement is always confequent upon the defcent or devife of an eftate in fee-fimple. And in either cafe the injury is equally great to him whofe poffeffion is defeated by this unlawful occupancy.

3. THE third fpecies of injury by oufter, or privation of the freehold, is by diffeifin. Diffeifin is a wrongful putting our of him that is feifed of the freehold ^d. The two former fpecies of injury were by a wrongful entry where the poffeffion was vacant; but his is an attack upon him who is in actual poffeffion, and turning him out of it. Thofe were an oufter from a freehold in

.{FS}
^c Co. Litt. 277. F. N. B. 203, 204.
^d Co. Litt. 277.
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law;

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law; this is an oufter from a freehold in deed. This may be effected either in corporeal inheritances, or incorporeal. Diffeifin, of things corporeal, as of houfes, land, &c, muft be by entry and actual difpoffeffion of the freehold ^e; as if a man enters either by force or fraud into the houfe of another, and turns, or at leaft keeps, him and his fervants out of poffeffion. Diffeifin of incorporeal hereditaments cannot be an actual difpoffeffion; for the fubject itfelf is neither capable of actual bodily poffeffion, nor difpoffeffion: but is depends on their refpective natures, and various kinds; being in general nothing more than a difturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our antient law-books ^f mentioned five methods of working a diffeifin thereof: 1. By enclofure; where the tenant fo enclofeth the houfe or land, that the lord cannot come to diftrein thereon, or demand it: 2. By foreftaller, or lying in wait; when the tenant befetteth the way with force and arms, or by menaces of bodily hurt affrights the leffor from coming: 3. BY refcous; that is, either by violently retaking a diftrefs taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the diftrefs at fuch time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of thefe circumftances work a diffeifin of rent: that is, they wrongfully put the owner out of the only poffeffion, of which the fubject-matter is capable, namely, the receipt of it. And all thefe diffeifins, of hereditaments incorporeal, are only fo at the election and choice of the party injured; if, for the fake of more eafily trying the right, he is pleafed to fuppofe himfelf diffeifed ^g. Otherwife, as there can be no actual difpoffeffion, he cannot be compulfively diffeifed of any incorporeal hereditament.

AND fo too, even in corporeal hereditaments, a man may frequently fuppofe himfelf to be diffeifed, when he is not fo in

.{FS}
^e Co. Litt. 181.
^f Finch. L. 165, 166. Litt. §. 237, &c.
^g Litt. §. 588, 589.
.{FE}
fact,
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fact, for the fake of intitling himfelf to the more eafy and commodious remedy of an affife of novel diffeifin, (which will be explained in the fequel of this chapter) inftead of being driven to the more tedious procefs of a writ of entry ^h. The true injury of compulfive diffeifin feems to be that of difpoffeffing the tenant, and fubftituting onefelf to be the tenant of the lord in his ftead; in order to which in the times of pure feodal tenure the confent or connivance of the lord, who upon every defcent or alienation perfonally gave, and who therefore alone could change, the feifin or inveftiture, feems to have been antiently neceffary. But when in procefs of time the feodal form of alienations wore off, and the lord was no longer the inftrument of giving actual feifin, it is probable that the lord's acceptance of rent or fervice, from him who had difpoffeffed another, might conftitute a complete diffeifin. Afterwards, no regard was had to the lord's concurrence, but the difpoffeffor himfelf was confidered as the fole diffeifor: and this wrong was then allowed to be remedied by entry only, without any form of law, as againft the diffeifor himfelf; but required a legal procefs againft his heir or alienee. And when the remedy by affife was introduced under Henry II, to redrefs fuch diffeifins as had been committed within a few years next preceding, the facility of that remedy induced others, who were wrongfully kept out of the freehold, to feign or allow themfelves to be diffeifed, merely for the fake of the remedy.

THESE thee fpecies of injury, abatement, intrufion, and diffeifin, are fuch wherein the entry of the tenant ab initio, as well as the continuance of his poffeffion afterwards, is unlawful. But the two remaining fpecies are where the entry of the tenant was at firft lawful, but the wrong confifts in the detaining of poffeffion afterwards.

4. SUCH is, fourthly, the injury of difcontinuance; which happens when he who hath an eftate-tail, maketh a larger eftate of the land than by law he is intitled to do ^I: in which cafe the

.{FS}
^h Hengh. paru. c. 7. 4 Burr. 110.
i Finch. L. 190.
.{FE}
X 2
eftate
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eftate is good, fo far as his power extends who made it, but no farther. As if tenant in tail makes a feoffment in fee-fimple, or for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a leafe for his own life: here the entry of the feoffee is lawful during the life of the feoffor; but if he retains the poffeffion after the death of the feoffor, it is an injury, which is termed a difcontinuance; the antient legal eftate, which ought to have furvived to the heir in tail, being gone, or at leaft fufpended, and for a while difcontinued. For, in this cafe, on the death of the alienors, neither the heir in tail, nor they in remainder or reverfion expectant on the determination of the eftate-tail, can enter on and poffefs the lands fo alienated. Alfo, by the common law, the alienation of an hufband who was feifed in the right of his wife, worked a difcontinuance of the wife's eftate: till the ftatute 32 Hen. VIII. c. 28. provided, that no act by the hufband alone fhould work a difcontinuance of, or prejudice, the inheritance or freehold of the wife; but that, after his death, fhe or her heirs may enter on the lands in queftion. Formerly alfo, if an alienation was made by a fole corporation, as a bifhop or dean, without confent of the chapter, this was a difcontinuance ^j. But this is now quite antiquated by the difabling ftatutes of 1 Eliz. c. 19. and 13 Eliz. c. 10. which declare all fuch alienations abfolutely void ab initio, and therefore at prefent no difcontinuance can be thereby occafioned.

5. THE fifth and laft fpecies of injuries by oufter or privation of the freehold, where the entry of the prefent tenant or poffeffor was originally lawful, but his detainer is now unlawful, is that by deforcement. And this, in it's moft extenfive fenfe, is nomen generaliffimum; being a much larger and more comprehenfive expreffion than any of the former, and fignifying the holding of any lands or tenements to which another perfon have a right ^k. So that this includes as well an abatement, an intrufion, a diffeifin, or a difcontinuance, as any other fpecies of wrong

.{FS}
^j F. N. B. 194.
^k Co. Litt. 277.
.{FE}
what-
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whatfoever, whereby he that hath right to the freehold is kept out of poffeffion. But, as contradiftinguifhed from the former, it is only fuch a detainer of the freehold, from him that hath the right of property, but never had any poffeffion under that right, as falls within none of the injuries which we have before explained. As in cafe where a lord hath a feignory, and lands efcheat to him propter defectum fanguinis, but the feifin of the lands is withheld from him: here the injury is not abatement, for the right vefts not in the lord as heir or devifee; nor is it intrufion, for it vefts not in him in remainder or reverfion; nor is it diffeifin, for the lord was never feifed; nor does it at all bear the nature of any fpecies of difcontinuance; but, being neither of thefe four, it is therefore a deforcement ^l. If a man marries a woman, and during the coverture is feifed of lands, and alienes, and dies; is diffeifed, and dies; or dies in poffeffion; and the alienee, diffeifor, or heir, enters on the tenements and doth not affign the widow her dower; this is alfo a deforcement to the widow, by withholding lands to which fhe hath a right ^m. In like manner, if a man leafe lands to another for term of years, or for the life of a third perfon, and the term expires by furrender, efflux of time, or death of the ceftui que vie; and the leffee or any ftranger, who was at the expiration of the term in poffeffion, holds over, and refufes to deliver the poffeffion to him in remainder or reverfion, this is likewife a deforcement ⁿ. Deforcements may alfo arife upon the breach of a condition in law: as if a woman gives lands to a man by deed, to the intent that he marry her, and he will not when thereupon required, but continues to hold the lands: this is fuch a fraud on the man's part, that the law will not allow it to deveft the woman's right; though it does deveft the poffeffion, and thereby becomes a deforcement ^o. Deforcements may alfo be grounded on the difability of the party deforced: as if an infant, or his anceftors being within age, do make an alienation of his lands, and the alienee enters and keeps poffeffion; now, as the alienation is voidable, this poffeffion as

.{FS}
^l F. N. B. 143.
^m Ibid. 8. 147.
ⁿ Finch. L. 263. F. N. B. 201. 205, 6, 7.
^o F. N. B. 205.
.{FE}
againft
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againft the infant is wrongful, and therefore a deforcement ^p. The fame happens, when one of nonfane memory alienes his lands or tenements, and the alienee enters and holds poffeffion, this is alfo a deforcement ^q. Another fpecies of deforcement is, where two perfons have the fame title to land, and one of them enters and keeps poffeffion againft the other: as where the anceftor dies feifed of an eftate in fee-fimple; which defcends to two fifters as coparceners, and one of them enters before the other, and will not fuffer her fifter to enter and enjoy her moiety; this is alfo a deforcement ^r. Deforcement may alfo be grounded on the non-performance of a covenant real: as if a man, feifed of lands, covenants to convey them to another, and neglects or refufes fo to do, but continues poffeffion againft him; this poffeffion, being wrongful, is a deforcement ^s. And hence, in levying a fine of lands, the perfon, againft whom the fictitious action is brought upon a fuppofed breach of covenant, is called the deforciant. Thus, laftly, keeping a man by any means out of a freehold office is a deforcement: and, indeed, from all thefe inftances it fully appears, that whatever injury, (withholding the poffeffion of a freehold) is not included under one of the four former heads, is comprized under this of deforcement.

THE feveral fpecies and degrees of injury by oufter being thus afcertained and defined, the next confideration is the remedy: which is, univerfally, the reftitution or delivery of poffeffion to the right owner; and, in fome cafes, damages alfo for the unjuft amotion. The methods, whereby thefe remedies, or either of them, may be obtained, are various.

I. THE firft is that extrajudicial and fummary one, which we flightly touched in the firft chapter of the prefent book ^t, of entry by the legal owner, when another perfon, who hath no right, hath previoufly taken poffeffion of lands or tenements. In this cafe the

.{FS}
^p Finch. L. 264. F. N. B. 192.
^q Finch. ibid. F. N. B. 202.
^r Finch. L. 293, 294. F. N. B. 197.
^s F. N. B. 146.
^t See pag. 5.
.{FE}
party
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party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes poffeffion; which notorious act of ownerfhip is equivalent to a feodal inveftiture by the lord ^v: or he may enter on any part of it in the fame county, declaring it to be in the name of the whole ^u: but if it lies in different counties he muft make different entries; for the notoriety of fuch entry or claim to the pares or freeholders of Weftminfter, is not any notoriety to the pares or freeholders of Suffex. Alfo if there be two diffeifors, the party diffeifed muft make his entry on both; or if one diffeifor has conveyed the lands with livery to two diftinct feoffees, entry muft be made both ^w: for as their feifin is diftinct, fo alfo muft be the act which devefts that feifin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim, as near to the eftate as he can, with the like forms and folemnities: which claim is in force for a year and a day only ^x. And therefore this claim, if it be repeated once in the fpace of every year and day, ((which is called continual claim) has the fame effect with, and in all refpects amounts to, a legal entry ^y. Such an entry gives a man feifin ^z, or puts him into immediate poffeffion that hath right of entry on the eftate, and thereby makes him complete owner, and capable of conveying it from himfelf by either defcent or purchafe.

THIS remedy by entry takes place in three only of the five fpecies of oufter, viz. abatement, intrufion, and diffeifin ^a: for, as in thefe the original entry of the wrongdoer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a difcontinuance or deforcement, the owner of the eftate cannot enter, but is driven to his action: for herein the original entry being lawful, and thereby an apparent right of poffeffion being gained, the law will not fuffer that right to be overthrown by the mere act or entry of the claimant.

.{FS}
^v See book II. ch. 14. pag. 209.
^u Litt. §. 417.
^w Co. Litt. 252.
^x Litt. §. 422.
^y Ibid. §. 419. 423.
^z Co. Litt. 15.
^a Ibid. 237.
.{FE}
ON
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ON the other hand, in cafe of abatement, intrufion, or diffeifin, where entries are generally lawful, this right of entry may be tolled, that is, taken away, by defcent. Defcents, which take away entries ^b, are when any one, feifed by any means whatfoever of the inheritance of a corporeal hereditament, dies, whereby the fame defcends to his heir: in this cafe, however feeble the right of the anceftor might be, the entry of any other perfon who claims title to the freehold is taken away; and he cannot recover poffeffion againft the heir by this fummary method, but is driven to his action to gain a legal feifin of the eftate. And this, firft, becaufe the heir comes to the eftate by act of law, and not by his own act; the law therefore protects his title, and will not fuffer his poffeffion to be devefted, till the claimant hath proved a better right. Secondly, becaufe the heir may not fuddenly know the true ftate of his title: and therefore the law, which is ever indulgent to heirs, takes away the entry of fuch claimant as neglected to enter on the anceftor, who was well able to defend his title; and leaves the claimant only the remedy of a formal action againft the heir ^c. Thirdly, this was admirably adapted to the military fpirit of the feodal tenures, and tended to make the feudatory bold in war; fince his children could not, by any mere entry of another, be difpoffeffed of the lands whereof he died feifed. And, laftly, it is agreeable to the dictates of reafon and the general principles of law.

FOR, in every complete title ^o to lands, there are two things neceffary; the poffeffion or feifin, and the right or property therein ^e: or, as it is expreffed in Fleta, the juris et feifinae conjunctio ^f. Now, if the poffeffion be fevered from the property, if A has the jus proprietatis, and B by fome unlawful means has gained poffeffion of lands, this is an injury to A; for which the law gives a remedy, by putting him in poffeffion, but does it by

.{FS}
^b Litt. §. 385—413.
^c Co. Litt. 237.
^d See book II. ch. 13.
^e Mirror. c. 2. §. 27.
^f l. 3. c. 15. §. 5.
.{FE}
different
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different means according to the circumftances of the cafe. Thus, as B, who was himfelf the wrongdoer, and hath obtained the poffeffion by either fraud or force, hath only a bare or naked poffeffion, without any fhadow of right; A therefore, who hath both the right of property and the right of poffeffion, may put an end to his title at once, b the fummary method of entry. But, if B the wrongdoer dies feifed of the lands, then B's heir advances one ftep farther towards a good title: he hath not only a bare poffeffion, but alfo an apparent jus poffeffionis, or right of poffeffion. For the law perfumes, that the poffeffion, which is tranfmitted from the anceftor to the heir, is a rightful poffeffion, until the contrary be fhewn: and therefore the mere entry of A is not allowed to evict the heir of B; but A is driven to his action at law to remove the poffeffion of the heir, though his entry alone would have difpoffeffed the anceftor.

SO that in general it appears, that no man can recover poffeffion by mere entry on lands, which another hath by defcent. Yet this rule hath fome exceptions ^g; wherein thofe reafons ceafe, upon which the general doctrine is grounded; efpecially if the claimant were under any legal difabilities, during the life of the anceftor, either of infancy, coverture, imprifonment, infanity, or being out of the realm: in all which cafes there is no neglect or laches in the claimant, and therefore no defcent fhall bar, or take away his entry ^h. And this title, of taking away entries by defcent, is ftill farther narrowed by the ftatute 32 Hen. VIII. c. 33. which enacts, that if any perfon diffeifes or turns another out of poffeffion, no defcent to the heir of the diffeifor fhall take away the entry of him that has right to the land, unlefs the diffeifor had peaceable poffeffion five years next after the diffeifin. But the ftatute extendeth not to any feoffee or donee of the diffeifor, mediate or immediate ^I: becaufe fuch a one by the genuine feodal conftitutions always came into the tenure folemnly and with the

.{FS}
^g See the particular cafes mentioned by Littleton, b. 3. ch. 6. the principles of which are well explained in Gilbert's law of tenures.
^h Co. Litt. 246.
^I Ibid. 256.
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VOL. III.

Y

lord's

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lord's concurrence, by actual of feifin or open and public inveftiture. On the orther hand, it is enacted by the ftatute of limitations, 21 Jac. I. c.16. that no entry fhall be made by any man upon lands, unlefs within twenty years after his rihgt fhall accrue. And by ftatute 4&5 Ann. c.16. no entry fhall be of force to fatisfy the faid ftatute of limitations, or to avoid a fine levied of lands, unlefs an action be thereupon commenced within one year after, and profecuted with effect.

UPON an oufter, by the difcontinuance of tenant in tail, we have fain that no remedy by mere entry is allowed ; but that, when tenant in tail alienes the entailed, this takes away the entry of the iffue in tail, and drives him to his action at law recover the poffeffion ^k. For, as in the former cafesf the law will not fuppofe, without proof, that the anceftor of him in poffeffion acquired the eftate by wrong ; and therefore, after five years peaceable poffeffion, and defcent caft, will not fuffer the poffeffion of the heir to be difturbed by mere without action ; fo here, the law will not fuppofe the difcontinuor to have aliened the eftate without power fo to do, and therefore leaves the heir in tial to his action at law, and permits not his entry to be lawful. Befides, the alience, who came into poffeffion by a lawful conveyance, which was at leaft good for the life of the alienor, hath not only a bare poffeffion, but alfo an apparent right of poffeffion ; which is not allowed to be devefted by the mere entry of the claimant, but continues in force till a better right be fhewn, and recognized by a legal determination. And fomething alfo perhaps, in framing this rule of law, may be allowed to the inclination of the courts of juftice, to go as far as they could in making eftates-tail alienable, by declaring fuch alienations to be voidable only not abfolutely void.

IN cafe of deforcements alfo, where the deforciant had originally a lawful poffeffion of the land, but now detains it wrong-

{FS}
^k Co. Litt.325.
{FE}
fully,
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fully, he ftill continues to have the prefumptive prima facie evidence of right ; that is, poffeffion lawfully gained. Which poffeffion fhall be overturned by the mere entry of another ; but only by demanfdant's fhewing a better right in courfe of law.

THIS remedy by entry muft bu purfued, according to ftatute 5 Ric. II. ft. 1.c.8. in a peaceable and eafy manner ; and not with force or ftrong hand. For, if one turns or keeps another out of poffeffion, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate reftitution ; which puts the antient poffeffor in ftatu quo : the criminal injury, or public wrong, by breach of the king's peace, is punifhed by fine to the king. For by the ftatute 8 Hen. VI. C.9. upon complaint made to any juftice of the peace, of a forcible entry, with ftrong hand, on lands tenements ; or a forcible detainer after a peaceable entry ; he fhall try the truth of the complaint by jury, and, upon force found, fhall reftore the pofffeffion to the party fo put out : and in fuch cafe, or if any alienation be made to defrraud the poffeffor of his right, (which is declared to be abfolutely void) the offender fhall forfeit, for the force found, treble damages to the party grieved, and make fine and ranfom to the king. But this does not extend to fuch as endeavour to keep poffeffio manu forti, after three years peaceable enjoyment of either themfelves, their anceftors, or thofe under whom they claim ; by a fubfequent claufe of the fame ftatute, enforced by ftatute 31 Eliz. c.11.

II. THUS far of remedies, where the tenant or occupier of the land hath gained only a mere poffeffion, and no apparent fhadow of right. Next follow or occupier is advanced one ftep nearer to perfection ; fo htat he hath in him not only a bare poffeffion, which may be deftroyed by entry, but alfo an apparent right of poffeffion, which cannot be removed but courfe
Y 2
of
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CH. 10.

of law : in the procefs of which muft be fhewen, that though he hath at prefent poffeffion and therefore hath the prefumptive right, yet here is a right of poffefion, fuperior to his, refiding in him who brings the action.

THESE remedies are either by a writ of entry, or an affife : which are actions merely poffeffory ; ferving only to regain that poffeffion, whereof the demandant (that is, he who fues for the land) or his anceftors have been unjuftly deprived by the tenant or poffeffor of the freehold, or thofe under whom he claims, They meddle not with the right of property ; only reftoring the demandant to that ftate or fituation, in which he was (or by law ought been) before the difpoffeffion committed. But this without any prejudice to the right of ownerfhip : for, if the difpoffeffor has any legal, he may afterwards exert it, not withftanding a recovery had againft him in thefe poffeffory actions. Only the law will not fuffer to be his own judge, and either take or maintain poffeffion of the lands, until he hath recovered them by legal means ^l : rather prefuming the right to have accompanied the antient feifin, than to refide in one who had no fuch evidence in his favour.

1. THE firft of thefe poffeffory remedies is by writ of entry ; which is that which difproves the title of the tenant or poffeffor, by fhewing the unlawful means by which he entered or continues poffeffion ^m. The writ is directed to the fheriff, requiring him to “command the tenant of the land that he render (in Latin, praecipe quod reddat) to the demandant the premifes in queftion, which he claims to be his right and inheritance ; and into which, as he faith, the faid tenant hath not entry but by a diffeifin, intrufion, or the like, made to the faid demandant, within the time limited by law : or that upon refufal he do appear in court on fuch a day, to fhew wherefore he hath

{FS}
¹ Mirr.c.4.§24.
^m Finch.L.261.
{FE}
“not
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“not done it ⁿ.” This is the original procefs, the praecipe, upon which all the reft of the fuit is grounded ; and from hence it appears, that what is required of the tenant is in the alternative, either to deliver feifin of the lands, or to fhew cuafe why he will not. Which caufe may be either a denial of the fact of having entred by fuch means as are fuggefted, or a juftification of his entry by reafon of title in himfelf, or thofe under whom he makes claim : and hereupon the poffeffion of the land is awarded to him who produces the cleareft right to poffefs it.

IN our. antient books we find frequent mention of the degrees, within which writs of entry are brought. If they be brought againft the party himfelf who did the wrong, then they only charge the tenant himfelf with the injury ; “non habuit ingreffum nifi per intrufinem quam ipfe fecit.” But if the intruder, diffeifor, or the like, has made any alienation of the land to a third perfon, or it has defcended to his heir, hat circumftance muft be alleged in the writ, for the defect of his poffeffory title, whether arifing from his own wrong or that of thofe under whom he claims, muft be fet forth. One fuch alienation or defcent makes the firft ^o degree, which is called the per, bucaufe then the form of a writ of entry is this ; that the tenant had no right of entry, but by the original wrondgdoer, who alienated the land, or from whom it decended, to him : “non habuit ingreffum, nifi per Guilielmum, qui fe in illud intrufit, et illud tenenti dimifit ^p.” A fecond alienation or defcent makes an other degree called the per and cui ; becaufe the form of a writ of entry, in that cafe, is, that the tenant had no title to enter, but by or under a prior alience, to whom theintruder demifed it ; “non habuit ingreffum, nifi per Ricardum, cui Guilielmus illud dimifit, qui fe in illud intrufit ^q.” Thefe degrees thus ftate the


{FS}
ⁿ See Vol. II. append. N^o.V.§.1.
^o Finch. L.262. Booth indeed (of real actions.172.) makes the firft degree to confift in the original wrong done, the fecond in the per, and the third in the per and cui. But the difference is immaterial.
^p Booth.181.
^q Finch. L.263. F. N.B. 203, 204.
{FE}
original
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original wrong, and the title of the tenant who claims under fuch wrong . If more than two degrees, that is, two alienations or defcents were paft, there lay no writ of entry at the common law. For, as it was porvided, for the quietnefs of men's inheritances, that no none, even though he had the true right of poffeffion, fhould enter upon him who had the apparent rihgt by defcent or otherwife, but was driven to his writ of entry to gain poffeffion ; fo, after more than two defcents or two conveyances were paffed, the demandant, even though he had the right both of poffeffion and property, was not allowed this poffeffory action ;but was driven to his writ of right, a long and final remedy , to punifh his neglect on not fooner putting in his claim, while the degrees fubfifted, and for the ending of fuits, and quieting of quieting of all controverfies ^r. But by the ftatute of Marbridge 52 Hen. III. c.30. it was provided, that when the number of alienations or defcents exceeded the ufual degrees, a new writ fhould be allowed without any mention of degrees at all. And accordingly a new writ has been framed, called a writ of entry in the poft, which only alleges the injury of the wrongdoer, without deducing all the intermediate title from him to the tenant : ftating it in this manner ; that the tenant had no legal entry unlefs after, or fubfequent to, the oufter or injury done by the original difpoffeffor ; “non habuit ingreffum nifi poft intrufionem quam Guilielmus in illud fecit ;” and rightly concluding, that if the original title was wrongful al claimsderived from thence muft participate of the fame wrong. Upon the latter of thefe writs it is (the writ ofentry fur diffeifin in the poft) that the form of our common recoveries of landed eftates is ufually grounded ; which, we may remember, were obferved in the preceding volume ^s to be fictitious actions, brought againft the tenant of the freegold (ufually called the tenant to the praecipe, or writ of entry) in which by collufion the demandant recovers the land.

THIS remedial inftrument, of writ of entry, is applicable to all the cafe of oufter before-mentioned, except that of difcon-

{FS}
^r 2 Inft. 153.
^s Book II. ch.21.
{FE}
tinuance
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tinuance by tenant in tail, and fome peculiar fpecies of deforcements. Such is that deforcement of dower, by not affigning any dower to the widow within the time limited by law ; for which fhe has her remedy by a writ of dower, unde nihil ^t. But if fhe be deforced of part only of her dower, fhe cannot then fay that nihil havet ; and therefore fhe may have recourfe to another action, by writ of right of dower : which is a more general remedy, extending either to part or the whole ; and is (with regard to her claim) of the fame nature as the grand writ of right, whereof we fhall prefently fpeak, is with regard to claims in fee-fimple ^u. But in general the writ of entry is the univerfal remedy to recover poffeffion, when wrongfully withheld from the owner. It were therefore endlefs to recount all the feveral divifions of writs of entry, which the different circumftances of the refpective demandants may require, and which are furnifhed by the laws of England ^v : being plainly and clearly chalked out in that moft antient and highly venerable collection of legal forms, the regiftrum omnium brevium, or regifter of fuch writs as are fuable out of the king's court. upon which Fitzherbert's natura brevium is a comment ; and in which

{FS}
^t F.V.B.147.
^u Ibid. 16.
^v See Britton. c.114. fol. 264. The moft ufual were, 1. The writs of entry fur diffcifin and of intrufion : (F.N.B.191.203.) which are brought to remedy either of thofe fpecies of oufter. 2. The writs of dum fuit infra aetatem, and dum fuit non compos mentis : (Ibid.192.202.) which lie for a perfon of full age, or one who hath recovered his underftanding, after having (when under age or infane) aliened his lands ; or for the heirs of fuch alienor. 3. The writs of cui in vita and cui ante divortium : (Ibid. 193.204.) for a woman, when a widow or divorced, whofe hufband during the coverture (cui in vita fua, vel cui ante divortium, ipfa contradicere non potuit) hath aliened her eftate. 4. The writ ad coomunem legem : ( Ibid.207.) for the reverfioner, after the alienation and death of the particular tenant for life. 5. The writs in cafu provifo and in confimili cafu : (Ibid. 205.206) which lay not ad communem legem, but are given by ftat. Gloc. 6 Edw. I. c.7. and Weftm. 2.13 Edw. I. c.24. for the reverfioner after the alienation, but during the life, of the tenant in dower or other tenant for life. 6. The writ ad terminum qui praeteriit : (Ibid.201.) for the reverfioner, when the foffeffion is withheld by the leffee or a ftarnger, after the determination of a leafe for years. 7. The writ caufa matrimonii praelocuti : (Ibid.205.) for a woman who giveth land to a man in fee or for life, to the intent that he may marry her, and he doth not. And the like cafe of other deforcements.
{FE}
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every man who in injured will be to find a method of relief, exactly adapted to his own cafe, defcribed in the compafs of a few lines, and yet without the omiffion of any material circumftance. So that the wife adn equitabel provifion of the ftatute Weftm.2. 13.Edw. I.c.24. for framing new writs when wanted ^w, is almoft rendered ufelefs by the very great perfection of the antient forms. And indeed I know not whether it is a greater credit to our law, to have fuch a provifion contained in them, or not to have occafion, or at leaft very rarely, to ufe it.

IN the times of our Saxon anceftors, the right of poffeffion feems only to have been recoverable by writ of entry ^x ; which was then ufually brought in the county court. And it is to be obferved, that the proceedings in thefe actions were not then fo tedious, when the courts were held, and procefs iffued every three weeks, as after the conqueft, when all caufes were drawn into the king's courts, and procefs iffued from term to term ; which was found exceedidng dilatory, being at leaft four times as flow as the other, And hence a new remedy was invented in many cafes, to do juftice to the people and to determine the poffeffion, in the porper counties, and yet by the king's judges. This was the remedy by affife, of which we next to fpeak.

2. THE writ of affife is faid to have been invented by Glanvil, chief juftice to Henry the fecond ^y ; and, if fo, it feems to owe it's introduction to the parliament held at Northampton, in the twenty fecond year of that prince's reign : when juftices in eyre were appointed to go round the kingdom in order to take thefe affifes ; and the affifes themfelves (particularly thofe of mort d' anceftor and novel diffeifin) were clearly oibted out and defcribed ^z. As

{FS}
^w See pag.51.
^x Gilb. Ten.42.
^y Mirror.c.2.§.25.
^z §.9. Si dominus feodi negat haeredibus defuncti faifiram ejufdem feodi, juftitiarii domini regis faciant inde fieri recognitionem perxii legales homines, qualem faifinam defunctus inde habuit, die qua fuit vivus et mortuus ; et, ficut recognitum fuerit, ita haeredibus ejus reftituant. §.10.Tuftitiarii domini regis faciant fieri recognitionem de diffaifinis factis fuper affifam, a tempore quo dominus rex venit in Angliam proxime poft pacem factam inter ipfum et regem filium fuum. (Spelm.Cod.3303.)
{FE}
a writ
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a writ of entry is a real action , which difproves the title of the tenant, by fhewing the unlawful commencement of his poffeffion ; fo an affife is a real action, which proves the title of the demandant, merely by fhewing his, or his anceftor's fo totally alike, that a judgment or recovery in one is a bar againft the other : fo that when a man's poffeffion is once eftablifhed by either of thefe poffeffory actions, it can never be difturbed by the fame antagonift in any other ofthem. The word, affife, is derived by fir Edward Coke ^b from the Latin affideo, to fit together ; and it fignifies, originally, the jury who try the caufe, and fit together for that purpofe. By a figure it is now made to fignify the court or jurifdiction, which fummons this jury together by a commiffion of affife, or ad affifas capiendas ; and hence the judicial affemblies held by the king's commiffion in every county, s well to take thefe writs of affife, as to try caufes at nifi prius, are termed in common fpeech the affifes. By another fomewhat for recovering poffeffion of lands : for the reafon, faith Littleton ^c, why fuch writs at the beginning were called affifes, was, for that in thefe writs the fheriff is ordered to fummon a jury, or affife ; which is not exprefed in any other original writ ^d.

THIS remedy, by writ of affife, is only applicable to two fpecies of injury by oufter, viz. abatement, and a recent or novel diffeifin. If the abatement happened upon the deathe of the nephew or niece, the remedy is by an affife of mort d' anceftor, or the death of one's anceftor : and the general purport of this writ is to direct the fheriff to fummon a jury or affife, to view the land in queftion, and to recognize whether fuch anceftor were feifed thereof on the day of his death, and whether the de mandant be the next heir. And, in a fhort time after, the

{FS}
^a Finch. L.284.
^b 1 Inft.153.
^c §.234.
^d Co. Litt.159.
^e F.N.B.195. finch. L.290.
{FE}
VOL. III.
Z
judges
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judges ufually come down by the king's commiffion to take the recognition of affife : when, if thefe points are found in the affirmative, the law immediately transfers the poffefion from the tenant to the demandant. If the abatement happened on the death of one's grandfather or grandmother, then an affife of mort d' anceftor no longer lies, but a writ of ayle, or de avo ; if on the death of the great grandfather or great grandmother, then a writ of befayle, or de proavo ; but if it mounts one degree higher, to the trefayle or grtandfather's grandfather, or if the abatement happened upon the death of any collateral relation, other than thofe before-mentioned, the writ is called a writ of cofinage, or de confanguineo ^f. And the fame points fhall be enquired of in all thefe actions anceftrel, as in an affife of mort d' anceftor ; they being of the very fame nature ^g : though they differ in this point of form, that thefe anceftrel writs (like all other writs of praecipe) the affife afferts nothing directly, but only prays an enquiry whether thofe points be fo ^h. There is alfo another anceftrel writ, denominated a nuper obiit, to eftablifh an equal divifion of the land in queftion, where on the death of an anceftor, who has feveral heirs, one enters and holds the others out of poffeffion ⁱ. But a man is not allowed to have any of thefe poffeffory actions for an abatement confequent on the death of any collateral relation, beyond the fourth degree ^k ; though in the lineal afcent he may proceed ad infinitum ^l. For the law will not pay any regard to the poffeffion of a collateral relation, fo very diftant as hardly to be any at all.

IT was always held to be law ^m, that where lands were devifable in a man's laft will by the cuftom of the place, there an affife of mort d' anceftor did not lie. For, where lands were fo devifable, the right of poffeffion could never be determined by

{FS}
^f Fich. L.266,267.
^g Stat. Weftm.2 13.Edw. I.c.20.
^h 2 Inft.399.
ⁱ F.N.B.197. Finch. L.293.
^k Hale on F.N.B 221.
^l Fitzh. Abr. tit. confinage.15.
^m Bracton. l.4. de affif. mortis antecefforis, c.13.§.3. F.N.B.196.
{FE}
a pro
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a procefs, which enquired only of thefe two points , the feifin of the anceftor, and the heirfhip of the demandant. And hence it might be refonable to conclude, that when the ftatute of wills, 32 Hen. VIII. c.1. made all focage lands devifabel, an affife of mort d' anceftor no longer could be brought of lands held in focage ⁿ ; and that now, fince the ftatue 12 Car. II.c.24. which converts all tenures, a few only excepted, into free and common focage, it fhould follow, that no affife of mort d' anceftor can be brought of any lands in the kingdom ; but in cafe of abatements, recourfe muft be properly had to the more antient writs of entry.

AN affife of novel (or recent) diffeifin is an action of the fame nature with the affie of mort d' anceftor before-mentioned, in that herein the demandant's poffeffion muft be fhewn. But it differs confiderably in other points : particularly in that it recites a complaint by the demandant of the diffeifin committed, in terms of direct averment ; whereupon the fheriff is commanded to refeife the land and all the chattels thereon, and keep the fame in his cuftody till the arrival of the juftices of affife ; (which fince the introduction of giving damages, as well as the poffeffion, is now omitted ^o) and in the mean time to fummon a jury to view the premifes, and make recognition of the affife before the juftices ^p. And, if, upin the trial, the demandant can porve, firft, a title ; next, his actual feifin in confequence thereof ; and, laftly, his diffeifin by the prifent tenant ; he fhall have judgment to recover his feifin, and damages for the injury fuftained.

THE procefs of affifes in general is called, by ftature Weftm.2.13.Edw. I.c.24. feftinum remedium, in comparifon of that by writ of entry ; it not admitting of many dilatory pleas and proceedings, to which other real actions are fubject ^q. Cofts and damages were annexed to thefe poffeffory actions by the ftatute of Glocefter, 6Edw. I.c.1. before which the tenant in poffeffion was allowed to retain the intermediate profits of the land,

{FS}
ⁿ See 1 Leon.267.
^o Both.211.
^p F.N.B.177.
^q Booth.262.
{FE}
Z 2
to
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to enable him to perform the feodal burthens incident thereunto. And, to prevent frequent and vexatious diffeifins, it is enacted by the ftatue of Merton, 20 Hen. III. c.3. that if a perfon diffeifed recover feifin of the land again by affife of novel diffeifin, and be again diffeifed of the fame tenements by the fame diffeffor, he fhall have a writ of re-diffeifin ; and, if he recover therein, the re-diffeifor fhall be imprifoned ; and, by the ftatute of Marbridge, 52 Hen.III.c.8. fhall alfo pay a fine to the king : to which the ftatute Weftm. 2. 13. Edw. I. c.26. hath fuper added double damages to the party aggrieved. In like manner, by the fame ftatute of Merton, when any lands or tenements are recovered by affife of mort d' anceftor, or other jury, or any judgment of the court, if the party be afterwasrds diffeifed by the fame perfon againft whom judgment was obtained , he fhall have a writ of poft- diffeifin againft him ; whjich fubjeft the poft-diffeifor to the fame penalties as a re-diffeifor. The reafon of all which, as given by fir Edward Coke ^r, is becaufe fuch proceeding is a contempt of the king's court, and in defpite of the law ; or, as Bracton more fully expreffes it ^s, “talis qui its convictus fuerit, dupliciter delinquit contra regem : quia facit diffeifinam et roberiam contra pacem fuam ; et etiam aufu temerario irrita facita ea, quae in curiadomini regis rite acta funt : et propter duplex delictum merito fuftinere debet poenam duplicatam.”

IN all thefe pofffeffory actions there is a time of limitation fettled ; beyondwhich no man fhall avial himfelf of the poffeffion of himfelf or his anceftors, or take advantage of the wrongful poffeffion of his adverfary. F or if he be negligent for a long and unreafonable time the law refufes afterwards to lend him any affiftance, to recover the poffeffio merly ; both to punifh his neglect, (nam leges vigilantibus, non dormientibus, fubveniunt) and alfo becufe it is prefumed that the fuppofed wrongdoer has in fuch a length of time procured a legal title, otherewife he would fooner have been fued. This time of limitation by the ftatute of Merton, 20 Hen.III.c.8. and Weftm.1.3 Edw. I.c.39.

{FS}
^r 2Inft.83,84.
^s l.4.c.49.
{FE}
was
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was fucceffively dated from particular aeras, viz. from the return of king John from Ireland, and from the coronation, &c, of king Henry the third. But this date of limitation continued fo long unaltered, that it became indeed no limitation at all, it being above three hundred years from Henry the third's coronation to the year 1540, when the prefent ftatute of limitations ^t was made. This, inftead of limiting actions from the date of a particular event, as before, which in procefs of years grew abfurd, took another and more direct courfe, which might endure for ever ; by limiting a certain period, as fifty years for lands, and the like period ^u for cuftomary or prefcriptive rents, fuits, and fervices (fro there is no time of limitation upon rents referved by deed ^w) and enacting that no perfon fhould bring any poffeffory action, to recover poffeffon thereof merely upon the feifin, or difpoffeffion, of his anceftors, beyond fuch certain period. And all writs, grounded upon the poffeffion of the demadant himfelf, are directed to be fued out within thirty years after the diffeifin complained of ; for if it be an older date, it can with no propriety he called a frefh, recent, or novel diffeifin : which name fir Edward Coke informs us was originally given to this proceeding, becaufe the diffeifin muft have been fince the laft eyre or circuit of the juftices, which happened once in feven years, otherwife the action was gone ^x. And we may obferve ^y, that the limitation, prefcribed by Henry the fecond at the firft inftitution of the affife of novel diffeifin, was from his own return into England after the peace made between him and the young king his fon ; which was but the year before.

WHAT has been obferved may throw fome light on the doctrine of remitter, which we fpoke of in the fecond chapter

{FS}
^t 32 Hen.VIII.c.2.
^u So Berthelet's original edition of the ftatute, A.D.1540 : and Cay's, Pickering's, and Fuffhead's editions, examined with the record. Raftell's, and other intermediate editions, which fir Edward Coke (2 Inft.95.) and other fubfequent writers have followed. make it only forty years for rents, &c.
^w 8 Rep. 65.
^x 1 Inft. 153. Booth.210
^y See pag.184.
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of this book ^z ; and which, we may remember, was, where one who hath a right to lands, but is out of poffeffion, hath afterwards the freehold caft upon him by fome fubfequent defective title, and enters by virtue of that title. In this cafe the law remits him to his antient and more certain right, and by an equitable fiction fuppofes him to have gained poffeffion in confequence, and by virtue, thereof : and this, becaufe he cannot poffibley obtain judgment at law to be reftored to his prior right, fince he is himfelf the tenant of the land, and therefore hath nobody againft whom to bring his action. This determinatin of the law might feem fuperfluous to an hafty obferver ; who perhaps would imagine, that fince the hath now both the right and alfo the poffeffion, it little fignifies by what means fuch poffeffion fhall be faid to be gained. But the wifdom of our antient law dtermined nothing in vain. As the tenant's poffeffion was gained by a defective title, it was liable to be overturned by fhewing that defect in a writ of entry ; and then he muft have been driven to his writ of right, to recover his juft inheritance : which would have been doubly hard, becaufe, during the time he was himfelf tenant, he could not eftablifh his prior title by any poffeffory action . The law therefore remits him to his prior title puts him in the fame condition as if he had recoverd the land by writ of entry. Without the remitter he would have had jus, et feifinam, feparate ; a good right, but a bsd poffeffion : now, by the remitter, he hath the moft perfect of all titles, juris et feifinae conjunctinem.

III. By thefe feveral poffeffory remedies the right of poffeffion may be reftored to him, that is unjuftly deprived thereof. But the right of poffeffion (though it carriews with it a ftrong prefumptin) is not always conclufive evidence of the right of property, wihc may ftil fubfift in another man. For, as one man may have the poffeffion, and another the right of poffeffion, which is recovered by thefe poffeffory actions ; fo one man may have

{FS}
^z See pag.19.
{FE}
the
.P 191.
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the right of poffeffion, and cannot therefore be evicted by any poffeffory action, and another may have the right of property, which cannot be otherwife afferted than by the great and final remedy of a writ of right, or fuch correfpondent writs as are in the nature of a writ of right.

THIS happens principally in fur cafes : 1. Upon difcontinuance by the alienation of tenant in tail : whereby he, who had the right of poffeffion, hath remainder or reverfion, fhall not be allowed to recover by virtue of that poffeffon, which the tenant hath fo voluntarily transferred. 2. In cafe of judgment given againft either party by his own default ; or, 3. Upon trial of the merits, in any poffeffory action : for fuch judgment, if obtained by him who hath not the true ownerfhip, is held to be a fpecies of deforcement ; which however binds the right of poffeffion, and fuffers it not be ever again difputed, unlefs the right of property be alfo proved. 4. In cafe the demandant, who claims the right, is barred from thefe poffeffory actions by length of time and the ftatue of limitations before-mentioned : for an undifturbed poffeffion for fifty years, ought not to be devfted by any thing, but very clear proof of the abfolute right of propriety. In thefe four cafe the law apolies the remedial inftrument of either the writ of right itfelf, or fuch other writs, as are faid to be of the fame nature.

1. AND frift, upon an alienation by tenant in tail, whereby the etate-tail is difcontinued, and the remainder or reverfion is by failure of the particular eftate difplaced, and turned into a mere right, the remedy is by action of formedon, (fecundum formam doni) which is in the nature of a writ of right ^a, and is the higheft action that tenant in tail can have ^b. For he cannot have an abfolute writ of right, which is confined only to fuch as claim in fee-fimple : and for that reafon this writ of formedon was granted

{FS}
^a Finch. L.267.
^b Co. Litt.316.
{FE}
him
.P 192.
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him by the ftatute de donis or Weftm.2 13 Edw. I.c.1. which is therefore emphatically called his writ of right ^c. This writ is diftinguifhed into three fpecies ; a formedon in the defcender, in the remainder, and in the reverter. A writ of formedon in the defcender lieth, where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is diffeifed of them, and dies ; in this cafe the heir in tail fhall have this writ of formedon in the defcender, to recover thefe lands, fo given in tail, againft him who is then the actual tenant of the freehold ^d. In which action the demandant is bound to ftate the manner and form of the gift in tail, and to prove himfelf heir fecundum formam doni. A formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third perfon in tail or in fee ; and he who hath the particular eftate dieth, without iffue inheritable, and a ftranger intrudes upon him in remainder, and keeps him out of poffeffion ^c. In this cafe the remainder-man fhall have his writ of formedon in the remainder, wherein the whole form of the gift is ftated, and the hapopening of the event upon which the remainder depended. This writ is not given in exprefs words by the ftatue de donis ; but is founded upon the equity of the ftatute, and upon this maxim in law, that if any one hath a right to the land, he ought alfo to have an action to recover it. A formedon in the reverter lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs without iffue of his body the reverfion falls in upon the donor, his heris, or affigns : in fuch cafe the reverfioner fhall have this writ to revoer the lands, wherein he fhall fuggeft the gift, his own title to the reverfion minutely derved from the donor, and the failure of iffue upon which his reverfion takes place ^f. This lay at common law, before the ftatue de donis, if the donee aliened before he had performed the condition of the gift, by having iffue, and afterwards died without any ^g. The time of limitation in a formedon by ftatute 21Jac.I.c.16. is twenty years ; within

{FS}
^c F.N.B.255.
^d Ibid. 211,212.
^e Ibid.217.
^f Ibid.219. 8 Rep.88.
^g Finch.L.268.
{FE}
which
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which fpace of time after his title accrues the demandant muft bring his action, or elfe is for ever barred.

2. IN the fecond cafe ; if the owners of a partucular eftae, as for life, in dower, by the curtefy, or in fee-tail, are barred of the right of poffeffion by a recovery had againft them, through their default or non-appearance in a poffeffory action, they were abfolutely without any remedy at the common law ; as a writ of right does not lie for any but fuch as claim to be tenants of the fee-fimple. Therefore the ftatute Weftm. 2. 13 Edw. I.c.4. gives a new writ for fuch perfons, after their lands have been fo recovered againft them by default, called a quod ei deforceat ; which, though not ftrictly a writ of right, fo far partakes of the nature of none, as that it will reftore the right to him, who has been thus unwarily deforced by his own default ^h. But in cafe the recovery were not had by his own default, but upon defence in the inferior poffeffory action, this ftill remains final with regard to thefe particular eftates, as at the common law : and hence it is, that common recovery (on a writ of entry in the poft) had, not by default of the tenant himfelf, but (after his defence made and voucher of a third perfon to warranty) by default of fuch vouchee, is now the ufual bar to cut off an eftate-tail ⁱ.

3,4. THIRDLY, in cafe the right of poffeffion be barred by a rocovery upon the merits in a poffeffory action, or, laftly, by the ftute of limitations, a claimant in fee-fimple may have a mere writ of right ; which is in it's nature the higheft writ in the law ^k, and lieth only an eftate in fee-fimple, and not for him who hath a lefs eftate. This writ lies concurrently with all other real actions, in which an eftate of fee-fimple may be recovered ; and it alfo lies after them, being as it were an appeal to the mere right, when judgment hath been had as to the poffeffion in an

{FS}
^h F.N.B.155.
ⁱ See book II. ch.21.
^k F.N.B.1.
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inferior
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inferior poffeffory action ^l. But though a writ of right may be brought, where the demandant is entitled to the poffeffion , yet it rarely is advifable to be brought in fuch café ; as more expeditious and eafy remedy is had, without meddling with the property, by proving the demandant's own, or his anceftor's, poffeffion , and their illegal oufter, in one of the poffeffory actions. But in café the right of poffeffion be loft length of time, or by judgment againft the true owner in one of thefe inf3erior fuits, there is no other choice : this is then the only r3emedy that can be had ; and it is of fo forcible a nature, that it overcomes all obftacies, and clears all objections that may have arifen to cloud and obfcure the title, And, after iffue once joined in a writ of right, the judgment is abfolutly final ; fo that a recovery had in this action may e pleaded in bar of any other claim or demand ^m.

THE pure, proper, or mere writ of right lies only, we have faid, to recover lands in fee-fimple , unjuftly withheld from the true proprietor. But there are alfo other writs which are faid to be in the nature of a writ of right, becaufe their procefs and proceddings do moftly (though not intirely) agree with the writ fo right : but in fome of them the fee-fimple is not demandant ; and in others not land, but fome incorporeal hereditament. Some of thefe have been already mentioned, as the writ of right of dower, of formedon, &c : and the others will hereafter be taken notice of, under their proper divifions. Nor is the mere writ of right alone, or always, applicable to very café of a claim of lands in fee-fimple : for if the lord's tenant in fee-fimple dies without heir, whereby an efcheat accrues, the lord fhal have a writ of efcheat ⁿ, which is in the nature of a writ of right ^o. And if one of two or more coparceners deforces the other, by ufurping the fole poffeffion, the party aggriedved fhall have a writ of right de rationabili parte ^p : which may be grounded on the feifm of the

{FS}
^l F.N.B.1.5.
^m Ibid.6. Co. Litt. 158.
ⁿ F.N.B.143.
^o Booth.135.
^p F.N.B.9.
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anceftor
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anceftor at any time during his life ; whereas in a nuper obiit (which is a poffeffory ^q) he muct be feifed at the time of his death . But, waving thefe and other minute diftinctions, let us now return to he general writ of right.

THIS writ ought to be firft brought in the court-baron ^r of the lord, of whom the lands are holden ; and then it is open or patent : but if he holds no court, or hath waived his right, remifit curiam fuam, it may be brought in the king's courts by writ of praecipe originally ^s ; and then it is a writ of right clofe ^t, being directed to the fheriff and not the lord ^u. Alfo, when one of the king's immediate tenants in capite is deforced, his writ of right is called a writ of praecipe in capite (the improper ufe of which, as well as of the fromer praecipe, quia dominus remifit curiam, fo as to ouft the lord of his jurifdiction, is reftrained by magna carta ^w) and, beingdirected to the fheriff and originally returnable in the king's court, is alfo a writ of right clofe ^x. There is likewife a little writ of right clofe, fecundum confuetudinem manerii, which lies for the king's tenants in antient demefne ^y, and others of a fimilar nature ^z, to try the right of their lands and tenements in the court of the lord exclufively ^a. But the writ of right patent itfelf may alfo at any time be removed into the county court, by writ of tolt ^b, and from thence into the king's courts, by writ of pone ^c or recordari facias, at the fuggeftion of either party that there is a delay or defect of juftice ^d.

IN the progrefs of this action ^e, the demandant muft allege foem feifin of the lands tenements in himfelf, or elfe in fome

{FS}
^q See pag.186.
^r Append. N^o.I.§.1.
^s F.N.B.Z. finch. L.313.
^t Booth.91.
^u Append. N^o.I.§.4.
^w c.24
^x F.N.B.5.
^y See book II. ch.6.
^z Kitchen. tit. copyhold.
^a Bracton.l.1. c.11.l.4.tr.1.c.9.& tr.3. c.13. §.9. Old. Tenur. t. tenir en focage. Old N.B.t. garde. &t. br iefe de recto claus. F.N.B.11.
^b Append. N^o.I. §.2.
^c Ibid. §.3.
_d F.N.B.3.4.
^e append. N^o.I. §.5.
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perfon
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perfon under whom he claims, and then derive the right from the perfon fo feifed to himfelf ; to which the tenant may anfwer by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand them ; which puts the demandant upon the proof of his title : in which if he fails, or if the tenant can fhew a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is fuperior to the tenant's he fhall recover the land againft the tenant and his heirs for ever. But even this writ of right, however fuperior to any other, cannot be fued out at any diftance of time. For by the antient law no feifin could be alleged by the demandant, but from the time of Henry the firft ^f ; by the ftatute of Merton, 20 Hen. III. c.8. from the time of Henry the focond ; by the ftatute of weftm. 1. 3 Edw. I.c.39. from the time of Richard the firft ; and now, by ftatute 32Hen. VIII. c.2. feifin in a writ of right fhall be within fixty years. So that the poffeffion of lands in fee-fimple uninterruptedly, for threefcore years, is at prefent a fufficient title againft all the world ; and cannot be impeached by any dormant claim whatfoever.

I HAVE now gone through the feveral fpecies of injury by oufter or difpoffeffion of the freehold, with the remedies applicable to each. In confidering which I have been unavoidably led to touch upon much obfolete and abftrufe learning, as it lies intermixed with, and alone can explain the reafon of, thofe parts of the law which are now more generally in ufe. For, without contemplating the whole fabric together, it is impoffible to form any clear idea of the meaning and connection of thofe disjointed parts, which ftill form a confiderable branch of the modern law ; fuch as the doctrine of entries and remitter, the levying of fines, and the fuffering of common recoveries. Neither indeed is any confiderable part of that, which I have felected in this chapter from among the venerable monuments of our anceftors, fo abfo-

{FS}
^f Co. Litt.144.
{FE}
lutely
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lutely antiquated as to be out of force, though they are certainly out of ufe : there being, it muft be owned, but a very few inftances for more than a century paft of porfecuting any real action for land by writ of entry, affife, formedon, writ of right, or otherwife. The forms are indeed preferved in the practice of common recoveries : but they are forms, and nothing elfe ; for which the very clerks that pas them are feldom capable to affign the reafon. But the title of lands is now ufually tried upon actions of ejectment, or trefpafs.

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